Preview
From the beginning in 2017, Plaintiff has pursued and defended this action appropriately
and has advanced substantial funds to prosecute the case both in the underlying jury trialand at
the initial 93A trial. This Court awarded the Plaintiff its fees, costs and expert costs for those
two phases of the trial. Now, the Court has awarded the Plaintiff its fees and costs for the re-
opened 93A trial. See Findings of Fact and Rulings of Law on the Reopened 93A Trial, pp. 53-
54.. The purpose of this Motion is to demonstrate the reasonableness of the Plaintiff's requests
for $302,224.31 in fees and $4,604.45 in costs, as well as the reasons why this Court should
adopt a fee enhancer to increase the fee award to $453,336.46.
II. Facts.
1. On December 27, 2017, Plaintiff commenced this action in Hampden County by
filing a Complaint that included claims for breach of contract, breach of the implied covenant of
good faith and fair dealing, declaratory relief, and violations of G.L. c. 93A.
2. After a jury trial on September 18 — 27, 2018, the jury was asked to decide several
special questions. See Special Verdict Form.
3. On September 27, 2018, the jury found for Plaintiff on all counts. Id.
4. Based on the jury's findings, the Plaintiff was entitled to its election of either
$3,762,500 in delay damages and specific enforcement of the lease, or $5,616,500 in "benefit of
the bargain" or "walk-away" damages. Id.
5. On November 9, 2018, the Court allowed the Plaintiff's first Motion for
Attorneys' Fees and Costs, which was premised on the language within the Lease at ¶ 28. See
Memorandum and Order on Plaintiff/Defendant-in-Counterclaim's Motion for Attorneys' Fees
and Costs, dated November 9, 2018. The Court awarded contract-based fees in the amount of
$412,673.50 in and $12,239.12 in costs. Id. In its November 9, 2019 decision, the Court did not
2
interpret the Lease's language to include the Plaintiff's expert expenses, approximately
$103,494.90, as costs that were then recoverable under the contract. Id.
The Initial 93A Trial
6. Plaintiff's remaining counts related to equitable relief and claims under G.L. c.
93A. See Complaint and Jury Demand. The Plaintiff's 93A counts were addressed at a bench
trial which occurred on October 26, 2018 and December 10, 2018. All facts and evidence
presented in the jury trial were incorporated into the 93A bench trial to preserve judicial
economy and reduce litigation costs.
7. On January 28, 2019, after the parties each called witnesses, submitted exhibits,
and filed proposed findings of fact and rulings of law, the Court found for the Plaintiff on its
claims for equitable relief and violations of M.G.L. c. 93A. See Findings of Fact and Rulings of
Law, dated January 28, 2019. The Court found that the Defendants "willfully and knowingly
committed [eight] unfair methods of competition and unfair and deceptive acts and practices in
violation of G.L. c. 93A, §§ 2, 11." Id., p. 29. The Defendants' violations of G.L. c. 93A
included:
a. The Defendants' purported reasons for terminating the Lease were a
wrongful pretext for Al Dos Anjos's "bitterness" over Balise's purchase of
the Cash Land. Id., pp. 29-30.
b. The Defendants wrongfully leveraged their approval power under ¶ 2(a) of
the Lease. Id., p. 30.
c. The Defendants attempted to obtain coerced advantages and
improvements to the original contract by demanding a Honda exclusivity
provision. Id., pp. 30 — 31.
d. Dos Anjos, the Defendants' principal, intended to extract additional
concessions from Plaintiff that were not bargained for in the Lease,
amounting to a "knowing use of a pretext to coerce lease amendments and
to obtain the Cash Land," which established willfulness as a matter of law.
Id.,p. 31.
3
e. The Defendants leveraged their approval authority under ¶ 2(a) of the
Lease to obtain the Cash Land for the price of $1.00. Id.
f. The Defendants "willfully and knowingly strung the along Majestic to see
what unwarranted benefits the Defendants could extract from Plaintiff."
Id., pp. 31-32.
g. The Defendants refused to cure its default upon Plaintiffs addressing and
satisfying of all pretextual reasons for the Defendants' termination. Id., p.
32.
h. The Defendants "willfully and knowingly withheld the $150,000 deposit."
Id.
8. With respect to actual damages, the Court awarded the Plaintiff $4,462,500 in
delay damages (with the potential for these damages to continue to accrue at $175,000 per
month) in the event that Plaintiff elects to enforce the Lease. Based on the Defendants' repeated
violations of G.L. c. 93A, the Court doubled the above amount resulting in delay damages of
$8,925,000. Id., p. 34.
9. The Court also ordered the Defendants to pay additional attorneys' fees and costs:
Based on Defendants' violations of G.L, c. 93A, Defendants are ordered to pay
Plaintiff's attorneys' fees and costs, including the amounts I have ordered
pursuant to the jury's verdict in favor of the Plaintiff on Count 3 of its Complaint ,
together with any additional fees and costs relating to Count 5.
Id.
The Re-Opened 93A Trial
10. In its first c. 93A Findings of Fact and Rulings of Law, dated January 28, 2019,
the Court cautioned the Defendants on the possibility of additional damages with the following
language:
Should Majestic elect specific performance, ...Majestic's delay damages of
$175,000 per month will continue until such time as Defendants have complied
with my orders relating to specific performanc e below.
Id, p. 23.
4
11. On February 12, 2019, the Plaintiff timely elected its remedy of specific
performance and delay damages, which entitled the Plaintiff to the full benefit of the Lease as
well as unfettered access to the Leased Property and the Defendants' cooperation.
Unfortunately, from February 13, 2019 through November 16, 2019, the Defendants
misrepresented the true ownership of the land making up the Leased Premises, thereby
wrongfully frustrating and delaying Plaintiff's municipal permitting process and the opening of
Plaintiff's business. The Defendants' dishonesty, misrepresentations, unfair and deceptive
practices and misconduct are well documented in the Court's "Findings of Fact and Rulings of
Law on the Reopened 93A Trial," dated April 30, 2020, which is incorporated as if fully stated
herein. See Findings of Fact and Rulings of Law on the Reopened 93A Trial, pp. 15-26.
12. In its "Findings of Fact and Rulings of Law on the Reopened 93A Trial," the
Court listed over twenty (20) misrepresentations made by the Defendants to the Plaintiff and the
Court as to the true ownership of the Leased Premises. Id., pp. 12-15. In finding the Defendants
in violation of M.G.L. c. 93A once again, the Court found that "the Defendants knowingly
ignored their contractual obligations," "fail[ed to] cooperate with Majestic," failed to follow the
Court's Order and the jury verdict instructing the Defendants that the Lease was in full force in
effect, failed to follow the Lease, failed to give Majestic "unfettered access to the Leased
Premises," and failed to "cooperate and approve any necessary paperwork for any permits or
other items required for Majestic's full use and enjoyment of the Leased Premises, planned
construction, and operation of its business." Id., p. 26, ¶ 95.
13. The Court also found that "the Defendants were dishonest about the issue of
ownership from January 29, 2018 until August 15, 2019. Thereafter, the Defendants failed to
timely respond to reasonable requests for permit signatures until November 16, 2019, in order to
5
improve its position." Id., pp. 26-27, ¶ 96. The Court found that "the Defendants caused
Majestic 9 months and 3 days of unnecessary and intentional delay from February 13, 2019
through November 16, 2019." Id.,p. 27,1197.
14. The Court found "by a preponderance of the evidence that the Defendants caused
Majestic to sustain economic delay damages of $175,000 per month" for "an additional total of
$1,592,260." Id., p. 27, Ill 100-101. In its thorough and detailed 54-page analysis of the facts
and law, the Court held that the Defendants' conduct "more than meets the standard of an `unfair
or deceptive act or practice' — even taking into account that both parties to the transaction were
sophisticated business people." Id., p. 47 (citing Anthony's Pier Four, Inc., 411 Mass. at 475).
