Opinion
No. 251.
June 11, 1943.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Charles E. Singer and others against General Motors Corporation. From an order, 48 F. Supp. 504, awarding one Nemerov $10,000 as an allowance for legal services in a derivative action by shareholders against their corporation's directors, Nemerov appeals.
Order affirmed.
Charles H. Kelby and Joseph Nemerov, both of New York City, (Edward A. Rothenberg and Mortimer A. Shapiro, both of New York City, of counsel), for appellants.
Milton Pollack and Unger Pollack, all of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The appellant, Nemerov, filed two independent actions similar to that at bar, but they were enjoined almost at once, even before he could serve all the defendants named. He did, and could do, nothing thereafter to prosecute these actions, and his only possible contributions to the action at bar were: first, his idea of basing recovery, not upon the unlawfulness of the "bonus plan", but upon the improperly large base on which percentages were computed; and second, his joining certain defendants who contributed to the settlement. The attack upon the base turned out, he asserts, to be the source of the largest part of the recovery; apparently it is true that the action at bar was originally based only upon the notion that the plan was unlawful; and we shall assume arguendo that the attorneys in charge of it got their suggestion from Nemerov's complaint. However, there was nothing original in the notion, and it is unlikely that, as the action progressed, it should not have occurred to those in charge as a ground of recovery. Be that as it may, the district judge has awarded $10,000 for this service, and we cannot say that that was so little as to make its allowance an abuse of discretion.
The second supposititious service: making defendants in the two actions, three persons who were not named in the action at bar, and who eventually contributed to the settlement, deserves no further award. Nemerov never served them, as we have said, and their mere mention in the summons and complaint was not a substantial contribution.
Order affirmed.