Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00149-WIG Document 140-3 Filed 03/29/2005 Page 1 of 3
EXHIBIT 2

Case 3:03-cv-00149-WIG Document 140-3 Filed 03/29/2005 Page 2 of 3
1998 U.S. Dist. LEXIS 8641
LUDOVICO G. ANASTACEO, Piaintift, vs INITIAL CONTRACT SERVTCES, INC , Deiendarit.
i 97 CIV 6695 (CMM)
UNITED STATES DISTRICT COURT POR THE SOUTHERN DISTRICT OF NEW YORK
1998 U S. Dist LEXIS 8641
tune ii, t998, Decided
June 12, 1998, Filed
DISPOSITION: IH] Judgment entered imiiudcs past Civil Procedure > Costs & Attorney Fees > Artorirey
toss of wages $ E5,559.'/1, future toss of wages {S FMS
15,868.00, interest at 8 6.25.00, expenses at S 5,i E500
and attorneys' fees at fl} 28,990.00 for a total ot` S [HN1]In the Second Circuit, enhancements of the
66,157.00 iodestar arnount of attorneys fees are not perniissibte
under l`ee—shifting statutes. An enhancement is not
CASE SUMMARY justified if based upon a contingency risk.
PROCEDURAL POSTURE: The court considered COUNSEU For LUDOVICO G ANASTAFIO
the appropriate bases for the prevailing plaintiffs mmm, David JaI_é)S§aWiCZ hmsiawicz & hL_0S’
award for loss of back pay, future loss of wages, p " _ ’ ` i ’
, , , _ Esqs., New York, NY.
interest, expenses, and attorneys fees under §
U.S.C.S. 8 26i`i(a)(3)
y _ . _ , , , For INITIAL CONTMCT SERVICES, INC ,
OVERvIiEW‘ .Th° °°“" Tqicmd "““““ES “’g“""""“ defendant: aetren is Atkins, Atkins at onnen r.r.t>,
that the stipuiatron of the nine percent rate was adopted ,
. . . . . New York,NY.
in reiauon to the interest on plaintiffs loss of back pay
rather than in connection with determining the present JUDGES: Charles M. Metzner, U SD J.
valuerof the award of future toss of wages. The court OPHEONBY: Chimes M Mctzncr
cited its custom in cases in winch it was possible that a
recovery would be granted for future loss of earnings OPINION: OPINION
to seek agreement of counsel as to the interest rate to
be used in determining the present vatue of the award _
. . . Metzner, I.
The court also cited transcripts of the pertinent
discussion that indicating that the interest rate agreed Counsel in this Eitigation has submitted an application
to was to be used to determine the present vaiue of the for an award of attoruey's fees pursuant to 29 USC.
doliar on the award of future loss The court rejected 2617 (a)(3).
counsei’s request to enhance the lodestar atto:ney‘s fee The 3 mation is in ammr form with 3 dcclmmiou b
figure by the amount of {Em mmingcmy ce coansgijin support of the application. Counsel state;
errsremrrt barter me his ·=“¤=t» were nn nt sri nine nn ne rate nr en ne ne tn
that in the Second Circuit, enhancements of the mation mpmc interest Cm plaintifgs loss of bggk pay
i°°"*‘“*‘" “‘“°?‘“T °i ““°‘“"’Y 5 f‘“’S."’°‘° **8* 8“‘“““"b’“ ner in connection nan determining the present value of
under t`ee—sh1ftmg statutes, and in particular that an the award fm fumm mss Ofwgges
enhancement was not justified if based upon a '
contingency risk. The court accordingly tixed the lt has been my custom in ati cases in which it is
amounts of the award. possible that a recovery would be granted for hrture
p _ . _. toss of earnings to seek agreement of counsel as to the
°U‘“*°ME· The we treme the rrprrriee nnnn te ne nee in eesnnng ne present value
award amounts for past loss of wages, future ioss of { h d TE _ { f _} d. .
. _ d ammcys fw; and o te awar . rat was tre purpose o tie rseussron
Wagcsé .m§m€St’t axpcngiml an ’ [*2] with counset in which counsel contends that we
mmm iu gmm mmm mg y` were talking about the interest rate to he apptied to
CORE TERMS: present value, wages, enhancement, hack pay. I have obtained a transcript of the reporters
interest rate, doliar notes.
LexisNexis('i`iVI) Headnotes The pertinent part starts with a comrnent by Mr Jaros,
the moving counsel on this appiication, to the effect
Page t

Case 3:03-cv-00149-WIG Document 140-3 Filed 03/29/2005 Page 3 of 3
1998 US. Dist. LEXIS 8641
that t would take judicial notice ot the table in the PIT
showing, the life and work expectancy of his client
The court replied that "t also have to ask them in
making an award for future loss the interest figure they
used." Then came a discussion as to interest rates and
the discussion concluded with the court saying, "on the
question of damages, we will have the iixed iigure, if
they reach that point, and we witt apply the 9% and
yeantigure and get the present value of the dollar."
Consequently, the recalculation of the present value of
the future wages using the 9% figure is fixed at iii
15,068.00,
Turning to the request for attorney’s fees, counsel
requests that the lodestar figure of 8 28,990.00 be
enhanced by the amount of the contingency fee
arrangement between counsel and his client Counset
submitted a photocopy ofthe opinion in Gi·eemvriv v.
T/ie Buffalo Hi//01:. 95] F. Supp. tl}39 (W D NY.) on
the question 1*3} of the present value ofthe dollar. it
is a 32—page opinion, but ifcounset had read the whole
opinion he would have found on page 1068 the
following:
"it is welt settled [I·IN1}in the Second Circuit that
enhancements ofthe tociestar amount of attorneys' fees
are not perrnissibte under f“ee—shifting statutes,
,/t_;[g1¤ii·n/I v. Pro/ter rind Prrrs/ev Petro/ezrirr Co. 864 F.
Supp. 1422, 1435 ;S.D.N.Y. 1994).**
A reading of the cases cited in the Maywatt opinion
will show specifically that an enhancernent is not
justified if based upon a contingency risk.
Finatly, at this time the prevailing rate of interest in
this court is set at .05434 by the cterlc. Consequently,
this figure is recalculated to be 8 625.00 for the year.
To sum up, the judgment to be entered includes past
toss of wages 8 15,559.71, t`utur‘e loss of wages $
15,868.00, interest at $ 625 00, expenses at 8 5,115.00
and attorneys' fees at S 28,990 00 for a total of S
66,157.00.
So ordered
Charles M, Metzner
US D J
Dated: June ti, t998
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