On Motion Under Section 4 of the Clayton Act
COFFIN, Circuit Judge:
Plaintiff Farmington Dowel seeks by this motion some $17,000 as its costs of appeal pursuant to section 4 of the Clayton Act, $11,269 of which is claimed to be reasonable attorney's fees for 337 hours worked at $33.44 per hour.1 We have already disposed of the "cost of suit" contention by our prior order that "no costs" are to be awarded for these cross appeals. However, we did not intend by that order to preclude a motion for plaintiff's reasonable attorney's fee under section 4 arising from these cross appeals.
It is well established that an additional section 4 attorney's fee award can be made to the plaintiff who sustains his district court judgment on appeal.2 However, none of those cases dealt with the complication which confronts us here. In our case, the plaintiff -- in addition to successfully resisting defendant's appeal -- presented three claims by way of a cross appeal, only one of which was successful. As a result, defendant urges that, at most, plaintiff can recover only for work done on claims which proved successful (in this defendant properly includes plaintiff's successful efforts to protect its district court judgment from defendant's attack on appeal), and, more properly in defendant's view, that plaintiff should be awarded no attorney's fee for this appeal.
We are reluctant to declare a rule for the section 4 "reasonable attorney's fee" award on appeal which would require a fragmentation of every appeal into the parts won and lost by plaintiff. Prudent counsel may justifiably offer a number of arguments on appeal, since what might appear dispositive to a court might well differ from counsel's judgment. It therefore would be unfair and contrary to the spirit of the statute to limit the award directly to the time and effort expended on the arguments where plaintiff has been successful. On the other hand, in assessing the value of services for the purpose of making our section 4 award, we think we are entitled to take into account the fact that a substantial part of plaintiff's brief on appeal -- and even more of its appendix -- was devoted not to defending the judgment of the district court but to making an unsuccessful effort to secure reversal, a new trial, and thus the opportunity to obtain a larger verdict. See Union Leader Corp. v. Newspapers of New England, Inc., 218 F. Supp. 490, 492 (D. Mass. 1963), rev'd on other grounds, Haverhill Gazette Co. v. Union Leader Corp., 333 F.2d 798 (1st Cir. 1964); Osborn v. Sinclair Refining Co., 207 F. Supp. 856, 864 (D. Md. 1962), rev'd on other grounds, 324 F.2d 566 (4th Cir. 1963). While we can envisage a case where such an effort is so justified by the record and rulings below that it, even though finally unsuccessful, should be given full weight in the award of fees, this is not that case. Were no discretion to be allowed the court, a plaintiff could vastly increase the fee burden on a defendant by pursuing a plethora of insubstantial claims.
In the light of this consideration, together with the only data we have been able to gather concerning other section 4 awards on appeal, see n. 2, we are satisfied that $4000 is a "reasonable attorney's fee" for plaintiff on appeal. That part of the claim based on plaintiff's post-trial activities in the district court is more appropriately addressed to that court.
1. The claim for 337 hours worked -- 64 on post-trial motions, 273 on appeal -- is not contested. The hourly rate was derived by dividing the total hours worked before and during the trial into the $85,000 found by the district court to be a "reasonable attorney's fee" for those efforts, which finding was affirmed on appeal.
2. American Can Co. v. Ladoga Canning Co., 44 F.2d 763, 772 (7th Cir. 1930) ($3500 awarded), cert. denied, 282 U.S. 889, 51 S. Ct. 183, 75 L. Ed. 792 (1931); American Can Co. v. Bruce's Juices, 190 F.2d 73, 74 (5th Cir. 1951) ($5000), petition for cert. dismissed, 342 U.S. 875, 72 S. Ct. 165, 96 L. Ed. 657 (1951); American Crystal Sugar Co. v. Mandeville Island Farms, 195 F.2d 622, 626 (9th Cir. 1952) ($4000), cert. denied, 343 U.S. 957, 96 L. Ed. 1357, 72 S. Ct. 1052 (1952); North Texas Producers Ass'n v. Young, 308 F.2d 235, 246 (5th Cir. 1962) ($5000), cert. denied, 372 U.S. 929, 9 L. Ed. 2d 733, 83 S. Ct. 874 (1963); Twentieth Century Fox Film Corp. v. Goldwyn, 328 F.2d 190, 222 (9th Cir. 1964) ($5000), cert. denied, 379 U.S. 880, 13 L. Ed. 2d 87, 85 S. Ct. 143 (1964); North Texas Producers Ass'n v. Metzger Dairies, Inc., 348 F.2d 189, 197 (5th Cir. 1965) ($10,000), cert. denied, 382 U.S. 977, 15 L. Ed. 2d 468, 86 S. Ct. 545 (1966); Washington State Bowling Proprietors Ass'n v. Pacific Lanes, Inc., 356 F.2d 371, 381 (9th Cir. 1966) ($0), cert. denied, 384 U.S. 963, 16 L. Ed. 2d 674, 86 S. Ct. 1590 (1966); Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 692 (8th Cir. 1966) ($4000); Armco Steel Corp. v. State of North Dakota, 376 F.2d 206, 212 (8th Cir. 1967) ($5000).