*1 respondents’ petition damages Submitted on sanctions filed December 8 for fees and motion for and 15, 1995, (opinion App 572, filed November see 137 Or (1996)) 1177), awarded; rev 905 P2d den 323 Or 153 motions for 29,1996 damages May and sanctions denied CONCEPTS, INC., COMPUTER Plan; Profit Sharing Inc., Computer Concepts, succeeded in Plan, Weidenweber, Pension interest Don by Self-Directed Individual Retirement Account, custodian, its through &

Piper Jafifay Hopwood, Incorporated, Respondents, v. BRANDT; William D. McDevitt;

Marc Cynthia Barrett, L. Personal Representative Estate of Peter Sr., C. Murphy, aka Peter Connacher Deceased., Appellants,

McDevitt & Company Investment

Corporation, Paragon, Inc.,

an Oregon corporation; American Insurance Company;

and John 1-6, Does Defendants. A74597) (A8612-07746; CA 918 P2d 430 Yugler Richard S. and motion. Nepom, G. Carter and David R.

Don contra. Presiding Judge, Deits, Before and De Muniz and Hasel- *2 Judges. ton,

DEITS, P. J. concurring.

Haselton, J.,

278

DEITS, P. J. Computer Concepts, App

In v. Brandt, Inc. Or 137 (1995), (1996), 572, 905 P2d 1177 rev 323 Or den 153 we part judgment holding affirmed the of the defendants repre- personal Brandt, McDevitt and Peter Sr.’s, (Murphy) plaintiffs Oregon liable sentative to under the chapter part Law. Securities ORS 59. reversed the of the We judgment holding Murphy Oregon liable under the Racket- (ORICO). Corrupt Organization eer Influenced and Act ORS to 166.715 ORS 166.735. Plaintiffs now for an award attorney appeal $212,002 of in fees on from the defendants jointly.1 rely 59.115(2),

Plaintiffs on ORS time which, at the appeal began during period proceeded, the and most of the it * ** may provided part “purchaser that the recover costs attorney appeal.”2 reasonable trial and fees at and on plaintiffs prevailed they Because on claim, the securities law attorney are entitled to fees statute under that for their attor- neys’ work on the securities law “common issues.”3 object

Brandt and McDevitt to the amount attor- ney objections general fees claimed. Their two forms: assume plaintiffs attorney We that the trial are informed court awarded fees of $340,000, approximately attributable to law their securities claims. settlement, Murphy Murphy Plaintiffs and have reached a withdrawn has objection attorney to the fee award. The ofthe his nature settlement does not affect authority obligation attorney against Murphy. or to award our 1995, 9, Oregon chapter 696, ORS 59.115 was amended Laws to section (2) attorney the reference to costs fees from subsection to add the delete followingsubsections: “(10) (11) section, Except provided may in subsection of this the court party prevailing award reasonable fees to the in an this action under section. “(11) may prevailing not award fees to a The court defendant (10) provisions of section if under the subsection of this the action under this pursuant as a section is maintained class action to ORCP 32.” applicable parties asserts that the amended version of the statute is None *4 opinion Our the statute in the of this the una- here. references to balance relate to version of it. mended 3 objected Murphy against him, contending prevailed an on to award that he appeal against plaintiffs they and that not be entitled to recover fees should against they him fact that Because based on the “won”on the securities law claim. Murphy objections, has withdrawn his that we do not reach issue.

279 patently outrage excessive, and that the amount is of cries parties and to the various that the time allotted contentions plaintiffs’ petition adequately segregated in is not issues suggests supporting “award of that an documents.4 Brandt appropriate.” $55,234 than is not more agree with outset, we note that we do not At the plaintiffs’ on that the allocation shown defendants filings inadequate sharp be a line can is or that and other issues as the time devoted to the different between drawn Wesley Ware, E. Smith v. would demand. Estate defendants of (1989). plaintiffs 769 P2d 773 We also note that 478, Or separate lengthy responding of to three had the task required by was and that the time of them defendants briefs normally necessarily greater thereby in an than would be so comparable complexity. appeal of an for the

Nevertheless, we do not consider award substantially 1,000 more than hours of time claimed appeal Taking account the time for this to be reasonable. into legitimately law can be attributed to the securities that and the common issues and our estimation ofthe com- claims plexity that an award issues, of those claims and we conclude severally by payable jointly $110,000 fees, in of appropriate. defendants, is damages

Plaintiffs also move for under ORS 19.160 against under ORAP 1.40 and ORCP 17 and for sanctions attorneys. parties and Those motions are denied. various Attorney plaintiffs the amount of fees awarded to per- payable Brandt, defendants McDevitt and $110,000, jointly representative Sr., ofEstate of Peter C. sonal severally; damages and sanctions denied. motions for concurring. HASELTON, J., separately emphasize concerns that I concur to some attorney-fee presentation petitions, not I have with the only many petitions that I review as a case, in this but also in emphasize department. that the I member of court’s motions case. counsel in this what followsis not a criticism of the able hourly high rate plaintiffs There is also a too an contention that claim attorneys. disagree their We with that contention. *5 general plea is, instead,

It a “crie pre- de coeur”—a for more enlightening proof cise and of “reasonableness” when we are attorney asked appeal. to award substantial fees on reviewing petitions appellate In under ORAJP13.10, we function much like a trial court, at respect least with to issues ofreasonableness. We receive evi- considering and, dence after the evidence, fix a fee. Just as expert opinions trial courts benefit from as to the reasonable- enlightened by fees, ness of so do we. Just as trial courts are particularized objections petitions, to fee so are we. appellate rigorously often,

Far too counsel who have only briefed the conclusory substantive merits of a case offer patently self-interested submissions on fees. perfectly acceptable That is understandable as a —indeed requested relatively cost/benefit matter —where the fees are disputed. significant low or reasonableness is not But where sought disputed, boilerplate fees are and reasonableness is self-defeating. submissions are parties’

In cases where the evidence of reasonable- solely opposing contending repre- ness consists counsels’ as own, sentations to their or their adversaries’, worth, the court is thrown back onto its own resources. That is not exactly “flying lacking blind”; submissions disinterested appellate practitioner experts, we do the best that we can, in principled Ultimately, as a fashion as we can. however, determining reasonableness, we are forced to make a call diversity, complexity, based on our assessment and dif- ficulty presented, “eyeballing” of the issues our of the work product, experience practicing attorneys and our own dated) (however and on the bench. Thus, our award in this case. An award that is the product judgment experience, of our best and collective but may arbitrary. one that seem The lesson: Where there is money disputed, “real” help at stake and reasonableness is us Everyone out. will benefit.