in calculating attorney's fees. It should not be disparaged or disregarded in this instance. The award, far from conforming with statutory intent and thereby encouraging representation of employment discrimination plaintiffs, openly thwarts that intent. The court below, and this Circuit, if the affirmance of that decision stands, will be announcing that only attorneys willing to sustain substantial financial loss should even consider contingent-fee employment discrimination litigation. How can this Court or any court believe that a fee of this sort will attract members of the private bar to a field which even now remains complex, novel and unpopular. The award as it presently stands affirmed is calculated to make the area of employment discrimination litigation as unattractive to attorneys as possible. It is not competitive with any other area of endeavor for an attorney. Attorneys will be asked to undertake litigation which will no doubt alienate substantial numbers of other clients and which will often demand more creativity and skill than most litigation for a below-minimum scale fee. The affirmance of the decision below will be a disastrous retreat for a court long and justly noted for its strong and affirmative stance on equal rights. It will eliminate the possibility that members of the private bar will begin to share the burden of litigation too long borne by organizations such as those filing this brief. That burden is beyond their capabilities. Nor did Congress intend such groups to have this entire responsibility. It intended private litigation to secure employment rights and it provided for attorney's fees to encourage that litigation. As this Circuit has declared: Congress did not intend that vindication of statutorily guaranteed rights would depend on the rare likelihood of economic resources in the private party (or class members) or the availability of legal assistance from charity-individual, collective, or organized. An enactment aimed at legislatively enforcing human rights and the dignity of man through equality of treatment would hardly be served by compelling victims to seek out charitable help. Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). This Court must assure that the amount of fees awarded also serves to encourage such litigation, and it must begin with this case. CONCLUSION For the foregoing reasons, we respectfully urge that the Petition for Rehearing and for Rehearing En Banc be granted. Respectfully submitted. Jo ANN CHANDLER, Esq. MARIO OBLEDO, Esq. Attorneys for the Mexican-American Legal Defense and Educational Fund, Inc., Amicus Curiae. AFFIDAVIT OF OSCAR WILLIAMS STATE OF CALIFORNIA County of San Francisco, 88: I, OSCAR WILLIAMS, being first duly sworn, depose and say: 1. I am a member of the Bar of the State of California and am the Director of the Equal Employment Opportunity Commission (EEOC)—Title VII Project of the San Francisco Lawyers' Committee for Urban Affairs (S.F. Committee). The S.F. Committee is an affiliate of the Lawyers' Committee for Civil Rights Under Law (National Committee), a non-profit, taxexempt organization formed in 1963 at the request of President Kennedy. The National Committee has continued its activities at the request of every succeeding President. The National Committee's purpose is to mobilize the legal measures and the moral force of the nation's lawyers to defend and uphold the civil and constitutional rights of the nation's racial minorities and other disadvantaged citizens. The views expressed herein, however, are my own, growing out of my experience as Director of the EEOC Project in San Francisco. 2. The EEOC Project began in San Francisco in November, 1971. My primary duty, as Director of the Project, is to secure members of the private bar to represent persons who have filed charges of employment discrimination with the Equal Employment Opportunity Commission (Commission) and in which the Commission has been unable to effect a successful resolution. These cases all arise under Title VII of the Civil Rights Act of 1964. Nearly all of them are cases in which the Commission has found reasonable cause to believe that discrimination is taking place. 3. As with most undertakings of this type, numerous problems have been encountered in attempts to involve more members of the private bar in Title VII practice. Because many of the larger law firms represent employers and unions against whom charges of job discrimination have been filed, the vast majority of attorneys who accept cases through the Project are either members of smaller firms or are sole practitioners. Because of limited resources, many attorneys in this category have been reluctant to take Title VII cases in which attorney's fees, if forthcoming at all, may be months or years in the future. Basically, it has been my experience that reasons given for reluctance or refusal to accept Title VII cases by members of the private bar in the San Francisco area fall into three (3) main categories: (a) Lack of experience in Title VII litigation; (b) Inability of the client and/or the attorney to finance anticipated costs of discovery; and (c) The contingency of the fee and concern as to whether adequate attorney's fees will be awarded in cases where plaintiffs prevail. 