2011 Ct. Sup. 3599
No. CV 09-4043592-SConnecticut Superior Court Judicial District of Hartford at Hartford
January 26, 2011
MEMORANDUM OF DECISION FOLLOWING HEARING IN DAMAGES
I PROCEDURAL HISTORY
By memorandum of decision dated April 23, 2010, this court granted summary judgment in favor of the original plaintiffs in this declaratory judgment action. Gallo v. McCarthy, 51 Conn.Sup. 425, 2 A.3d 56 (2010). At the time of the decision, the original plaintiffs were A. Gallo
Company, Allan S. Goodman, Inc., Dichello Distributors, Inc., Dwan
Company, Inc, F F Distributors, Inc., Franklin Distributors, Inc., G G Beverage Distributors, Inc., Hartford Distributors, Inc., Levine Distributing Co., Inc., Northeast Beverage Corp. of Connecticut, Star Distributors, Inc., and Pepsi Cola Newburgh Bottling Co., Inc. (original plaintiffs). Id., 428. The defendants are Amy Marella, in her official capacity as the commissioner of the department of environmental protection, George Jepsen, in his official capacity as attorney general, and Dannel Malloy, in his official capacity as governor.
The decision determined that certain provisions of Public Acts 2009, No. 09-01, affected a retroactive taking of the plaintiffs’ property Id., 452. That act mandated that unclaimed beverage container deposits that had accumulated from December 1, 2008 through March 31, 2009, and were held in special accounts established by the plaintiffs, would be turned over to the general fund. Id., 432-34. The court concluded that the mandated transfer of these funds resulted in an impermissible taking, in violation of the fifth and fourteenth amendments to the United States constitution and article first, § 11, of the constitution of Connecticut, and ordered the parties to proceed to a hearing to determine compensation damages. Id., 452.
On August 2, 2010, the court allowed the following plaintiffs to intervene in this matter: Adirondack Beverages Corp., Bottling Group, LLC, Coca-Cola Bottling Company of Northern New England, Inc., Coca-Cola Enterprises, Inc., Polar Beverages and Windham Pepsi-Cola Bottling Co., CT Page 3600 Inc. (Intervening plaintiffs).
The hearing in damages proceeded by way of stipulations and briefs. The parties stipulated that the total amount transferred from the plaintiffs’ special accounts, for the period from December 1, 2008 through March 31, 2009, totals $5,675,310.44.
The court acknowledges the defendants’ position that the plaintiffs are not entitled to compensation damages because they have not suffered economic harm. The thrust of the defendants’ argument is that the plaintiffs could have taken steps, presumably by raising prices for their products, to avoid any economic harm from the loss of unclaimed deposits brought about by Public Act 09-01. Earlier, the court indicated that it did not agree with the defendants, and affirmed its position that the effect of the act was to take the plaintiffs’ property, which constituted economic harm. Nevertheless, the court acknowledges that the defendants have preserved this issue in the event of an appeal.
In addition to compensation damages representing the amounts transferred from their accounts, the plaintiffs also seek attorneys fees, prejudgment and postjudgment interest, offer of judgment interest, and costs.
As indicated earlier, the original plaintiffs and the intervening plaintiffs have stipulated with the defendants as to the amount that they have individually paid to the general fund pursuant to Public Act 01-09. In accordance with its earlier decision, the court finds that each plaintiff is entitled to compensation damages equal to the stipulated amount that they turned over to the general fund.
In this action to enforce provisions of 42 U.S.C. § 1983,  which prohibits constitutional violations under state authority, the original plaintiffs are the prevailing parties,  and, thus, are entitled to an allowance of a reasonable attorneys fee, pursuant to 42 U.S.C. § 1988. The attorneys for the original plaintiffs, the firm of Carmody
CT Page 3601 Torrance LLP, have submitted an affidavit regarding attorneys fees, dated August 30, 2010 and a supplemental affidavit regarding attorneys fees, dated October 12, 2010, that includes an attachment entitled “Matter Worked Detail Report.” This report contains the names of the timekeeper, along with entries for the date, hours, rates and description of the work for each entry. The amount of attorneys fees claimed in the supplemental affidavit totals $160,572.50.
A review of the affidavits indicates that approximately ninety-seven percent of the claimed fees were generated by three attorneys. Attorney James K. Robertson, a partner, billed at a rate of $405 per hour in 2009 and $425 per hour in 2010, worked 109.4 hours and submitted fees in the amount of $45,007. Attorney David S. Hardy, a partner, billed at a rate of $250 per hour in 2009 and $275 per hour in 2010, worked 264.2 hours, and submitted fees of $68,797.50. Attorney Sherwin M. Yoder, an associate, billed at a rate of $195 per hour in 2009 and $200 per hour in 2010, worked 215 hours and submitted fees of $42,114.50. These amounts included good faith estimates for services in connection with the hearing in damages. The defendants declined the opportunity to formally challenge the amount requested. See Smith v. Snyder, 267 Conn. 456, 479 n. 14, 839 A.2d 589 (2004) (defendants had undisputed right to fully litigate reasonableness of attorneys fees, however, they failed to object or respond to request for such fees).
