Opinion
Civil Action No. 94-cv-02581-WDM-BNB.
September 1, 2005
ORDER
This matter is before me on the Application of defendant Fidelity Capital Appreciation Fund (Fidelity) for an Award of Attorneys' Fees and Costs. The Trustee of the Integra Unsecured Creditors' Trust (Trust) does not oppose the application. The application seeks recovery of the escrow funds composed of the $.10 of every $7.00 received by the Trust in accordance with the Settlement Agreement which provided that such $.10 would be available for payment of attorneys' fees and expenses incurred by Fidelity in acting as the defendant class representative. The $.10 amounts have been collected over the years and now total approximately $150,000.
Fidelity has incurred and paid attorneys' fees and costs totaling $653,059.40 ($634,439.75 to Hutchins, Wheeler Dittmar and $18,619.65 to Ireland, Stapleton, Pryor Pascoe, P.C.) in its capacity as class representative. Other than the accumulated funds in escrow, defendants may not be required to pay any attorneys' fees and expenses. Accordingly, the escrow amount would be the total amount chargeable to the class. As a consequence, the class will bear something less than 25% of the fees and costs actually billed and paid by Fidelity ($150,000 divided by $653,059.40 equals 22.9%).
Although Fidelity's applications do not fully comply with this court's local rule (D.C.COLO.LCivR 54.3) or my procedures (Pretrial and Trial Procedures § 7), the application is approved given the fact that only 22.9% of the total expenses paid are being charged to the class, which effectively assures the reasonableness of the charges. For example, Colorado counsel's hourly rates appear to have ranged from $220 to $250 per hour resulting in an effective rate of less than $60 per hour being charged to the class.
Accordingly, it is ordered as follows:
1. the escrow funds held by the Trustee for the Integra Unsecured Creditors' Trust shall be paid to Fidelity Capital Appreciation Fund forthwith; and
2. the Trustee shall file a report of such payment with this court on or before September 12, 2005.