4. In efforts to counter these objections, we have: (a) Conducted training seminars and offered on-going assistance to attorneys accepting cases through the Project; (b) Sought to obtain funds to defray costs of discovery in selected cases; and (c) Emphasized to attorneys that the Court will effectuate what I believe to be the legislative intent by awarding attorney's fees which will adequately compensate them for their services in Title VII cases. 5. Under these circumstances, response of the private bar has been creditable, and attorneys, in some instances, have accepted Title VII cases at some personal financial sacrifice. Response, however, has been less than enthusiastic. 6. Recently, I was contracted by plaintiffs' attorneys during settlement negotiations in two (2) unreported Title VII cases filed in Federal District Court for the Northern District of California: Whittley v. Fairchild Semiconductor and Fairchild Camera and Instrument Corp., C-71-1927 RFP, and Atwood v. Bekins Moving and Storage Co, C-71-2115 RFP. In both cases, I was personally aware that the settlement agreement provided for attorney's fees to plaintiffs' attorneys based upon an hourly rate of one hundred dollars ($100.00) and I was unaware that the total fee in Whittley was fifty thousand dollars ($50,000). (The minimum fee schedule in San Francisco is fifty dollars ($50.00) hourly). Subsequent to the circulation of information concerning the award of one hundred dollars ($100.00) hourly attorneys' fees in these two cases, I can only say that there has been a marked increase by private counsel in seeking to obtain Title VII cases through the Project. 7. For the first time since the inception of the Project, I now regularly receive inquiries from attorneys requesting Title VII cases through the Project. And, again for the first time, we now have more attorneys who are prepared to accept cases than cases available. It has been stated to me on several occasions by attorneys that this increased interest in Title VII cases is the direct result of knowing about the attorney's fees in the settlements in Whittley and Atwood. This reaction has demonstrated conclusively to me that adequate attorney's fees in Title VII cases are crucial toward involving more members of the private bar in such litigation. If the goals of equal opportunity in employment are ever to be realized, this increasing involvement of private attorneys is absolutely necessary. OSCAR WILLIAMS, Affiant. Subscribed and sworn to before me this 14th day of September, 1972. HELEN CHODACK, Notary Public. DECLARATION OF MAILING I, the undersigned, say: I am, and was at all time herein mentioned, a citizen of the United States, County of San Francisco, State of California, over the age of 18 years and not a party to the within action or proceeding; that my business address is 433 Turk Street, San Francisco, California 94102; that on the date set forth below, I enclosed two true copies of the attached Brief Amicus Curiae in a separate envelope for each of the persons named below, addressed as set forth immediately below the respective names, as follows: David J. Heinsma, Esq., 2900 First National Bank Building, Vincent L. Sgrosso, Esq., 1245 Hurt Building, Atlanta, Ga. 30303. Sylvia Roberts, Esq., Post Office Box 3081, Baton Rouge, La. 70821. Each said envelope was sealed and with postage thereon fully prepaid as first-class mail; I deposited the same on the date set forth below, in a mailing facility regularly maintained by the United States Post Office Department for the mailing of letters. I declare under penalty of perjury that the foregoing is true and correct. Executed on September 15, 1972, at San Francisco, California. TILLIE A. LEE, Declarant. U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 72-1075 MRS. LORENA W. WEEKS, PLAINTIFF, V. SOUTHERN BELL TELEPHONE & TELEGRAPH Co., DEFENDANT-APPELLEE, BRIEF IN SUPPORT OF PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC ON BEHALF OF THE WOMEN'S EQUITY ACTION LEAGUE, AMICUS CURIAE What is basically at issue in this appeal and petition for rehearing is the policy question of whether or not this Court wants to go on record as saying in effect by the amount of attorney's fee awarded that sex discrimination cases under Title VII are less important than race discrimination cases under the same law. Decision of this policy question so as to downgrade the importance of eliminating sex discrimination in employment would be contrary to the position taken by other Federal Courts, such as the Third Circuit Court of Appeals in Rosen v. Public Service Electric & Gas Co., 409 F.2d 775 (3d Cir. 1969), where the Court stated: "We do not make the distinction . . . that discrimination on account of sex is any less reprehensible or any less protected than discrimination because of race." Se also Local 186, International