15. The Court cited numerous instances in which the Defendants "willfully and
knowingly committed the following unfair methods of competition and unfair and deceptive acts
and practices in violation of G.L. c. 93A." Id., pp. 48-50. The Court found that the "actions by
Dos Anjos and his agents on behalf of the Defendants constituted the `pattern of a breach of
contract as a lever to obtain advantage' for the Defendants when the Defendants should have
simply fixed the problem in line with fee simple ownership as promised by the Lease at
16(a)(ii) and 34(d)." Id., p. 49.
16. The Court &so found that "[t]he evidence supports a finding that the Defendants
willfully and knowingly strung along Majestic to see what unwarranted benefits the Defendants
could extract from Plaintiff such as contract improvements [, which] violates G.L. c. 93A as a
matter of law." Id. (citing Full Spectrum Software, Inc. v. Forte Automation, Sys., 858 F.3d 666,
674 (1St Cir. 2017) ("one business's stringing along of another to the other's detriment" can
violate G.L. c. 93A, § 11); Greenstein v. Flatley, 19 Mass. App. Ct. 351, 358 (1985); Mass. Eye
and Ear Infirmary v. QLT Phototherapeutics, Inc., 552 f.3d 47, 69-70 (1st Cir. 2009)).
6
17. Reflecting on the Defendants' intentional misconduct from January through
November of 2019, the Court held that the "overwhelming mass of the Defendants'
misrepresentations far outweighs their argument that Majestic's confusion as to the true
ownership served to either mitigate itsdamages or release the Defendants of liability" and the
"Defendants' contemptuous rejection of Majestic's legitimate repeated requests for signatures
necessary for permitting, standing alone, supports Majestic's claim for violations of G.L. c.
93A." Id., p. 50. Based on the Court's finding that the Defendants engaged in "commercial
extortion," the Court awarded Plaintiff "double damages." Id., p. 53 (citing Pepsi-Cola
Metropolitan Bottling Co. v. Checkers, Inc., 754 F.2d at 17-19 (commercial extortion giving rise
to c. 93A liability, and treble damages, where defendant withheld payment due under contract
not because of dispute over liability or inability to pay but, rather, as "'wedge' against [plaintiff]
`to enhance [defendant's] bargaining power for more product.'")). In doing so, the Court
doubled the re-opened 93A award from $1,592,250 to $3,184,500. Id,, p. 53.
18. The Court also reiterated that G.L. c. 93A "provides for recovery of ... attorney's
fees" and ruled that:
Based upon Defendants' willful and knowing violations of G.L. c. 93A,
Defendants are ordered to pay Plaintiff's attorneys' fees and costs, including
amounts I have already ordered pursuant to the jury's verdict in favor of Plaintiff
on Count 3 of its Complaint, together with the amounts I have already ordered
pursuant to my Order of January 28, 2019 as to costs associated with Count 5.
Id., pp. 50, 53-54.
III. Legal Standard.
First, Plaintiff is entitled to an award of attorneys' fees and costs based upon the contract,
in this case a commercial lease. See Jury Ex. 2, ¶ 28. The contract claims against the
Defendants were related to a Lease executed by the parties on October 28, 2016. Id. As the
7
Court found, and as is detailed above, the Defendants repeatedly breached and ignored their
known contractual obligations from January 29, 2019 through November 16, 2019.2 Id., pp. 26-
27,¶96.
Second, G.L. c. 93A, § 11 provides a statutory basis for attorneys' fees and costs based
upon the Defendants' rampant willful and knowing 93A violations:
If the court finds in any action commenced hereunder, that there has been a
violation of [G.:. c. 93A, § 2], the petitioner shall, in addition to other relief
provided for by this section and irrespectiv e of the amount in controvers y, be
awarded reasonable attorneys' fees and costs incurred in said action.
2 The Lease in this case entitles the Plaintiff to attorneys' fees and costs:
28. Events of Landlord's Default; Tenant's Remedies. Any of the following occurrences,
conditions or acts by Landlord shall constitutean "Event of Default"; (a) Landlord's failure to
make any payments of money due Tenant hereunder within ten (10) days after the receipt of
written notice from Tenant that same isoverdue (in which event the delinquent amount shall
accrue interestat the Default Rate); or (b) Landlord's failureto perform any nonmonetary
obligation of Landlord hereunder within thirty(30) days afterreceipt of written notice from
Tenant to Landlord specifying such default and demanding thatthe same be cured; provided that,
if such default cannot with due diligence be wholly cured within such thirty(30) day period,
Landlord shall have such longer period as may be reasonably necessary to cure the default, so long
as Landlord proceeds promptly to commence the cure of same within such thirty (30) day period
and diligently prosecutes the cure to completion.
Upon the occurrence of an Event of Default by Landlord, at Tenant's option, in addition to any
and all other remedies which it may have at law and/or in equity (to the extent not inconsistent
with the specific provisions of this Lease), and without its actions being deemed an election of
remedies or a cure of Landlord's default,Tenant may do all or any of the following: (i)pay or
perform such obligations and offset Tenant's reasonable and actual cost of performance, including
any and all transaction costs and attorneys' fees, plus interest at the Default Rate, against the Base
Rent due Landlord hereunder; or (ii) suefor damages, including costs and
interest, transaction
attorneys' fees as specified in subsection (i) above. In no event shallTenant have any right to
terminate this Lease as a result of an Event of Default by Landlord. Upon a breach of the
warranties and representations contained in Section 16, Tenant shallbe entitledto the remedies
provided therein, in addition to those remedies provided herein and at law or in equity. All
amounts, including transaction
interest, costs and attorneys'fees, arisingout of uncured defaults
of Landlord shall, upon judgment being entered in favor of Tenant therefor, constitute liens against
Landlord's interest in the Premises, which may be enforced by non-judicial means available under
State law, or any other applicable proceedings. The various rights and remedies reserved to
Tenant herein are cumulative, and Tenant may pursue any and all rightsand remedies setforth
herein (to the extent not inconsistent with the specific provisions of this Lease), whether at the
same time or otherwise; provided that in no event shall Landlord be obligated to compensate
Tenant for any speculative or consequential damages caused by Landlord's failureto perform its
obligations under this Lease.
See Jury Ex. 2, ¶ 28 (emphasis supplied).
8
"While the amount of a reasonable attorney's fee is largely discretionary, a judge `should
consider the nature of the case and the issues presented, the time and labor required, the amount
of damages involved, the result obtained, the experience, reputation and ability of the attorney,
the usual price charged for similar services by other attorneys in the same area, and the amount
of awards in similar cases.' No one factor is determinative, and a factor-by-factor analysis,
although helpful, is not required.' Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co.,
445 Mass. 411, 429-30 (2205) (citations omitted); see also Berman v. Linnane, 434 Mass. 301,
302-303 (2001); Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993) (both quoting
Linthicum v. Archambault, 379 Mass. 381, 388-389 (1973)).
IV. Argument.
A. Plaintiff's attorneys' fees of $302,224.31 are reasonable and should be
awarded under the lodestar method. A fee enhancer of 1.5 should also be
applied to increase the fee award to $453,336.46.
The calculation of reasonable fees under the lodestar method involves "multiplying the
number of hours reasonably spent on the case [by] a reasonable hourly rate." Fontaine, 415
Mass, at 324. The factors to be considered in determining a reasonable fee under this method are
provided in a helpful list drawn by Justice Stephen E. Neel as follows in the instructive Superior
Court case of In re AMICAS, Inc. S'holder Litig., 27 Mass. L. Rep. 568 (2010):
Under the lodestar method, factors to consider include (1) the nature of the case
and the issues presented, (2) the time and labor required, (3) the amount of
damages involved, (4) the result obtained, (5) the experience, reputation, and
ability of the attorneys, (6) the usual price charged for similar services by other
attorneys in the same area, and (7) the amount of awards in similar cases. See
Berman v. Linnane, 434 Mass. 301, 303 (2001); Linthicum v. Archambault, 379
Mass. 381, 388-389 (1970); Howe v. Tarvezian, 73 Mass.App.Ct. 10, 13 n.5,
(2008) (the lodestar value may encompass a number of practical factors).
