Adolph Coors Co. v. Globe Dist. CV-92-447-JD 03/29/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Adolph Coors Company

v. Civil No. 92-447-JD

Globe Distributors, Inc., et al.

Globe Distributors, Inc., et al.

v. Civil No. 92-496-JD

Adolph Coors Company

O P I N I O N

In its order and memorandum opinion of May 27, 1992, the

Bankruptcy Court awarded the plaintiffs. GlobeDistributors, Inc.

and Dennis Bezanson, Trustee ("Globe")a thereasonableattorney's

fees and costs accrued during its successful litigation against

the defendant, Adolph Coors Co. ("Coors"). Before the court is a

consolidated appeal of the Bankruptcy Court's order. The court's

appellate jurisdiction is based on

(a) (1993) .

Background

I. Underlying Proceedings

On October 25, 1985, Globe, a beer distributor, entered into

a five-year distributionagreementwith Coors. Globe's sales

skyrocketed and at onepoint it was the second or third most successful Coors distributor in the region. However, during the

summer of 1988 the company began to experience cash flow

difficulties and on October 18, 1988, Coors announced that it was

going to terminate product shipment because it believed Globe was

no longer financially capable of properly servicing the market.

Globe filed a chapter 11 bankruptcy petition on December 22,

1988 .

Globe filed this adversary action alleging that Coors

violated its contractual obligations and state law when it

terminated the distributorship agreement. The bankruptcy court

dismissed a number of Globe's legal theories and heard the

remaining ones during a four day trial in October 1990.

In a memorandum opinion issued on May 31, 1991, the bank­

ruptcy court ruled that: (1) Coors breached the distributorship

agreement with Globe and violated the Wholesale Fair Dealing

Agreements for the Distribution of Fermented Malt Beverages Act,

N.H. Rev. Stat. Ann. ("RSA") § 181:36 et seq.; (2) Coors breached

the common law duty of good faith and fair dealing; and (3) Coors

engaged in unfair or deceptive practices in violation of the

consumer protection act, RSA § 358-A:l et seq. The bankruptcy

court awarded Globe $5,166,118 in "actual damages" which was

doubled under the consumer protection act. The bankruptcy court

2 further awarded Globe its reasonable attorney's fees and costs,

again under the consumer protection act.

II. Fees and Costs

In an order and memorandum opinion issued on May 27, 1992,

the bankruptcy court ordered Coors to pay Globe's attorneys, the

law firm of Wadleigh, Starr, Peters, Dunn & Chiesa ("Wadleigh")

$296,348.00 in fees and $2,536.11 in expenses. Globe Dis­

tributors, Inc. v. Adolph Coors Co., Adv. No. 88-97, slip op. at

17 (Bankr. D.N.H. May 27, 1992) . When computing the attorney's

fees, the bankruptcy court accepted Wadleigh's claim that it

expended 1,376 attorney and paralegal hours handling the

litigation which, at the firm's regular hourly rates, yields a

fee of $148,174. Id. at 2-3. The bankruptcy court then doubled

this figure, reasoning that under federal law the circumstances

of the case warranted a fee multiplier of two. Id. at 15.

The computation of the attorney fee award is the subject of

this consolidated appeal. The bankruptcy court ruled that

because the fees were awarded under the New Hampshire consumer

protection act, RSA § 358-A:10, the actual amount of the award is

to be calculated according to state law. Id. at 7-8, n.8.

However, the bankruptcy court, constrained by the apparent

absence of state law setting out the "applicable standards or

3 methods" for determining the fee, concluded that the federal

"lodestar" method best approximates what a New Hampshire court

would apply under the fee-shifting provisions of the consumer

protection act. Globe Distributors, Inc. v. Adolph Coors Co.,

Adv. No. 88-97, slip op. at 4 (Bankr. D.N.H. Aug. 6, 1992).

In its application of state law, the bankruptcy court

rejected Wadleigh's original reguest that it receive approx­

imately $4.2 million, or one-third of Globe's damage award, under

its contingency fee arrangement with the plaintiffs. Globe

Distributors, slip op. at 14-15 (Bankr. D.N.H. May 27, 1992) .

Rather, the bankruptcy court applied the criteria of Furtado v.

Bishop,

(1st Cir. 1980), and other federal

cases to determine the lodestar fee award. Id. at 7-10, 14-16.

The bankruptcy court next found that "the risk of nonpayment

deserves some multiplier or upward adjustment . . .[and] a

multiplier of two is reasonable." Id. at 15.