It should be noted that the American Beverage Association filed an amicus curiae brief in support of the plaintiffs’ motion for summary judgment. This brief complimented, rather than duplicated, the briefs submitted by the plaintiffs.
In Ernst v. Deere Co., 92 Conn.App. 572, 576, 886 A.2d 845
(2005), the court summarized the established procedure for judicial determination of reasonable attorneys fees. “[T]he initial estimate of a reasonable attorneys fee is properly calculated by multiplying the number of hours reasonably expended on the litigation times a reasonable hourly rate . . . The courts may then adjust this lodestar calculation by other factors . . . For guidance in adjusting attorneys fees, Connecticut courts have adopted the twelve factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). The Johnson
factors are (1) the time and labor required, (2) the novelty and difficulty of the questions, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee for similar work in the community, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation and CT Page 3602 ability of the attorneys, (10) the undesirability of the case, (11) the nature and length of the professional relationship with the client and (12) awards in similar cases.” (Citation omitted; internal quotation marks omitted.)
In this case, if the court deemed the amount of hours expended and the hourly rates reasonable, they would result in a lodestar calculation that approximates the amount requested, $160,572.50. Although the defendants did not formally challenge the attorneys fees submitted, they did observe in their brief that “the total amount of fees the plaintiffs seek to recover appears high.” Having thoroughly analyzed the fee affidavits, the court agrees with this observation.
In calculating the initial estimate of reasonable attorneys fees the court finds that the hourly rates stated are reasonable considering the experience, reputation and ability of the attorneys. However, the claimed number of hours expended by the three attorneys mentioned earlier, a total of 588.6 hours, is not reasonable taking into account what was involved in prosecuting the case.
The plaintiffs have not argued that any one or more of the Johnson
factors require an upward adjustment of the requested fee, and the defendants have not pointed to any factors which justify a downward adjustment. In any event, the twelve Johnson factors have been considered. The first factor, the time and labor required by the litigation, provides the most important and relevant guidance in adjusting the requested fee. This factor compliments and reinforces the “reasonable” hours component in the lodestar calculation, and allows the court to consider the number of hours submitted in light of what occurred during the litigation.
In considering the time and labor required in this case, the court has taken into account the fact that the original request for temporary injunction, as well as the motion for summary judgment on the declaratory judgment action, were decided on stipulated facts, after a one-day hearing on each proceeding. No depositions were taken by any party, and there was only one discovery dispute. Presumably, a portion of the research performed in preparation for the injunction hearing was utilized in the declaratory judgment portion of the case. Moreover, relevant arguments supporting the plaintiffs’ position were presented separately by the amicus party. Finally, for purposes of damages, the amount paid over to the general fund by the plaintiffs was established by written stipulations. In short, this litigation did not require the plaintiffs’ attorneys to expend 588 hours. Accordingly, for the foregoing reasons, the court concludes that the claimed number of hours expended is too CT Page 3603 large to be reasonable. In reaching its determination of reasonable attorneys fees, the court has also utilized its own experience and legal expertise. See Perez v. D L Tractor Trailer School, 117 Conn.App. 680, 705, 981 A.2d 497 (2009), cert. denied, 294 Conn. 923, 985 A.2d 1062
(2010) (noting that court used its own familiarity with complexity of issues involved, as well as experience and legal expertise, to determine attorneys fees); Smith v. Snyder, 267 Conn. 456, 472, 839 A.2d 589 (2004) (“courts have a general knowledge of what would be reasonable compensation for services which are fairly stated and described” [internal quotation marks omitted]).
Considering all of the circumstances, the court deems it appropriate to decrease the amount of requested attorney fees to reflect a reduced number of hours that are to be compensated. Rather than attempt to identify and justify each entry, the court, in its discretion, will utilize a percentage cut. “Courts have recognized that in many cases in which prevailing parties seek an award of attorneys fees, it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application . . . For that reason, many courts have endorsed percentage cuts as a practical means of trimming fat from a fee application.” (Citation omitted; internal quotation marks omitted.)Sabatini v. Corning-Painted Post Area School District, 190 F.Sup.2d 509, 522 (W.D.N.Y. 1999). See also Simms v. Chaisson, 277 Conn. 319, 323, 890 A.2d 548 (2006) (twenty percent reduction utilized by trial court) Commission on Human Rights Opportunities v. Brookstone Court, LLC, 107 Conn.App. 340, 341, 945 A.2d 548, cert. denied, 288 Conn. 907, 953 A.2d 651 (2008) (upholding trial court’s fifty percent reduction of claimed attorneys fees). Accordingly, the requested attorneys fees of $160,572.50 are reduced by twenty-five percent. Consequently, the original plaintiffs are allowed a reasonable attorneys fee of $120,429.37.