In re AMICAS, Inc. S'holder Litig., 27 Mass. L. Rep. 568, 2010 Mass. Super. LEXIS 325 at *7-8
(2010). See also Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993); American Trucking
9
Ass'ns, Inc. v. Secretary of Admin., 415 Mass. 337, 352-353 (1993); Stratos v. Dept. of Public
Welfare, 387 Mass. 312, 321-322 (1982).
An "enhancement multiplier" may be applied under the lodestar method to increase the
attorneys' award according to the significance of all of these various factors. In re AMICAS, at
*10; Accord, Eldridge v. Provident Cos., Inc., 18 Mass. L. Rep. 91, 2004 Mass. Super. LEXIS
252 (2004); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 955 (1st Cir. 1984); Commonwealth
Care Alliance v. AstraZeneca Pharms. L.P., 31 Mass. L. Rep. 516, 2013 Mass. Super. LEXIS
145 at *4 n. 2, *4-8 (Aug. 2, 2013) (holding the attorneys' fees measured at the time the work
was done, multiplied by a unit enhancer of 2, was an appropriate lodestar calculation for a
$6,000,000 award; this amount was $100,000 greater than an awarding of legal fees at current
rates with a unit enhancer of 1.5 would have been).
Following this line of cases, the instant case is appropriate for a fee enhancer due to the
Defendants' purposeful, knowing and willful behavior in violation of the Lease, jury verdict, this
court's order, and G.L. c. 93A. Plaintiff therefore proposes a fee enhancer of 1.5, which would
increase the fees listed at Exhibit B by 50% from the actual fee amount of $302,224.31 to
$453,336.46. The determination of a fair and reasonable attorney's fee requires an exercise of
judgment involving the application of these various factors. Mulhern v. Roach, 398 Mass. 18,
27-28 (1986). The findings of a trial judge are entitled to considerable respect on review, and the
trial court judge's findings will not be lightly disregarded. Id.
1. Nature of the case and the issues presented.
The attorneys' fees and costs sought are for the third phase of this litigation following the
jury trial phase and initial 93A bench trial phase. The Court issued an order on January 28,
2019, which was intended to resolve all claims in the case and set the tone for the parties'
cooperation going forward. The Plaintiff elected specific performance relying the Defendants'
10
adherence to that order and the Lease. The Defendants, however, attempted to take advantage of
the Plaintiff by deceiving the Plaintiff as to the true ownership of the land until Attorney
Briansky finally admitted in Court on August 15, 2019 that the LLC Defendants were not in fact
the landowners.
Attorney Briansky's August 15, 2019 admission contradicted over twenty (20) prior
dishonest misrepresentations made by the Defendants and their counsel in the Lease, depositions,
trial testimony, pleadings, affidavits, documents, diagrams, and arguments to the Court, in which
the Defendants had claimed that the LLC Defendants were in fact the landowners, See Findings
of Fact and Rulings of Law on the Reopened 93A Trial, pp. 12-15, 114 32-35. The Court found
that the Defendants' deceptions "improperly attempted to shield the land from the jury's verdict
and Court's judgment." Id., p. 49. The Court found that the Defendants' willful and knowing
93A violations delay caused the Plaintiff painstaking delay in its municipal permitting process,
which put the Plaintiff's business at a "standstill" and cost the Plaintiff $175,000 per month for 9
months and 3 days. Id., pp. 15-16, 25-27. In addition to causing delay, the Defendants'
misconduct required the Plaintiff's litigation attorneys —Egan and McDonough — to work closely
with Plaintiff's permitting attorneys — Casey, Pacella and Teverow — so as to navigate and
"police" the Defendants' many false statements, stall tactics, deceptions, and general non-
cooperation. The result was that the Defendants' knowing and willful "contemptuous rejection
of Majestic's legitimate repeated requests for signatures necessary for permitting" drastically
increased the need for legal assistance — specifically that of Plaintiff's two litigation attorneys —
in order to assist the Plaintiff in its municipal permitting.
This is evidenced by the Defendants' refusal to approve Plaintiff's access to the land in
February 2019, refusal to timely vacate the Nissan Village vehicles in March 2019, refusal to
11
timely sign and return or correct errors on permit applications in April 2019, and refusal to
appoint business liaison contacts in lieu of trial attorneys — all until third or fourth requests from
Attorneys Egan and McDonough. Id:, pp. 8-11. Plaintiff's goal in these early months was to
save everyone litigation fees and move the case into the permitting process so that Plaintiff could
open its dealership and Defendants could begin collecting more rent. Inexplicably, the
Defendants would have none of it by persisting in their "contemptuous rejection of Majestic's
legitimate repeated requests for signatures necessary for permitting." Id., p. 50.
Then, in May and June of 2019, even after the Defendants' deception was uncovered and
brought to the Defendants' attention, the Defendants still would not make title to the land
conform to the warranty in the Lease. Id., pp. 19-21. Instead of simply fixing the title issue
consistent with their contractual obligation to do so, the Court found that the Defendants
attempted to impermissibly string Plaintiff along once again "fishing for a deal" that was better
than their existing terms under the Lease. Id., pp. 44, 50. This behavior took the permitting
process out of the hands of Attorneys Pacella, Casey and Teverow, instead requiring Plaintiff's
litigation team to negotiate with the Defendants who were engaging in "commercial extortion."
p. 53. When those negotiations failed, Plaintiff's litigation attorneys were further required to
seek judicial relief in the form of the Rule 6Q Motion to Reopen the 93A claims and the ensuing
reopened trial. Id, p. 5. The Plaintiffs offered alternatives to litigation which fell on deaf ears.
Even after Atty. Briansky admitted ownership was in the Realty Trusts on August 15,
2019, the Defendants still persisted in delaying the Plaintiff by filing futile "Emergency
Motions," engaging in a scorched earth policy, refusing to agree to simple matters such as a "Red
Lease Line" or a "Notice of Lease," and "fail[ing] to timely respond to reasonable requests for
permit signatures until November 16, 2019, in order to improve [Defendants'] position." Id., pp.
12
26-27. The Defendants cannot now protest the hours expended by Plaintiff s litigation attorneys,
which was necessitated by the Defendants' tactics from February through November of 2019.
2. Results obtained and damages awarded.
The results obtained for the Plaintiff were essentially the best results that could be
expected short of obtaining treble damages in lieu of double damages. The Plaintiff prevailed on
its Rule 60 Motion to reopen the 93A trial. Then, the Plaintiff elicited testimony and admitted
evidence to successfully prove beyond a preponderance of the evidence that the Defendants
ignored their known contractual obligations, engaged in economic extortion, strung Plaintiff
along, deceived Plaintiff as to ownership, and knowingly and willfully violated M.O.L. c. 93A
from February 13, 2019 through November 16, 2019. Id., pp. 7-27. This resulted in a 93A
award of $175,000 per month for a total of $1,592,250, which was then doubled to the amount of
$3,184,500. Id., pp. 27, 53.
3. The time and labor required by Plaintiff's counsel.
Over the past fifteen months of extended litigation, the Plaintiff's counsel has devoted
855.45 hours of attorney and paralegal labor during this "reopened" 93A phase of the litigation.