On August 6, 1992, the bankruptcy court denied Globe's

motion to reconsider the fee award. Globe Distributors, slip op.

at 1 (Bankr. D.N.H. Aug. 6, 1992). Coors' appeal and Globe's

cross-appeal followed and have been consolidated into the instant

action.

4 Discussion

Coors appeals the order on several grounds, inter alia, that

the risk of nonpayment does not as a matter of law justify a

lodestar multiplier of two; that the bankruptcy court erroneously

awarded fees for legal services unrelated to the adversary

proceeding; and that Globe's entire fee application should be

dismissed for its lack of good faith. Brief for the Appellant,

Adolph Coors Co. ("Coors Brief") at 1, 9-10. Globe cross-appeals

the order on several grounds, inter alia, that New Hampshire has

not adopted the federal lodestar method; that New Hampshire law

places greater weight on the risk of nonpayment and the existence

of a contingency fee agreement; and that the application of

federal law denied Globe egual protection of the law. Brief of

Globe Distributors, Inc. and Dennis Bezanson, Trustee ("Globe

Brief") at 1, 7-9.

I. Standard of Review

District courts have jurisdiction to hear appeals of "final

judgments, orders, and decrees" of the bankruptcy court.

(a) (West 1993). The court reviews "legal

determinations de novo and factual findings on a clearly

erroneous standard." In re DN Associates,

(1st

Cir. 1993) (guoting In re Gonic Realty Trust,

, 626

5 (1st Cir. 1990); citing In re G .S .F . Corp.,

(1st Cir. 1991)). "A finding of fact is 'clearly erroneous'

when, after reviewing the evidence, the [court] is 'left with the

definite and firm conviction that a mistake has been committed.'"

In re G.S.F. Corp.,

. Moreover, the court grants

considerable deference to "factual determinations and

discretionary judgments made by a bankruptcy judge, such as may

be involved in calculating and fashioning appropriate fee awards

. . . ." In re DN Associates,

.

Historically, bankruptcy courts have been accorded wide discretion in connection with fact-intensive matters, and in regard to the terms and conditions of the engagement of professionals . . . . The bankruptcy judge is on the front line, in the best position to gauge the ongoing interplay of factors and to make the delicate judgment calls which such a decision entails.

(guoting In re Martin,

(1st Cir. 1987)).

II. New Hampshire Law Governs the Calculation of a Reasonable Attorney's Fee Awarded under RSA § 358-A

Globe, as the prevailing party under the consumer protection

act, is entitled to receive litigation costs and "reasonable

attorney's fees." RSA § 358-A:10 (1984). New Hampshire law

governs the availability and determination of the "reasonable"

fee. Northern Heel Corp. v. Compo Indus., Inc.,

(1st Cir. 1988); see Blanchette v. Cataldo,

(1st Cir. 1984) ("where an award of fees or costs rests on state

6 law, state law also controls the method of calculating the size

of the award"). However, where "state law is devoid of specific

self-contained criteria . . . or seems silent or incomplete on

the manner of calculation, . . . federal standards may well

become relevant." Northern Heel,

, n.ll

(quotations omitted).

The fee-shifting provisions of RSA § 358-A:10 do not specify

the proper method for calculating an award under the act. See

RSA § 358-A:10. The act does invite courts to be "guided by the

interpretation and construction given section 5(a)(1) of the

Federal Trade Commission Act (15 U.S.C. 45(a) (1)), by the Federal

Trade Commission and the federal courts." RSA § 358-A:13; see

Rousseau v. Eshleman,

,

(1986)

(dissenting opinion) ("courts often look to cases decided under

the antitrust laws in construing cases under the Federal Trade

Commission Act"). Moreover, the act tracks the language of the

Massachusetts consumer protection act, Mass. Gen. L. ch. 93A, and

New Hampshire courts have frequently relied on Massachusetts law

when interpreting RSA § 358-A. Chroniak v. Golden Inv. Corp.,

, 1146, n.ll (1st Cir. 1993) (citing Chase v.

Dorais,

,

(1982)); Donovan

v. Digital Equipment Corp, No. 93-97-JD, slip op. at 23-25

(D.N.H. Dec. 13, 1994) (construing RSA § 358-A according to

7 Massachusetts law); see Roberts, 138 N.H. at 532, 643 A.2d at 960

(expressly adopting statutory construction of the Massachusetts

Appeals Court); see also McClarv v. Erie Engine & Mfg. Co., No.

