
    Edwin GOSSNER and Dairy Distributors, Inc., a Utah corporation, Plaintiffs, v. CACHE VALLEY DAIRY ASSOCIATION, a Utah corporation, et al., Defendant.
    No. NC 50-67.
    United States District Court D. Utah, N. D.
    Jan. 9, 1970.
    Clifford L. Ashton, and Richard W. Giauque, of VanCott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, for plaintiffs.
    Donald B. Holbrook, and W. Robert Wright, of Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah, for defendant, Cache Valley Dairy Assn.
   MEMORANDUM DECISION

CHRISTENSEN, District Judge.

This exceedingly complicated action, the principal issues of which were submitted to and resolved by a jury on special interrogatories, involved Sections 1 and 2 of the Sherman Act, The Robinson Patman Act, the “Cooperative Exemption”, negligence, fraud, wrongful discharge of an “independent contractor-manager-employee”, fiduciary accounting, contract obligations, and other problems in cheese manufacturing and the processing and distribution of other dairy products. A judgment for roughly half a million dollars has been entered against the defendant Cache Valley Dairy Association.

Subject to appeal, all post-trial problems have now been resolved as far as this court is concerned except that relating to attorneys’ fees. By stipulation the fixing of any attorneys’ fees was left to the trial judge.

The jury in effect returned a verdict of $30,000 on plaintiffs’ Robinson-Pat-man Act claim, which has been trebled as provided by statute. The remainder of the judgment, after offsets in accordance with the special verdict of the jury, relates to non-antitrust claims.

I have determined that $42,500 is a reasonable attorneys' fee for the services of plaintiffs’ attorneys assignable to the antitrust component of the judgment. While this determination was complicated and many factors were considered, further discussion here on the subject would not be warranted.

The related problem which seems worthy of note was created by the established agreement between plaintiff and its counsel that the latter should receive a contingent fee of one-third of any recovery to be accomplished by the litigation.

The defendant contends that since one-third of the $90,000 Robinson-Pat-man Act judgment would be $30,000, attorneys’ fees should be limited to this amount. I agree that the provisions of the Act concerning attorneys’ fees do not contemplate an award to an antitrust litigant beyond treble the damages it actually sustained plus the attorneys’ fees for which it is liable. While much may be said against a defendant’s benefiting from an improvident agreement between a plaintiff and its counsel, I do not believe the provision for attorneys’ fees justifies a windfall for the litigant beyond the trebling of its actual damages. Here we are concerned with the question of whether a litigant is limited to an agreed fee even though it is less than one that would otherwise be reasonable. The cases cited by plaintiff involve rather the inability of litigants to recover more than a reasonable fee because of an agreement to pay counsel more.

On the other hand, the case relied upon by defendant to demonstrate that contingent fee agreements should be accepted as a limiting factor is inapposite since there the agreement was for a fee equal to one-third of any recovery and in addition any amount awarded by the court as a reasonable attorneys’ fee; held that the fee arrangement was so antipathetic to the objective and spirit of the Clayton Act provisions as to negate the propriety of any award. No case has been cited, nor has the court discovered one which squarely holds that a contingent fee arrangement may restrict the plaintiff to the recovery of less than a reasonable fee; but I believe this must be the law; the statute authorizes an attorney’s fee, not a litigant’s fee.

Yet, the agreement concerning a contingent fee avails the defendant nothing here for at best it would be only a limiting factor and not the measure of a reasonable fee. I have already determined that a reasonable fee is $42,500. In the absence of the contingent fee arrangement the plaintiff would be entitled to the treble damages of $90,000 plus the reasonable attorneys’ fee of $42,500, or a total of $132,500. A contingent fee of one-third of this amount would be $44,166.66. Plaintiff cannot recover this full amount since it would exceed the amount I have determined as reasonable. But I agree with plaintiff that it can recover the $42,500 fee, all of which, and more, it is committed to pay to its attorney. 
      
      . 15 U.S.C.A. § 13 (1963).
     
      
      . 15 U.S.C.A. § 15 (1963).
     
      
      . 15 U.S.C.A. § 15 (1963) provides:
      Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.
     
      
      . Milwaukee Towne Corp. v. Loew’s, Inc., 190 F.2d 561, 570 (7th Cir. 1951); Webster Motor Car Co. v. Packard Motor Car Co., 166 F.Supp. 865 (D.D.C.1955). See also Bowl America Inc. v. Fair Lanes, Inc., 299 F.Supp. 1080, 1099n. (D.My.1969).
     
      
      . Farmington Dowel Products Co. v. Forster Mfg. Co., 297 F.Supp. 924 (D.C. Maine 1969); Noerr Motor Freight, Inc. v. Eastern Railroad Pres. Conf., 166 F. Supp. 163 (D.C.Pa.1958).
     
      
      . Farmington Dowel Products Co. v. Forster Mfg. Co., 297 F.Supp. 924 (D. Maine 1969), supra; Noerr Motor Freight, Inc. v. Eastern Railroad Pres. Conf., 166 F.Supp. 163 (E.D.Pa.1958), supra.
     