In addition to their compensation damages, the plaintiffs seek an award of interest. As the defendants have aptly stated in their brief: “`Just compensation’ as required by the federal and state constitutions for private property for public use means `the full, perfect and exact equivalent, in money, for the property taken.’ Monongahela Navigation Co. v. United States, 148 U.S. 312, 326, [13 S.Ct. 622, 37 L.Ed. 463] (1893); E. F. Construction Co. v. Ives, 156 Conn. 416, 420, [242 A.2d 768] (1968). Where as here, there is a delay between the time of taking and the actual date of payment, just compensation includes an CT Page 3604 additional sum which is `an amount sufficient to produce the full equivalent of that value paid contemporaneously with the taking.’ United States v. Klamath Moadoc Tribes, 304 U.S. 119, 123, [58 S. Ct. 799, 82 L.Ed. 1219] (1938); Jacobs v. United States, 290 U.S. 13, 17, [54 S.Ct. 26, 78 L.Ed. 142] (1933). Interest at a reasonable rate is suitable measure by which to ascertain the amount to be added. United States v. Creek Nation, 295 U.S. 103, 111, [55 S.Ct. 681, 79 L.Ed. 1331] (1935); Seaboard Air Line Railroad Co. v. United States, [261 U.S. 299, 306, 43 S.Ct. 354, 67 L.Ed. 664] (1923); E. F. Construction Co. v. Ives, supra; Salgreen Realty Co. v. Ives, 149 Conn. 208, 212, [177 A.2d 673
(1962), rev’d on other grounds, Leverty Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 471 A.2d 958 (1984)]; Clark v. Cox, 134 Conn. 226, 231-32, [56 A.2d 512] (1947).”
This case is similar to an eminent domain action, in that it involves the taking of the plaintiffs’ property by the state, for which they are entitled to compensation under the fifth amendment to the United States constitution. The right to interest in such cases was discussed by our Supreme Court in Leverty Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, supra. There, the court stated that “[t]he right to award interest in eminent domain actions does not depend upon statutory authority . . . The determination of just compensation under the fifth amendment is exclusively a judicial function . . . In condemnation cases, even in the absence of a provision for interest in the statute, the constitution requires just compensation, and its ascertainment is a judicial function.” (Citations omitted; internal quotation marks omitted.) Id., 380.
The parties are at great variance as to what constitutes a reasonable rate of interest. The original plaintiffs have maintained that the court should apply ten percent per annum, the maximum rate allowed by General Statutes § 37-3a. The intervening plaintiffs submit that twelve percent, the rate of return for a highly diversified active mutual fund, is appropriate. The defendants, on the other hand, argue that the default interest rate provided in General Statutes § 37-3c,  which is a rate equal to the weekly average one-year constant maturity yield of United States Treasury securities, reflects a reasonable rate of interest. For the years 2009 and 2010, the annual average rate for those securities has been approximately 0.4 percent.
After reviewing the initial submissions of the parties, the court indicated that it would also consider the reasonably prudent investor standard in determining what interest rate to apply. See Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 47-48, 428 A.2d 789 (1980) (noting that trial court used reasonable prudent investor standard to CT Page 3605 determine interest rate). The parties submitted additional stipulations and memoranda on this issue. Not surprisingly, under the parties’ arguments, the reasonably prudent investor standard has sufficient elasticity to embrace their respective positions.
Our appellate courts have not yet provided detailed guidance, such as endorsing the use of interest rates of particular security instruments, for determining a reasonably prudent investor rate. Nevertheless, since the plaintiffs’ claims are brought under 42 U.S.C §§ 1983 and 1988, it is appropriate to look to federal case law for guidance. See, e.g. Connecticut Assn. of Health Care Facilities, Inc. v. Worrell, 199 Conn. 609, 612-13, 508 A.2d 743 (1986) (relying on federal law for review of federal constitutional claims).