93-521-SD, slip op. at 3-4 (D.N.H. November 23, 1994) (expressly

relying on decision of the Massachusetts Appeals Court).

Although there are no reported decisions which set out the

proper method for calculating attorney's fees awarded under RSA §

358-A:10, New Hampshire courts routinely determine whether a fee

award is "reasonable" in the context of other fee-shifting

statutes or common law exceptions to the ordinary rule that

litigants bear their own fees and costs. E.g., McCabe v. Arcidv,

,

(1993) (determination of

"reasonableness of a fee" in context of attorney lawsuit to

recover from guarantor of client under written fee agreement);

City of Manchester v. Doucet,

,

(1990) (determination of "reasonable counsel fees" in context

of workers' compensation statute, RSA § 281:37-A); Cheshire

Tovota/Volvo, Inc. v. O'Sullivan,

,

(1989) (same); Funtown USA, Inc. v. Town of Conway,

,

(1987) (determination

of "reasonableness" of attorney's fee awarded following bad faith

or frivolous appeal, N.H. Sup. C t . R. 23). New Hampshire courts

enjoy broad discretion when calculating a reasonable attorney's fee, e.g.. Drop Anchor Realty Trust v. Hartford Fire Ins. Co.,

,

(1985) (quoting In re

Bergeron Estate,

,

(1977)),

and are guided by several criteria drawn from the New Hampshire

Rules of Professional Conduct:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and the ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

McCabe,

,

(citations omitted); see

N.H. Rules of Professional Conduct 1.5 (1990). "There can be no

rigid, precise measure of reasonableness, however, because the

weight accorded each factor depends on the circumstances of each

particular case." McCabe, 138 N.H at 29,

. Prevailing litigants, particularly in the workers'

compensation area, have received attorney's fee awards based on a

contingency agreement. E.g., Couture v. Mammoth Groceries, Inc.,

,

(1977) (award based on

percentage of plaintiff's recovery held reasonable). Although

the court may model a fee award after a contingency agreement,

this is merely one approach and, regardless of the method of

calculation, the ultimate award must be reasonable under the

established criteria. See Doucet,

,

("While a contingent fee arrangement is not to be 'rubber

stamped,' it is one of a number of factors for a court to

consider in determining a reasonable fee.") (guoting Cheshire

Tovota/Volvo,

,

); Corson v. Brown

Prods, Inc.,

,

(1980)

(rejecting argument that court is bound by contingent fee

arrangement when calculating reasonable fee award under workers'

compensation statute); see also Mammoth Groceries,

,

(contingent fee arrangement neither per

se reasonable nor per se unreasonable).

III. New Hampshire Has Not Adopted the Federal Lodestar Method

In its cross-appeal. Globe argues that the Bankruptcy Court

erroneously adopted the federal lodestar method when it should

10 have calculated attorney's fees according to state law criteria,

including a consideration of the contingent fee agreement and the

attendant risk of nonpayment. Globe Brief at 10-17. In

contrast, Coors asserts that the federal lodestar approach is an

appropriate method for fee calculation under New Hampshire law.

Reply Brief for the Appellant, Adolph Coors Co. ("Coors Reply

Brief" ) at 2-8.

The bankruptcy court correctly observed that "neither the

legislative history . . . nor New Hampshire case law specifically

sets forth the applicable standards or method for determining the

amount of reasonable attorney's fees under the consumer

protection act." Globe Distributors, slip op. at 3 (Bankr.

D.N.H. Aug 6, 1992). Despite the absence of direct authority on

the issue, the supreme court has articulated the criteria to be

used when determining a "reasonable" fee to be awarded under

various statutory and common law fee shifting schemes. The court

finds that the criteria, supra, are sufficiently developed and

well-suited for the calculation of an award under RSA § 358-A:10

to obviate the need to adopt the federal lodestar method or to be

guided by methods employed in other jurisdictions. C f . Northern

11 Heel,

, n.ll (federal standards relevant where

state law is incomplete, silent or devoid of criteria).1

The bankruptcy court recognized that the federal lodestar

method incorporates several of the factors outlined in the New

Hampshire Rules of Professional Conduct and subsequently adopted

1Coors asserts that "state and federal courts in New Hampshire apply the lodestar method in determining the reasonable amount to be awarded under fee-shifting statutes" and, thus, the bankruptcy court correctly adopted the federal method as a matter of state law. Coors Reply Brief at 2; Coors Brief at 10-11, n.2 (citing Refuse & Env. Svs., Inc. v. Industrial Servs. of America,