See Ex. B. Applying the respective rates of the attorneys and paralegals who worked on the case,
this yields a fee amount of $302,224.31. See Ex. B. Over this time the Defendants' have filed a
multitude of unnecessary motions, subpoenas, oppositions and "Emergency" motions, which
have required the Plaintiff's counsel to immediately drop other cases and attend to this litigation.
As discussed above under Factor 1, the Defendants implemented every roadblock possible —
even "dishonest[y]" as to the ownership of the Leased Premises —to thwart Plaintiff's full
enjoyment of the Lease and business objectives in a "contemptuous" manner. Id., pp. 26-27, 50.
13
Plaintiff's counsel spent multiple days preparing for and in trial in this phase of the
litigation. Defendants' and Atty. Manoogian's privilege invocations triggered the interjection of
criminal law into the case. Plaintiffs were required to prove their case through hostile witnesses
who would not answers questions beyond their identity. Id., pp. 28-44. The trial schedule
required Plaintiff's counsel to forego other case work, a factor considered by courts in assessing
attorneys' fees. See Dad Constr. Co. v. Heimlich, 2008 Mass. Super., LEXIS 203, *8 (2008).
In this case, there were also approximately 113 additional "93A Exhibits" which required
substantial preparation, document review, and diligence. The documents entered as exhibits
were a mere tip of the iceberg of the thousands of pages of documents exchanged in discovery,
which the Plaintiff's counsel was required to enter into privilege logs and prepare to respond to if
cited or used by the other side in trial. The Defendants also issued letters rogatory for discovery
in Ohio. The time and labor required on this case is reflected by the parties' respective
voluminous proposed findings of fact and rulings of law, the amount of motions and filings in
the case, and the document-heavy question-and-answer process opted by the Defendants in lieu
of simple live testimony. Id., pp. 28-44.
4. The price charged for similar services by other attorneys in the same area.
The hourly rates charged by Plaintiff's counsel since the previous fee and costs petition
($495 for Attorney Egan, $300 for Attorney McDonough, and $125 for paralegals) were
previously approved by the Court. See Court's two prior Orders Allowing Plaintiff's two prior
Motions for Assessment of Attorneys' Fees and Costs, dated November 9, 2018 and March 14,
2019. The Court's two prior approvals of these hourly rates should become the law of the case.
On October 7, 2019, Attorney McDonough's hourly rate was increased from $300 to
$325. On November 1, 2019, Egan, Flanagan and Cohen, P.C. increased its paralegal hourly
14
billing rate from $125 to 140 per hour in line with market rates of other law firms. These two
rates (which are new to this case) are well within the range of what is charged by similar law
firms throughout the region, including in Springfield, Mass.
The following Mass. cases provide examples in which courts have approved similar and
even higher hourly rates than those charged by the Plaintiff's law firm in this action:
• Kent W. Pecoy v. Glenn R. Hanson, et al, Hampden County Superior Court,
Docket No. 1379CV00738 (Carey, J.) awarded John J. Egan $450 per hour, and Egan,
Flanagan and Cohen PC associates $300 per hour.
• Dino Carando, et al v. Peter F. Carando, Jr., et al, Hampden County Superior
Court, Docket No. 08-0209 (Moriarty, J.) awarded John J. Egan $450 per hour and Egan,
Flanagan and Cohen PC associates $260 per hour.
• Brooks Automation, Inc. v. Blueshift Techs., Inc., 21 Mass. L. Rep. 53, 2006
Mass. Super. LEXIS 238 (2006), aff'd, 69 Mass. App. Ct. 1107, 868 N.E.2d 953 (2007).
In this case, the Superior Court awarded hourly rates of $500, $600, and $625 per hour
for partners with twelve, nineteen, and twenty-three years of experience, respectively,
and hourly rates of $410 for a fifth-year associate, $300 for a second-year associate, and
$260 for a first-year associate.
• Fronk v. Fowler, 22 Mass L. Rep. 366, 2007 Mass Super. LEXIS 110, at *13-14
(2007), aff'd, 456 Mass. 317, 336 (2010). In this case, the Superior Court approved of
hourly rates of $450 and $575 per hour for two partners, and hourly rates ranging from
$195-$360 for the five associates who worked on the case over the course of four years.
This award was affirmed by the Supreme Judicial Court as reasonable.3
• Tuli v. Brigham & Women's Hosp., Inc., 2009 U.S. Dist. LEXIS 129768 (D.
Mass. June 8, 2009), aff'd, 656 F.3d 33 (1st Cir. 2011). In this case, the district court
approved of rates ranging from $560-$735 per hour for partners; $410-$495 per hour for
a fourth-year associate; $320-$385 per hour for a second-year associate; $250-$335 per
hour for first-year associates; and $240-$275 per hour for paralegals.
• Davis v. Footbridge Eng'g Servs., LLC, 2011 U.S. Dist. LEXIS 93645, at *14 (D.
Mass. Aug. 22, 2011). In this case, the district court approved of rates ranging from
3
This case involved a dispute over partnership rights in a commercial real estate venture.This was a G.L. c.
231 § 6F case. The principal attorney for the successful party (defendants) was Stephen Olesky, Esq. of Boston,
who was admitted to the Massachusetts bar in 1968. Attorney Egan was admitted in 1969 and holds many of the
same honors Mr. Olesky does. Mr. Olesky was compensated at $575 perhour, a ratethat was approved by the SJC.
The Plaintiff's composite hourly rate over 855.45 hours isapproximatel y
Mr. Egan here seeks only $495 per hour.
$360 per hour. See Ex. B.
15
$650-$565 per hour for partners; $350-$425 per hour for associates; and $140-$210 per
hour for paralegals.
The above rates are similar to or higher than those charged by the Plaintiff's counsel in
this case, which weighs in favor of Plaintiff's request for a 1.5 factor fee enhancer.
5. The experience, reputation, and ability of the attorneys.
The experience and background of Attorneys Egan and McDonough are detailed in the
Affidavit of John J. Egan, Esq. Ex. A. Attorney Egan, a partner at the Springfield law firm of
Egan, Flanagan and Cohen, P.C., is a lawyer with over 50 years of extensive experience in civil
litigation, having tried over 100 jury trials and 100 bench trials. Ex. A, Egan Affidavit, at TR 1-
13. Attorney Egan has extensive experience in business disputes and has established new law for
Massachusetts, such as in Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842 (1976) and
Zimmerman v. Bogoff, 402 Mass. 650 (1988). Id., ¶ 8.
Attorney Egan was counsel in Fontaine v. Ebtec Corp., 415 Mass. 309 (1993). Id.
Fontaine is the first case in Massachusetts to employ the lodestar approach to fee determination.
Id. Attorney Egan has served on continuing legal education panels in trialadvocacy at WNEU
Law School, Suffolk University Law School, Boston College Law School, and Harvard Law
School, in addition to serving on panels for various Bar Associations. Id., ¶ 9. He is listed in the
Best Lawyers in America, Massachusetts Top One Hundred Lawyers, and named one of the Top
Ten Lawyers of the Year by Massachusetts Lawyers Weekly in 1997 and 2008. Id., ¶ 10. He
has argued cases in the Supreme Judicial Court, the Massachusetts Appeals Court, the U.S.
District Court for the District of Massachusetts, the First Circuit Court of Appeals, and the
United States Supreme Court. Id., IN 4-6.
Michael G. McDonough, Esq., who was admitted to the practice of law in 2011. Id., ¶
18. On October 1, 2018, he was named a partner at Egan, Flanagan and Cohen, P.C. Attorney
16
McDonough has tried over 10 jury trials and over 10 bench trials. Id. Attorney McDonough
focuses on trial advocacy in cases involving commercial and business disputes. Id. In addition
to his trial experience, Attorney McDonough has extensive experience in pre-litigation and
discovery management, having prosecuted and defended hundreds of complex prosecutions and
investigations during his service as an attorney in the U.S. Army Judge Advocate General's
Corps. Id. Attorney McDonough also served as a Special Assistant United States Attorney,
having prosecuted hundreds of cases for the Southern District of New York from 2013 — 2014.