Washington Metro Area Transit Authority v. One Parcel of Land in Montgomery County, Maryland, 706 F.2d 1312, 1323 (4th Cir. 1983), cert. denied, 464 U.S. 893, 104 S.Ct. 238, 78 L.Ed.2d 229 (1983), is especially helpful here. In Washington Metro, the parties in a condemnation action presented the court with disparate interest rates. The appeals court for the fourth circuit concluded that the district court did not abuse its discretion when it declined to adopt any of the positions regarding interest. Id. “The government concedes that although the Declaration of Taking Act, 40 U.S.C. § 258a, provides for interest at a 6 [percent] per annum rate on any deficiency, that figure is merely a floor on the allowable interest . . . [The appellant] contends that the annual interest rate should not be less than the 13.5 [percent] that the court clerk achieved on the deposited funds by investing them in United States Treasury bills. The district court, however, based its annual interest rate on Moody’s Composite Index of Yields on Long Term Corporate Bonds.
“The choice of an appropriate rate of interest is a question of fact, to be determined by the district court . . . and the district court’s judgment will be upset only if it reaches a clearly erroneous result. In fixing an award of interest, the district court should attempt to determine what a reasonably prudent person investing funds so as to produce a reasonable return while maintaining safety of principal would have achieved . . . We think that use of the Moody’s index yielded an award that satisfactorily approximates that return. Moreover, we note that this method has been endorsed by the Court of Claims.” (Citations omitted; internal quotation marks omitted.) Id.
Both parties have referenced the Federal Reserve Statistical Release H. 15 — Selected Interest Rates (H. 15 Release), and they have included historical data for the performance of corporate bonds/Moody’s seasoned Aaa,  which is contained in the H.15 Release. This court follows the CT Page 360 Washington Metro court and finds that this category of investments is appropriate for determining a reasonable rate of interest in accordance with the reasonably prudent investor standard. According to the H.15 Release, the average annual rate for this instrument for the years 2009 and 2010 is 5.125 percent, which rounds to 5.1 percent.
In addition, it is suitable to use an interest rate based on corporate bonds in this case because such bonds are instruments by which businesses raise capital, and it is a form of borrowing money. The intervening plaintiffs point out that the property taken here was money; money that the plaintiffs could have used in their business, which they may have had to replace, presumably by borrowing.
The court does not disagree with the defendants’ position that the interest rates for United States Treasury securities, such as those described in § 37-3c, are often used to determine a reasonable interest rate in compensation cases. However, these securities are not the only investments considered prudent. As the Illinois Supreme Court observed i Illinois State Toll Highway Authority v. American National Bank Trust Company of Chicago, 162 Ill.2d 181, 199, 642 N.E.2d 1249 (1994), a court may, in its discretion, choose to rely on either corporate or treasury bonds to determine an appropriate interest rate. “Compensation for the loss of use of money in [a taking] is properly determined by the rate of interest. In determining the appropriate rate of interest to apply, the courts have relied most heavily on yields from high-grade corporate bonds and yields from government securities, such as [t]reasury [b]onds.”
As noted earlier, recent rates for one-year United States Treasury securities have been less than one-half of one percent, while rates for Aaa corporate bonds average over five percent. Since both securities are deemed appropriate, it reasonable to assume that a prudent investor would choose the higher rates offered by the corporate bonds
Accordingly, the court concludes that interest at the rate of 5.1 percent, prejudgment and postjudgment, on compensation damages is fair and reasonable, and is a necessary component of just compensation of the plaintiffs’ economic loss. Since the plaintiffs were required by Public Act 09-01 to pay over the money in the special accounts by April 30, 2009, interest will be awarded from May 1, 2009. The court calculates a total of 635 days have elapsed from May 1, 2009 through January 25, 2011.
Offer of Compromise Interest
CT Page 3607
The plaintiffs seek interest based upon an offer of compromise filed on May 27, 2010, pursuant to General Statutes § 52-192a. That statute provides that a plaintiff, who has recovered an amount at least equal to the sum specified in the offer of compromise, is entitled to eight percent annual interest on the judgment. In Struckman v. Burns, 205 Conn. 542, 559-60, 534 A.2d 888 (1987), our Supreme Court determined that sovereign immunity does not allow a recovery of § 52-192a interest against the state. Moreover, sovereign immunity implicates subject matter jurisdiction and cannot be waived. Id., 558. Accordingly, the plaintiffs’ claim that the attorney general waived the state’s sovereign immunity as to § 52-192a interest during argument at the injunction hearing is without merit.
For the foregoing reasons, the court awards the plaintiffs the following damages and interest through January 25, 2011:
CT Page 3609
The original plaintiffs are allowed costs in the amount of $2,678.26, in accordance with the bill of costs that they have submitted, dated July 26, 2010. The intervening plaintiffs are allowed costs of $934.02, in accordance with the “Intervenors-Plaintiffs’ Bill of Costs,” dated September 2, 2010, however $200.00 for a “difficult or extraordinary case,” is not allowed.
Judgment may enter in favor of the original plaintiffs and the intervening plaintiffs against the defendants in accordance with this memorandum.
CT Page 3612