(D. Mass 1990), aff'd in part, rev'd in part, 932 F .2d 37 (1st Cir. 1991); Funtown USA,

,

; Rousseau,

,

(dissenting opinion); Scheele v Village Dist. of Edelweiss,

,

(1982)). The argument fails because it is based on a misreading of the cited authority. First, because New Hampshire has formulated its own fee calculation criteria the court need not determine the proper method by crude analogy to federal antitrust law or to the incorrect interpretation of Massachusetts law by a federal court sitting in that state. See Rousseau,

,

(dissenting opinion) (antitrust law used to construe Federal Trade Commission Act); Refuse, 932 F.2d at 44-45 (lodestar fee award granted under state consumer protection statute remanded for calculation under state law criteria). Second, the supreme court did not adopt the federal lodestar method in Scheele but rather used it to calculate an award under

, a federal civil rights statute. See 122 N.H. at 1020-21,

. Finally, although the special master who recommended the fee award in Funtown USA "also noted" that the amount requested would be reasonable under the lodestar method, on appeal the supreme court reviewed the reasonableness of the award by applying the state law criteria adopted from the Rules of Professional Conduct. See

,

. The court finds that, as a matter of New Hampshire law, the lodestar method is an incorrect basis upon which to calculate fees awarded under the state consumer protection statute.

12 by the state supreme court. As a practical matter the

similarities may result in the same or a similar fee award under

either the lodestar or the New Hampshire approach. However, the

fact that the two approaches may yield the same result in a given

case does not justify the application of the federal method of

calculation where state statute provides the rule of decision and

the fee-shifting remedy and where the state has adopted its own

method of calculation. See Refuse, 932 F.2d at 44 ("The award of

attorney's fees [under Massachusetts consumer protection law]

must, of course, be governed by Massachusetts law."). In Refuse,

the First Circuit ruled that the lodestar method was incorrectly

used to calculate an award under the fee shifting provisions of

the Massachusetts consumer protection act notwithstanding the

district court's conclusion that the Massachusetts approach

"would produce the same results." Id. at 44-45. The case was

remanded for re-calculation according to the state law criteria

for determining a reasonable fee. Id.

The court finds the bankruptcy court correctly ruled that

New Hampshire law governs the calculation of fee awarded under a

state statute but erred in its application of state law by

erroneously employing the federal lodestar method of

13 calculation.2 This case must be remanded for the calculation of

a reasonable attorney's fee award under the New Hampshire common

law criteria.

IV. Fee Arrangements Are Properly Considered Under the New Hampshire Criteria Even if They Do Not Comport With RSA § 508:4-e and the Rules of Professional Conduct.

Coors also asserts that the contingency agreement is an

improper basis upon which to calculate a fee award because

Wadleigh failed to file a written agreement with the bankruptcy

court at the time of pleading as reguired by state law. Coors

Brief at 12-14, n.4 (citing RSA § 508:4-e (Supp. 1993); N.H.

Rules of Prof. Conduct 1.5(c)). Coors further asserts that

Wadleigh has "forefeit[ed] rights to compensation" by failing to

secure from the bankruptcy court prior approval of the con­

tingency arrangement as reguired by federal law. Id. (citations

2Coors also argues that the bankruptcy court incorrectly enhanced the fee award to reflect the contingency agreement and Wadleigh's attendant risk of nonpayment. Coors Brief at 14 (citing City of Burlington v. Dague, 112 S. C t . 2638 (1992)). Coors is correct that "enhancement for contingency is not per­ mitted under the [federal] fee-shifting statutes at issue" in Dague. Id. at 2644. However, given the ruling, supra, that the lodestar method does not govern a fee award under RSA § 358-A:10, the court is not bound by the Supreme Court's interpretation of the federal method. Indeed, the New Hampshire criteria ex­ plicitly reguire consideration of whether the fee was fixed or contingent. See, e.g., McCabe,

,

.

14 omitted). Somewhat inexplicably. Globe has not responded to the

argument. See Globe Brief.

Coors' federal law argument fails because state law governs

the fee award in this case. However, the state law argument does

present guestions about the validity and enforceability of a

contingent fee agreement executed in disregard of the statutory

formalities. In New Hampshire,

all written contingency fee agreements entered into pursuant to Rule 1.5(c) of the Rules of Professional Conduct shall be filed with the court at the time of the entry of pleadings by the plaintiff's attorney.