Pulp, Sulfite & Paper Mill Workers v. Minnesota Mining & Mfg. Co., 304 F., Supp. 1284, 1287, 1289 (N.D. Ind. 1969). We submit that affirmance of the District Court's award in this case is giving sex descrimination cases a "back seat" in the Fifth Circuit in comparison with recent race discrimination cases such as Clark v. American Marine Corp., 320 F. Supp. 709 (S.D. La 1970), aff'd. per curiam 437 F.2d 959 (5th Cir. 1971), where the Court awarded a fee of $20,000, and Peters v. Missouri Pacific Ry. Co., 3 FEP Cases 793 (E.D. Tex. 1971), where the Court-awarded attorney's fee was $44,000. Judge Wisdom in dissenting recognized that such a result on a policysetting question is unjustified and "does not reflect . . the importance of the case in the cause of non-discrimination against working women." If the majority two Judges on the panel deciding this Appeal considered the time factor of doubtful value in determining attorney's fees, greater emphasis should have been given, as Judge Wisdom asserted, to the fact that this was a case of first impression; to the novelty and difficulty of the legal issues involved in the case; and to the significance of the result. For these reasons, we support Appellant Sylvia Roberts' Petition for Rehearing and Petition for Rehearing En Banc. Respectfully submitted, RUTH M. FERRELL, Attorney for Women's Equity Senator TUNNEY. Our next witness is Mr. Phillip J. Mause. Mr. Mause is an attorney and author. STATEMENT OF PHILLIP J. MAUSE, ATTORNEY AND AUTHOR, WASHINGTON, D.C. Senator TUNNEY. Mr. Mause, would you be able to summarize your written statement, which will be included in the record in full. The reason I suggest that, if you read the whole thing I am not going to be able to ask you questions, and I would like to be able to ask questions. So if you could summarize in maybe 10 minutes, your opening remarks, then I could get into some questions with you. Mr. MAUSE. Sure. Senator TUNNEY. I might say your statement has been read already. Mr. MAUSE. My statement focuses on the question of the effects of the adoption of an across-the-board indemnity system. That is, an across-the-board fee shifting system. That is, a system in which in every case the prevailing party would recover his attorney's fees from the losing party. Although I conclude-and I will try to explain very briefly whyan across-the-board indemnity system would be undesirable at the present time in the United States, I am strongly in favor of some form of fee shifting in the area of public interest litigation.. This presents very difficult questions concerning the definition of what constitutes public interest litigation and the procedures to be adopted for determination of the appropriate fee. I think these problems can be overcome and I think it is an area in which action is very important. In every situation in which Congress creates a right to sue, and in many in which a right to sue has been created, careful consideration should be given to the possibility of awards of attorneys' fees and in addition, some kind of discretion should be vested in the Federal judiciary to award attorneys' fees in other situations, on the basis of criteria created by Congress, in which the right to attorneys' fees is not created explicitly by statute. Shifting to the main area of my testimony, that is, the effects of an across-the-board indemnity or fee shifting system, I had done some work while I was at the Kennedy School of Government on a grant from the Russell Sage Foundation, and I have written an article in the area. I find it an extremely complicated area, and an area in which one of the questions which is frequently raised by authors really has no answer, and that is, whether an across-the-board fee shifting system will decrease the total amount of litigation. Fee shifting has often been suggested as a remedy for court congestion, on the assumption it would decrease litigation, but I feel that it is unclear whether this would occur. As the discussion on pages 3 and 4 of my testimony indicates, litigation usually results from mutual optimism, that is, the plaintiff thinks he has a better chance of winning than the defendant estimates the plaintiff has a chance of winning. When the fee is given to the prevailing party, each party's estimate of his monetary return from the litigation improves. If parties were completely risk neutral, indemnity and fee shifting would cause parties to litigate more often. However, people do not function that way and a phenomenon called "risk aversion" characterize most people's feelings about money. In the range in which most litigation occurs, people of modest means are quite "risk averse". For example, many people would prefer to have a sure $1,000 to a 50 percent chance of $2,000, or they would not pay out $1,000 to have a 50 percent chance of receiving $2,000. Indemnity spreads out the impact of litigation, that is, it makes the defeat more costly and makes the victory more desirable and therefore because of "risk aversion" there may be some discouragement of litigation. |