Id. Attorney McDonough has also tried cases in the MCAD and before the Merit Systems
Protection Board, and volunteers on behalf of disabled veterans. Id.
Attorney McDonough was responsible for all discovery matters, exhibits, motions,
Preview
From the beginning in 2017, Plaintiff has pursued and defended this action appropriately and has advanced substantial funds to prosecute the case both in the underlying jury trialand at the initial 93A trial. This Court awarded the Plaintiff its fees, costs and expert costs for those two phases of the trial. Now, the Court has awarded the Plaintiff its fees and costs for the re- opened 93A trial. See Findings of Fact and Rulings of Law on the Reopened 93A Trial, pp. 53- 54.. The purpose of this Motion is to demonstrate the reasonableness of the Plaintiff's requests for $302,224.31 in fees and $4,604.45 in costs, as well as the reasons why this Court should adopt a fee enhancer to increase the fee award to $453,336.46. II. Facts. 1. On December 27, 2017, Plaintiff commenced this action in Hampden County by filing a Complaint that included claims for breach of contract, breach of the implied covenant of good faith and fair dealing, declaratory relief, and violations of G.L. c. 93A. 2. After a jury trial on September 18 — 27, 2018, the jury was asked to decide several special questions. See Special Verdict Form. 3. On September 27, 2018, the jury found for Plaintiff on all counts. Id. 4. Based on the jury's findings, the Plaintiff was entitled to its election of either $3,762,500 in delay damages and specific enforcement of the lease, or $5,616,500 in "benefit of the bargain" or "walk-away" damages. Id. 5. On November 9, 2018, the Court allowed the Plaintiff's first Motion for Attorneys' Fees and Costs, which was premised on the language within the Lease at ¶ 28. See Memorandum and Order on Plaintiff/Defendant-in-Counterclaim's Motion for Attorneys' Fees and Costs, dated November 9, 2018. The Court awarded contract-based fees in the amount of $412,673.50 in and $12,239.12 in costs. Id. In its November 9, 2019 decision, the Court did not 2 interpret the Lease's language to include the Plaintiff's expert expenses, approximately $103,494.90, as costs that were then recoverable under the contract. Id. The Initial 93A Trial 6. Plaintiff's remaining counts related to equitable relief and claims under G.L. c. 93A. See Complaint and Jury Demand. The Plaintiff's 93A counts were addressed at a bench trial which occurred on October 26, 2018 and December 10, 2018. All facts and evidence presented in the jury trial were incorporated into the 93A bench trial to preserve judicial economy and reduce litigation costs. 7. On January 28, 2019, after the parties each called witnesses, submitted exhibits, and filed proposed findings of fact and rulings of law, the Court found for the Plaintiff on its claims for equitable relief and violations of M.G.L. c. 93A. See Findings of Fact and Rulings of Law, dated January 28, 2019. The Court found that the Defendants "willfully and knowingly committed [eight] unfair methods of competition and unfair and deceptive acts and practices in violation of G.L. c. 93A, §§ 2, 11." Id., p. 29. The Defendants' violations of G.L. c. 93A included: a. The Defendants' purported reasons for terminating the Lease were a wrongful pretext for Al Dos Anjos's "bitterness" over Balise's purchase of the Cash Land. Id., pp. 29-30. b. The Defendants wrongfully leveraged their approval power under ¶ 2(a) of the Lease. Id., p. 30. c. The Defendants attempted to obtain coerced advantages and improvements to the original contract by demanding a Honda exclusivity provision. Id., pp. 30 — 31. d. Dos Anjos, the Defendants' principal, intended to extract additional concessions from Plaintiff that were not bargained for in the Lease, amounting to a "knowing use of a pretext to coerce lease amendments and to obtain the Cash Land," which established willfulness as a matter of law. Id.,p. 31. 3 e. The Defendants leveraged their approval authority under ¶ 2(a) of the Lease to obtain the Cash Land for the price of $1.00. Id. f. The Defendants "willfully and knowingly strung the along Majestic to see what unwarranted benefits the Defendants could extract from Plaintiff." Id., pp. 31-32. g. The Defendants refused to cure its default upon Plaintiffs addressing and satisfying of all pretextual reasons for the Defendants' termination. Id., p. 32. h. The Defendants "willfully and knowingly withheld the $150,000 deposit." Id. 8. With respect to actual damages, the Court awarded the Plaintiff $4,462,500 in delay damages (with the potential for these damages to continue to accrue at $175,000 per month) in the event that Plaintiff elects to enforce the Lease. Based on the Defendants' repeated violations of G.L. c. 93A, the Court doubled the above amount resulting in delay damages of $8,925,000. Id., p. 34. 9. The Court also ordered the Defendants to pay additional attorneys' fees and costs: Based on Defendants' violations of G.L, c. 93A, Defendants are ordered to pay Plaintiff's attorneys' fees and costs, including the amounts I have ordered pursuant to the jury's verdict in favor of the Plaintiff on Count 3 of its Complaint , together with any additional fees and costs relating to Count 5. Id. The Re-Opened 93A Trial 10. In its first c. 93A Findings of Fact and Rulings of Law, dated January 28, 2019, the Court cautioned the Defendants on the possibility of additional damages with the following language: Should Majestic elect specific performance, ...Majestic's delay damages of $175,000 per month will continue until such time as Defendants have complied with my orders relating to specific performanc e below. Id, p. 23. 4 11. On February 12, 2019, the Plaintiff timely elected its remedy of specific performance and delay damages, which entitled the Plaintiff to the full benefit of the Lease as well as unfettered access to the Leased Property and the Defendants' cooperation. Unfortunately, from February 13, 2019 through November 16, 2019, the Defendants misrepresented the true ownership of the land making up the Leased Premises, thereby wrongfully frustrating and delaying Plaintiff's municipal permitting process and the opening of Plaintiff's business. The Defendants' dishonesty, misrepresentations, unfair and deceptive practices and misconduct are well documented in the Court's "Findings of Fact and Rulings of Law on the Reopened 93A Trial," dated April 30, 2020, which is incorporated as if fully stated herein. See Findings of Fact and Rulings of Law on the Reopened 93A Trial, pp. 15-26. 12. In its "Findings of Fact and Rulings of Law on the Reopened 93A Trial," the Court listed over twenty (20) misrepresentations made by the Defendants to the Plaintiff and the Court as to the true ownership of the Leased Premises. Id., pp. 12-15. In finding the Defendants in violation of M.G.L. c. 93A once again, the Court found that "the Defendants knowingly ignored their contractual obligations," "fail[ed to] cooperate with Majestic," failed to follow the Court's Order and the jury verdict instructing the Defendants that the Lease was in full force in effect, failed to follow the Lease, failed to give Majestic "unfettered access to the Leased Premises," and failed to "cooperate and approve any necessary paperwork for any permits or other items required for Majestic's full use and enjoyment of the Leased Premises, planned construction, and operation of its business." Id., p. 26, ¶ 95. 13. The Court also found that "the Defendants were dishonest about the issue of ownership from January 29, 2018 until August 15, 2019. Thereafter, the Defendants failed to timely respond to reasonable requests for permit signatures until November 16, 2019, in order to 5 improve its position." Id., pp. 26-27, ¶ 96. The Court found that "the Defendants caused Majestic 9 months and 3 days of unnecessary and intentional delay from February 13, 2019 through November 16, 2019." Id.,p. 27,1197. 14. The Court found "by a preponderance of the evidence that the Defendants caused Majestic to sustain economic delay damages of $175,000 per month" for "an additional total of $1,592,260." Id., p. 27, Ill 100-101. In its thorough and detailed 54-page analysis of the facts and law, the Court held that the Defendants' conduct "more than meets the standard of an `unfair or deceptive act or practice' — even taking into account that both parties to the transaction were sophisticated business people." Id., p. 47 (citing Anthony's Pier Four, Inc., 411 Mass. at 475). 