RSA § 508:4-e (III) .

The bankruptcy court addressed the argument in its May 27,

1992, order and found that "the fee agreement between plaintiff

Globe and their counsel is a contract between those parties, and

has no binding effect upon this Court's determination of a

'reasonable fee' to be paid by the losing defendant in this

litigation." Globe Distributors, slip op. at 5 (Bankr. D.N.H.

May 27, 1992).

The court, constrained by the incomplete record filed with

the appeal, cannot determine whether Globe has, indeed, failed to

satisfy these reguirements. However, neither party nor their

attorneys have attempted to enforce the contingency agreement

and, as such, the guestion of whether the agreement satisfies the

statutory reguirements for enforceability is irrelevant.

15 Moreover, Coors does not challenge the veracity of the affidavits

submitted by Globe as evidence of the contingency agreement.

Coors Brief at 13, n.4 ("[The] writing and prior approval

reguirement prevent a fee applicant from submitting an

opportunistic claim to a contingency fee after the fee has been

ordered to be paid by another party. . . . Coors is not

suggesting that this occurred here."). There is apparently no

dispute that a court applying the New Hampshire fee criteria may

consider the nature of the attorney's employment arrangement,

even if that arrangement may not be enforceable against the

client. The court finds that any failure to satisfy the

statutory reguirements does not prevent the bankruptcy court from

relying on the "fixed or contingent fee" factor when it re­

calculates the award under the New Hampshire common law criteria.

V. Failure to Discount Award to Reflect Attorney Resources Expended on Unrelated Matters.

Coors alleges the bankruptcy court erroneously awarded Globe

fees for legal services expended on dismissed claims, failed

claims, the unsuccessful defense of counterclaims, and other

legal matters unrelated to the adversary proceeding. Coors Brief

at 16.3 Globe responds that the bankruptcy court's decision to

3Coors advances strong federal authority, including Hensley v. Eckerhart,

(1983), for the proposition that under the federal lodestar approach the court "may attempt to identify

16 include these legal services in the fee calculation constitutes a

discretionary ruling entitled to deference on appeal. See Globe

Brief at 24.

New Hampshire courts consider the "time and labor reguired"

for a particular task when applying the fee determination

criteria. See, e.g., McCabe,

,

.

Attorney resources expended on claims which are "analytically

separate," "distinct," and "severable" from the claim upon which

the fee award is based cannot be considered "time and labor

reguired" for purposes of calculating a fee award. See Funtown

USA,

,

; see also McCabe,

,

.

The bankruptcy court addressed the substance of Coors'

present argument in its May 27, 1992, order:

Coors objects that, because some of the counts of plaintiffs' original Complaint were stricken, because plaintiffs only prevailed on three of the nine counts in their Complaint, and because plaintiffs were unsuccessful in their defense of Coors' counterclaims, plaintiffs should not recover attorneys' fees for time spent on those matters.

specific hours that should be eliminated, or it may simply reduce the award to account for the limited success" of certain attorney efforts.

. However, the fee award in this case is not properly calculated under the lodestar method and, therefore, the court is not bound by judicial interpretations of that method. See Funtown USA,

,

- 85 ("Hensley is not controlling authority" on awards calculated under state law fee-shifting schemes).

17 In my judgment, the hours expended by plaintiffs' counsel on the litigation involved in this adversary proceeding clearly were not excessive, nor were the hourly rates anything but reasonable in terms of the complexity and toughness that the lawsuit presented. . . . I find that the matters upon which plaintiffs were unsuccessful were relatively minor and were subsumed into the entire litigation. Accordingly, plaintiffs' failure to prevail on certain claims, for one reason or another, should not result in a reduction of their counsel's hours in the context of this "reasonable fee" determination.

Globe Distributors, slip op. at 3-4 (Bankr. D.N.H. May 27, 1992)

(emphasis supplied) (footnotes omitted).

The bankruptcy court, having presided over the myriad of

proceedings underlying the instant appeal, is intimately familiar

with the progress of the case and therefore is best eguipped to

make the "factual determinations and discretionary judgments

. . . involved in calculating and fashioning appropriate fee

awards." See In Re DN Associates,

. The

determination of which services are sufficiently related to the

adversary proceeding to be properly compensable under the fee-

shifting statute necessarily involves a "fact-intensive" analysis

accorded wide discretion on appeal. See

(guoting In re

Martin,

). Of course, even under the court's

deferential standard of appellate review, findings of fact may be

set aside if "clearly erroneous" or contrary to applicable law.