15. The Court cited numerous instances in which the Defendants "willfully and knowingly committed the following unfair methods of competition and unfair and deceptive acts and practices in violation of G.L. c. 93A." Id., pp. 48-50. The Court found that the "actions by Dos Anjos and his agents on behalf of the Defendants constituted the `pattern of a breach of contract as a lever to obtain advantage' for the Defendants when the Defendants should have simply fixed the problem in line with fee simple ownership as promised by the Lease at 16(a)(ii) and 34(d)." Id., p. 49. 16. The Court &so found that "[t]he evidence supports a finding that the Defendants willfully and knowingly strung along Majestic to see what unwarranted benefits the Defendants could extract from Plaintiff such as contract improvements [, which] violates G.L. c. 93A as a matter of law." Id. (citing Full Spectrum Software, Inc. v. Forte Automation, Sys., 858 F.3d 666, 674 (1St Cir. 2017) ("one business's stringing along of another to the other's detriment" can violate G.L. c. 93A, § 11); Greenstein v. Flatley, 19 Mass. App. Ct. 351, 358 (1985); Mass. Eye and Ear Infirmary v. QLT Phototherapeutics, Inc., 552 f.3d 47, 69-70 (1st Cir. 2009)). 6 17. Reflecting on the Defendants' intentional misconduct from January through November of 2019, the Court held that the "overwhelming mass of the Defendants' misrepresentations far outweighs their argument that Majestic's confusion as to the true ownership served to either mitigate itsdamages or release the Defendants of liability" and the "Defendants' contemptuous rejection of Majestic's legitimate repeated requests for signatures necessary for permitting, standing alone, supports Majestic's claim for violations of G.L. c. 93A." Id., p. 50. Based on the Court's finding that the Defendants engaged in "commercial extortion," the Court awarded Plaintiff "double damages." Id., p. 53 (citing Pepsi-Cola Metropolitan Bottling Co. v. Checkers, Inc., 754 F.2d at 17-19 (commercial extortion giving rise to c. 93A liability, and treble damages, where defendant withheld payment due under contract not because of dispute over liability or inability to pay but, rather, as "'wedge' against [plaintiff] `to enhance [defendant's] bargaining power for more product.'")). In doing so, the Court doubled the re-opened 93A award from $1,592,250 to $3,184,500. Id,, p. 53. 18. The Court also reiterated that G.L. c. 93A "provides for recovery of ... attorney's fees" and ruled that: Based upon Defendants' willful and knowing violations of G.L. c. 93A, Defendants are ordered to pay Plaintiff's attorneys' fees and costs, including amounts I have already ordered pursuant to the jury's verdict in favor of Plaintiff on Count 3 of its Complaint, together with the amounts I have already ordered pursuant to my Order of January 28, 2019 as to costs associated with Count 5. Id., pp. 50, 53-54. III. Legal Standard. First, Plaintiff is entitled to an award of attorneys' fees and costs based upon the contract, in this case a commercial lease. See Jury Ex. 2, ¶ 28. The contract claims against the Defendants were related to a Lease executed by the parties on October 28, 2016. Id. As the 7 Court found, and as is detailed above, the Defendants repeatedly breached and ignored their known contractual obligations from January 29, 2019 through November 16, 2019.2 Id., pp. 26- 27,¶96. Second, G.L. c. 93A, § 11 provides a statutory basis for attorneys' fees and costs based upon the Defendants' rampant willful and knowing 93A violations: If the court finds in any action commenced hereunder, that there has been a violation of [G.:. c. 93A, § 2], the petitioner shall, in addition to other relief provided for by this section and irrespectiv e of the amount in controvers y, be awarded reasonable attorneys' fees and costs incurred in said action. 2 The Lease in this case entitles the Plaintiff to attorneys' fees and costs: 28. Events of Landlord's Default; Tenant's Remedies. Any of the following occurrences, conditions or acts by Landlord shall constitutean "Event of Default"; (a) Landlord's failure to make any payments of money due Tenant hereunder within ten (10) days after the receipt of written notice from Tenant that same isoverdue (in which event the delinquent amount shall accrue interestat the Default Rate); or (b) Landlord's failureto perform any nonmonetary obligation of Landlord hereunder within thirty(30) days afterreceipt of written notice from Tenant to Landlord specifying such default and demanding thatthe same be cured; provided that, if such default cannot with due diligence be wholly cured within such thirty(30) day period, Landlord shall have such longer period as may be reasonably necessary to cure the default, so long as Landlord proceeds promptly to commence the cure of same within such thirty (30) day period and diligently prosecutes the cure to completion. Upon the occurrence of an Event of Default by Landlord, at Tenant's option, in addition to any and all other remedies which it may have at law and/or in equity (to the extent not inconsistent with the specific provisions of this Lease), and without its actions being deemed an election of remedies or a cure of Landlord's default,Tenant may do all or any of the following: (i)pay or perform such obligations and offset Tenant's reasonable and actual cost of performance, including any and all transaction costs and attorneys' fees, plus interest at the Default Rate, against the Base Rent due Landlord hereunder; or (ii) suefor damages, including costs and interest, transaction attorneys' fees as specified in subsection (i) above. In no event shallTenant have any right to terminate this Lease as a result of an Event of Default by Landlord. Upon a breach of the warranties and representations contained in Section 16, Tenant shallbe entitledto the remedies provided therein, in addition to those remedies provided herein and at law or in equity. All amounts, including transaction interest, costs and attorneys'fees, arisingout of uncured defaults of Landlord shall, upon judgment being entered in favor of Tenant therefor, constitute liens against Landlord's interest in the Premises, which may be enforced by non-judicial means available under State law, or any other applicable proceedings. The various rights and remedies reserved to Tenant herein are cumulative, and Tenant may pursue any and all rightsand remedies setforth herein (to the extent not inconsistent with the specific provisions of this Lease), whether at the same time or otherwise; provided that in no event shall Landlord be obligated to compensate Tenant for any speculative or consequential damages caused by Landlord's failureto perform its obligations under this Lease. See Jury Ex. 2, ¶ 28 (emphasis supplied). 8 "While the amount of a reasonable attorney's fee is largely discretionary, a judge `should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.' No one factor is determinative, and a factor-by-factor analysis, although helpful, is not required.' Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 429-30 (2205) (citations omitted); see also Berman v. Linnane, 434 Mass. 301, 302-303 (2001); Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993) (both quoting Linthicum v. Archambault, 379 Mass. 381, 388-389 (1973)). IV. Argument. A. Plaintiff's attorneys' fees of $302,224.31 are reasonable and should be awarded under the lodestar method. A fee enhancer of 1.5 should also be applied to increase the fee award to $453,336.46. The calculation of reasonable fees under the lodestar method involves "multiplying the number of hours reasonably spent on the case [by] a reasonable hourly rate." Fontaine, 415 Mass, at 324. The factors to be considered in determining a reasonable fee under this method are provided in a helpful list drawn by Justice Stephen E. Neel as follows in the instructive Superior Court case of In re AMICAS, Inc. S'holder Litig., 27 Mass. L. Rep. 568 (2010): Under the lodestar method, factors to consider include (1) the nature of the case and the issues presented, (2) the time and labor required, (3) the amount of damages involved, (4) the result obtained, (5) the experience, reputation, and ability of the attorneys, (6) the usual price charged for similar services by other attorneys in the same area, and (7) the amount of awards in similar cases. See Berman v. Linnane, 434 Mass. 301, 303 (2001); Linthicum v. Archambault, 379 Mass. 381, 388-389 (1970); Howe v. Tarvezian, 73 Mass.App.Ct. 10, 13 n.5, (2008) (the lodestar value may encompass a number of practical factors). In re AMICAS, Inc. S'holder Litig., 27 Mass. L. Rep. 568, 2010 Mass. Super. LEXIS 325 at *7-8 (2010). See also Fontaine v. Ebtec Corp., 415 Mass. 309, 324-325 (1993); American Trucking 9 Ass'ns, Inc. v. Secretary of Admin., 415 Mass. 337, 352-353 (1993); Stratos v. Dept. of Public Welfare, 387 Mass. 312, 321-322 (1982). An "enhancement multiplier" may be applied under the lodestar method to increase the attorneys' award according to the significance of all of these various factors. In re AMICAS, at *10; Accord, Eldridge v. Provident Cos., Inc., 18 Mass. L. Rep. 91, 2004 Mass. Super. LEXIS 252 (2004); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 955 (1st Cir. 1984); Commonwealth Care Alliance v. AstraZeneca Pharms. L.P., 31 Mass. L. Rep. 516, 2013 Mass. Super. LEXIS 145 at *4 n. 2, *4-8 (Aug. 2, 2013) (holding the attorneys' fees measured at the time the work was done, multiplied by a unit enhancer of 2, was an appropriate lodestar calculation for a $6,000,000 award; this amount was $100,000 greater than an awarding of legal fees at current rates with a unit enhancer of 1.5 would have been). Following this line of cases, the instant case is appropriate for a fee enhancer due to the Defendants' purposeful, knowing and willful behavior in violation of the Lease, jury verdict, this court's order, and G.L. c. 93A. Plaintiff therefore proposes a fee enhancer of 1.5, which would increase the fees listed at Exhibit B by 50% from the actual fee amount of $302,224.31 to $453,336.46. The determination of a fair and reasonable attorney's fee requires an exercise of judgment involving the application of these various factors. Mulhern v. Roach, 398 Mass. 18, 27-28 (1986). The findings of a trial judge are entitled to considerable respect on review, and the trial court judge's findings will not be lightly disregarded. Id. 1. Nature of the case and the issues presented. The attorneys' fees and costs sought are for the third phase of this litigation following the jury trial phase and initial 93A bench trial phase. The Court issued an order on January 28, 2019, which was intended to resolve all claims in the case and set the tone for the parties' cooperation going forward. The Plaintiff elected specific performance relying the Defendants' 10 adherence to that order and the Lease. The Defendants, however, attempted to take advantage of the Plaintiff by deceiving the Plaintiff as to the true ownership of the land until Attorney Briansky finally admitted in Court on August 15, 2019 that the LLC Defendants were not in fact the landowners. Attorney Briansky's August 15, 2019 admission contradicted over twenty (20) prior dishonest misrepresentations made by the Defendants and their counsel in the Lease, depositions, trial testimony, pleadings, affidavits, documents, diagrams, and arguments to the Court, in which the Defendants had claimed that the LLC Defendants were in fact the landowners, See Findings of Fact and Rulings of Law on the Reopened 93A Trial, pp. 12-15, 114 32-35. The Court found that the Defendants' deceptions "improperly attempted to shield the land from the jury's verdict and Court's judgment." Id., p. 49. The Court found that the Defendants' willful and knowing 93A violations delay caused the Plaintiff painstaking delay in its municipal permitting process, which put the Plaintiff's business at a "standstill" and cost the Plaintiff $175,000 per month for 9 months and 3 days. Id., pp. 15-16, 25-27. In addition to causing delay, the Defendants' misconduct required the Plaintiff's litigation attorneys —Egan and McDonough — to work closely with Plaintiff's permitting attorneys — Casey, Pacella and Teverow — so as to navigate and "police" the Defendants' many false statements, stall tactics, deceptions, and general non- cooperation. The result was that the Defendants' knowing and willful "contemptuous rejection of Majestic's legitimate repeated requests for signatures necessary for permitting" drastically increased the need for legal assistance — specifically that of Plaintiff's two litigation attorneys — in order to assist the Plaintiff in its municipal permitting. This is evidenced by the Defendants' refusal to approve Plaintiff's access to the land in February 2019, refusal to timely vacate the Nissan Village vehicles in March 2019, refusal to 11 timely sign and return or correct errors on permit applications in April 2019, and refusal to appoint business liaison contacts in lieu of trial attorneys — all until third or fourth requests from Attorneys Egan and McDonough. Id:, pp. 8-11. Plaintiff's goal in these early months was to save everyone litigation fees and move the case into the permitting process so that Plaintiff could open its dealership and Defendants could begin collecting more rent. Inexplicably, the Defendants would have none of it by persisting in their "contemptuous rejection of Majestic's legitimate repeated requests for signatures necessary for permitting." Id., p. 50. Then, in May and June of 2019, even after the Defendants' deception was uncovered and brought to the Defendants' attention, the Defendants still would not make title to the land conform to the warranty in the Lease. Id., pp. 19-21. Instead of simply fixing the title issue consistent with their contractual obligation to do so, the Court found that the Defendants attempted to impermissibly string Plaintiff along once again "fishing for a deal" that was better than their existing terms under the Lease. Id., pp. 44, 50. This behavior took the permitting process out of the hands of Attorneys Pacella, Casey and Teverow, instead requiring Plaintiff's litigation team to negotiate with the Defendants who were engaging in "commercial extortion." p. 53. When those negotiations failed, Plaintiff's litigation attorneys were further required to seek judicial relief in the form of the Rule 6Q Motion to Reopen the 93A claims and the ensuing reopened trial. Id, p. 5. The Plaintiffs offered alternatives to litigation which fell on deaf ears. Even after Atty. Briansky admitted ownership was in the Realty Trusts on August 15, 2019, the Defendants still persisted in delaying the Plaintiff by filing futile "Emergency Motions," engaging in a scorched earth policy, refusing to agree to simple matters such as a "Red Lease Line" or a "Notice of Lease," and "fail[ing] to timely respond to reasonable requests for permit signatures until November 16, 2019, in order to improve [Defendants'] position." Id., pp. 12 26-27. The Defendants cannot now protest the hours expended by Plaintiff s litigation attorneys, which was necessitated by the Defendants' tactics from February through November of 2019. 2. Results obtained and damages awarded. The results obtained for the Plaintiff were essentially the best results that could be expected short of obtaining treble damages in lieu of double damages. The Plaintiff prevailed on its Rule 60 Motion to reopen the 93A trial. Then, the Plaintiff elicited testimony and admitted evidence to successfully prove beyond a preponderance of the evidence that the Defendants ignored their known contractual obligations, engaged in economic extortion, strung Plaintiff along, deceived Plaintiff as to ownership, and knowingly and willfully violated M.O.L. c. 93A from February 13, 2019 through November 16, 2019. Id., pp. 7-27. This resulted in a 93A award of $175,000 per month for a total of $1,592,250, which was then doubled to the amount of $3,184,500. Id., pp. 27, 53. 3. The time and labor required by Plaintiff's counsel. Over the past fifteen months of extended litigation, the Plaintiff's counsel has devoted 855.45 hours of attorney and paralegal labor during this "reopened" 93A phase of the litigation. See Ex. B. Applying the respective rates of the attorneys and paralegals who worked on the case, this yields a fee amount of $302,224.31. See Ex. B. Over this time the Defendants' have filed a multitude of unnecessary motions, subpoenas, oppositions and "Emergency" motions, which have required the Plaintiff's counsel to immediately drop other cases and attend to this litigation. As discussed above under Factor 1, the Defendants implemented every roadblock possible — even "dishonest[y]" as to the ownership of the Leased Premises —to thwart Plaintiff's full enjoyment of the Lease and business objectives in a "contemptuous" manner. Id., pp. 26-27, 50. 13 Plaintiff's counsel spent multiple days preparing for and in trial in this phase of the litigation. Defendants' and Atty. Manoogian's privilege invocations triggered the interjection of criminal law into the case. Plaintiffs were required to prove their case through hostile witnesses who would not answers questions beyond their identity. Id., pp. 28-44. The trial schedule required Plaintiff's counsel to forego other case work, a factor considered by courts in assessing attorneys' fees. See Dad Constr. Co. v. Heimlich, 2008 Mass. Super., LEXIS 203, *8 (2008). In this case, there were also approximately 113 additional "93A Exhibits" which required substantial preparation, document review, and diligence. The documents entered as exhibits were a mere tip of the iceberg of the thousands of pages of documents exchanged in discovery, which the Plaintiff's counsel was required to enter into privilege logs and prepare to respond to if cited or used by the other side in trial. The Defendants also issued letters rogatory for discovery in Ohio. The time and labor required on this case is reflected by the parties' respective voluminous proposed findings of fact and rulings of law, the amount of motions and filings in the case, and the document-heavy question-and-answer process opted by the Defendants in lieu of simple live testimony. Id., pp. 28-44. 4. The price charged for similar services by other attorneys in the same area. The hourly rates charged by Plaintiff's counsel since the previous fee and costs petition ($495 for Attorney Egan, $300 for Attorney McDonough, and $125 for paralegals) were previously approved by the Court. See Court's two prior Orders Allowing Plaintiff's two prior Motions for Assessment of Attorneys' Fees and Costs, dated November 9, 2018 and March 14, 2019. The Court's two prior approvals of these hourly rates should become the law of the case. On October 7, 2019, Attorney McDonough's hourly rate was increased from $300 to $325. On November 1, 2019, Egan, Flanagan and Cohen, P.C. increased its paralegal hourly 14 billing rate from $125 to 140 per hour in line with market rates of other law firms. These two rates (which are new to this case) are well within the range of what is charged by similar law firms throughout the region, including in Springfield, Mass. The following Mass. cases provide examples in which courts have approved similar and even higher hourly rates than those charged by the Plaintiff's law firm in this action: • Kent W. Pecoy v. Glenn R. Hanson, et al, Hampden County Superior Court, Docket No. 1379CV00738 (Carey, J.) awarded John J. Egan $450 per hour, and Egan, Flanagan and Cohen PC associates $300 per hour. • Dino Carando, et al v. Peter F. Carando, Jr., et al, Hampden County Superior Court, Docket No. 08-0209 (Moriarty, J.) awarded John J. Egan $450 per hour and Egan, Flanagan and Cohen PC associates $260 per hour. • Brooks Automation, Inc. v. Blueshift Techs., Inc., 21 Mass. L. Rep. 53, 2006 Mass. Super. LEXIS 238 (2006), aff'd, 69 Mass. App. Ct. 1107, 868 N.E.2d 953 (2007). In this case, the Superior Court awarded hourly rates of $500, $600, and $625 per hour for partners with twelve, nineteen, and twenty-three years of experience, respectively, and hourly rates of $410 for a fifth-year associate, $300 for a second-year associate, and $260 for a first-year associate. • Fronk v. Fowler, 22 Mass L. Rep. 366, 2007 Mass Super. LEXIS 110, at *13-14 (2007), aff'd, 456 Mass. 317, 336 (2010). In this case, the Superior Court approved of hourly rates of $450 and $575 per hour for two partners, and hourly rates ranging from $195-$360 for the five associates who worked on the case over the course of four years. This award was affirmed by the Supreme Judicial Court as reasonable.3 • Tuli v. Brigham & Women's Hosp., Inc., 2009 U.S. Dist. LEXIS 129768 (D. Mass. June 8, 2009), aff'd, 656 F.3d 33 (1st Cir. 2011). In this case, the district court approved of rates ranging from $560-$735 per hour for partners; $410-$495 per hour for a fourth-year associate; $320-$385 per hour for a second-year associate; $250-$335 per hour for first-year associates; and $240-$275 per hour for paralegals. • Davis v. Footbridge Eng'g Servs., LLC, 2011 U.S. Dist. LEXIS 93645, at *14 (D. Mass. Aug. 22, 2011). In this case, the district court approved of rates ranging from 3 This case involved a dispute over partnership rights in a commercial real estate venture.This was a G.L. c. 231 § 6F case. The principal attorney for the successful party (defendants) was Stephen Olesky, Esq. of Boston, who was admitted to the Massachusetts bar in 1968. Attorney Egan was admitted in 1969 and holds many of the same honors Mr. Olesky does. Mr. Olesky was compensated at $575 perhour, a ratethat was approved by the SJC. The Plaintiff's composite hourly rate over 855.45 hours isapproximatel y Mr. Egan here seeks only $495 per hour. $360 per hour. See Ex. B. 15 $650-$565 per hour for partners; $350-$425 per hour for associates; and $140-$210 per hour for paralegals. The above rates are similar to or higher than those charged by the Plaintiff's counsel in this case, which weighs in favor of Plaintiff's request for a 1.5 factor fee enhancer. 5. The experience, reputation, and ability of the attorneys. The experience and background of Attorneys Egan and McDonough are detailed in the Affidavit of John J. Egan, Esq. Ex. A. Attorney Egan, a partner at the Springfield law firm of Egan, Flanagan and Cohen, P.C., is a lawyer with over 50 years of extensive experience in civil litigation, having tried over 100 jury trials and 100 bench trials. Ex. A, Egan Affidavit, at TR 1- 13. Attorney Egan has extensive experience in business disputes and has established new law for Massachusetts, such as in Wilkes v. Springside Nursing Home, Inc., 370 Mass. 842 (1976) and Zimmerman v. Bogoff, 402 Mass. 650 (1988). Id., ¶ 8. Attorney Egan was counsel in Fontaine v. Ebtec Corp., 415 Mass. 309 (1993). Id. Fontaine is the first case in Massachusetts to employ the lodestar approach to fee determination. Id. Attorney Egan has served on continuing legal education panels in trialadvocacy at WNEU Law School, Suffolk University Law School, Boston College Law School, and Harvard Law School, in addition to serving on panels for various Bar Associations. Id., ¶ 9. He is listed in the Best Lawyers in America, Massachusetts Top One Hundred Lawyers, and named one of the Top Ten Lawyers of the Year by Massachusetts Lawyers Weekly in 1997 and 2008. Id., ¶ 10. He has argued cases in the Supreme Judicial Court, the Massachusetts Appeals Court, the U.S. District Court for the District of Massachusetts, the First Circuit Court of Appeals, and the United States Supreme Court. Id., IN 4-6. Michael G. McDonough, Esq., who was admitted to the practice of law in 2011. Id., ¶ 18. On October 1, 2018, he was named a partner at Egan, Flanagan and Cohen, P.C. Attorney 16 McDonough has tried over 10 jury trials and over 10 bench trials. Id. Attorney McDonough focuses on trial advocacy in cases involving commercial and business disputes. Id. In addition to his trial experience, Attorney McDonough has extensive experience in pre-litigation and discovery management, having prosecuted and defended hundreds of complex prosecutions and investigations during his service as an attorney in the U.S. Army Judge Advocate General's Corps. Id. Attorney McDonough also served as a Special Assistant United States Attorney, having prosecuted hundreds of cases for the Southern District of New York from 2013 — 2014. Id. Attorney McDonough has also tried cases in the MCAD and before the Merit Systems Protection Board, and volunteers on behalf of disabled veterans. Id. Attorney McDonough was responsible for all discovery matters, exhibits, motions,