Because the case is remanded for a re-calculation of the fee

award under the New Hampshire criteria, the court need not

18 determine whether the bankruptcy court's findings relative to the

inclusion of all claimed hours is clearly erroneous.

VI. Constitutional Issues

In its cross-appeal Globe argues that the bankruptcy court's

application of the lodestar method unconstitutionally created

"two classifications of plaintiffs and defendants [in] violat[ion

of] the egual protection rights of Globe and others in its

position under New Hampshire law." Globe Brief at 20. Given the

ruling, supra, that the lodestar method does not govern the

determination of a RSA § 358-A:10 fee award, the court need not

determine whether the bankruptcy court's error was of a

constitutional dimension.

VII. Neither Party Has Litigated in Bad Faith

As an additional grounds for appeal Coors asserts that

Globe's petition for a fee award of more than four million

dollars constitutes an "inexcusable reaching" and "opening

gambit" such as to warrant a rejection of the entire fee petition

under Lewis v. Kendrick,

(1st Cir. 1991) . Coors

Brief at 28. Globe responds that Lewis does not govern fee

awards under RSA § 358-A:10 and, even if First Circuit law did

control, that it filed the fee petition in good faith under New

19 Hampshire law. Globe Brief at 27-28. Globe next asserts that

Coors' Lewis argument lacks a legal basis and "should be

sanctioned as frivolous." Id. at 28 ("[I]t is actually Coors

which is acting in bad faith . . .").

The court takes a dim view of these cross accusations of bad

faith lawyering as they reflect poorly on counsel, they cloud the

legitimate legal issues presented by each party to this appeal,

and they unnecessarily consume judicial resources.

The dominant issue on appeal is whether the bankruptcy court

correctly relied on the federal lodestar method when calculating

the RSA § 358-A:10 fee award. Although the court has ruled that

the bankruptcy court incorrectly employed the lodestar method,

the reliance on federal law was not an obvious error. Thus, it

was entirely appropriate for Coors also to base its argument on

federal caselaw construing the lodestar method, such as the First

Circuit's recent decision in Lewis. By the same token. Globe's

argument that New Hampshire law governs the fee calculation had

merit when unsuccessfully advanced before the bankruptcy court

and, in fact, has prevailed before this court. Specifically, New

Hampshire courts have in the past held fees calculated under a

contingency agreement to be "reasonable" and, thus. Globe had a

good faith basis to petition for a full one-third recovery, even

20 though such a fee award would be disporportionately greater than

that calculated under the traditional hourly billing method.

The court finds that Globe's conduct does not warrant an

outright rejection of its fee petition under Lewis, as argued by

Coors. Likewise, the court finds Coors' Lewis argument (i.e.

that the fee petition be rejected outright) does not warrant

sanctions, as argued by Globe.

VIII. Interest Rate Calculation

Coors and Globe each raise arguments in their respective

briefs concerning the appropriate rate of interest to be applied

to the damages awarded following the adversary proceeding. See

Globe Brief at 22-24; Coors Reply Brief at 11-16.

The bankruptcy court's orders of May 27, 1992, and August 6,

1992, are the subjects of this appeal. These orders only concern

Globe's petition for fees under RSA § 358-A:10 and did not

purport to resolve any other dispute or legal issue relative to

the adversary proceeding. The court need not consider the merits

of the apparent dispute involving interest calculation since the

issue was not addressed in the bankruptcy court orders now on

appeal.

21 Conclusion

The court finds that, as a matter of state law, fees awarded

under RSA § 358-A:10 are to be calculated according to the New

Hampshire common law criteria and not by the federal lodestar

method. The case is remanded to the bankruptcy court for the re­

calculation of Globe's reasonable attorney's fees in a manner

consistent with this opinion. The clerk's office is ordered to

close this case and to forward a copy of this opinion to the

bankruptcy court.

SO ORDERED.

Joseph A. DiClerico, Jr, Chief Judge March 29, 1995

cc: Kenneth E. Churbuck, Esguire William S. Gannon, Esguire Charles A. Szypszak, Esguire Earle D. Bellamy II, Esguire Peter W. Mosseau, Esguire George Vannah, U.S. Bankrupcy Court

22