search the entire site.
or go to the recent opinions, or the chronological or subject indices.
Sever v. Alaska Pulp Corporation (10/25/96), 931 P 2d 354
NOTICE: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501; phone (907) 264-0607; fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
FLORIAN SEVER, )
) Supreme Court No. S-6620/6920
Appellant and )
Cross-Appellee, ) Superior Court No.
) 1SI-89-270 CI
) O P I N I O N
ALASKA PULP CORPORATION, DENNIS )
HUSE, GEORGE WOODBURY, JESS ) [No. 4420 - October 25, 1996]
CLINE, FRANK ROPPEL, GEORGE )
ISHIYAMA, and RALPH FENNER, )
Appellees and )
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Sitka,
Larry C. Zervos, Judge.
Appearances: James W. McGowan, Sitka, and
Terrance G. Reed, Reed & Hostage, Washington,
D.C., for Appellant and Cross-Appellee. James
F. Clark, Robertson, Monagle & Eastaugh,
Juneau; Richard A. Kramer, Steefel Levitt &
Weiss, San Francisco, California; and Wayne W.
Hansen and Paul D. Swanson, Lane Powell Spears
Lubersky, Seattle, Washington, for Appellees
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
Florian Sever brought suit for intentional infliction of
emotional distress, intentional interference with contractual
relations, and violations of public policy, against his employer,
Alaska Pulp Corporation, as well as individual officers and
employees of the corporation, who refused to reinstate him because
of his testimony before Congress. Summary judgment was granted
against him on the public policy claims, and a jury found against
him on the remaining claims. Sever now brings this appeal.
II. FACTS AND PROCEEDINGS
Florian Sever began working for Alaska Pulp Corporation
(APC) in August 1976. He worked as a millwright in APC's pulp mill
in Sitka. The individual defendants in this case were all officers
or employees of APC during the period relevant to this case.
After extensive labor negotiations, APC's union went on
strike in July 1986. The collective bargaining agreement between
the union and APC had expired on June 30, 1986. APC responded to
the strike by hiring permanent replacement workers and resuming
operations at the Sitka pulp mill. The strike continued until
April 1987, when the union was voted out in a decertification
election. During the strike Sever engaged in two activities which
apparently caused him to lose his job at APC. First, in August
1986, he signed a letter to the editor of the Sitka Sentinel, which
evidently was drafted by a group of union members. Although the
letter was never published, APC officials claimed that its racist
(anti-Japanese) tenor was grounds for his dismissal.
Additionally, on May 19, 1987, Sever testified before the
Subcommittee on Energy and the Environment of the Interior and
Insular Affairs Committee of the United States House of
Representatives. The subject matter of the hearing apparently
involved promotion of and appropriations for timber harvesting in
the Tongass National Forest, and Sever in particular testified
about APC's labor practices. It is clear that the substance of
Sever's testimony ran contrary to the interests of APC, and it is
equally clear that APC's management was made aware of Sever's
During the period of the strike, Sever began to work for
Mountain Aviation. After the strike at APC ended in April 1987, he
worked full-time for that company through the beginning of 1988.
After sending him a letter directing him to request
preferential reinstatement and receiving a timely response, APC
notified Sever in July 1987 that he would not be reinstated. The
two reasons cited for this action were Sever's employment with
Mountain Aviation and his "statements and activities destructive to
the Company and related logging operations." In January 1988,
Sever was fired from his job at Mountain Aviation. (EN1)
In August 1987 proceedings against APC regarding Sever's
employment were commenced before the National Labor Relations Board
(NLRB). Sever prevailed before the NLRB and was reinstated with
APC in October 1991. The NLRB was ultimately "persuaded by the
evidence in this case that Sever's congressional testimony of May
19, 1987, was a factor in [APC's] decision not to reinstate Sever,
along with his August 19, 1986 letter." The U.S. Court of Appeals
for the Ninth circuit affirmed the NLRB's decision.
In 1989, Sever filed this suit alleging generally that
the defendants "procured his termination from APC in breach of
Alaska public policy, inflicted emotional distress upon him,
tortiously interfered with his contractual rights, and violated
federal civil rights and racketeering laws." APC removed the state
case to federal court and moved for summary judgment. The U.S.
District Court dismissed Sever's federal claims and remanded the
state claims to the superior court, explicitly concluding that the
claims were not preempted by the National Labor Relations Act
(NLRA). The Ninth Circuit affirmed. Sever v. Alaska Pulp Corp.,
978 F.2d 1529 (9th Cir. 1992).
Thereafter, both parties moved for summary judgment in
the superior court. The superior court granted partial summary
judgment in favor of APC, dismissing Sever's public policy claims
on the grounds that Sever was not an employee of APC for state-law
purposes at the time APC decided not to reinstate him. The
superior court further ruled that Sever would be permitted to
present his claims alleging intentional infliction of emotional
distress, intentional interference with contractual relations, and
civil conspiracies to commit these torts, to a jury.
After Sever's motion for a change of venue was denied by
the superior court, trial was held in Sitka. The jury found in
favor of APC on all of the claims before it. Sever now brings this
A. Termination in Breach of Public Policy (EN2)
Florian Sever alleged that the defendants "procured his
termination from APC in breach of Alaska public policy." We
described the nature of the claim of discharge in violation of
public policy in ARCO Alaska v. Akers, 753 P.2d 1150 (Alaska 1988).
We observed that "[s]ome courts have held that termination of an
at-will employee constitutes a tort if the discharge violates a
fundamental principal [sic] of public policy." Id. at 1153. The
type of tort described in ARCO has been neither accepted nor
rejected by this court to date. Were it to be recognized, however,
this cause of action would necessarily be contingent upon the
existence of a contract.
This is because the duty owed in an employment context
springs only from the contractual relations between the parties.
If there is no contract, there is accordingly no duty; if there is
no duty, there can be no breach; and if there is no breach, there
can be no action in tort. In other words, despite the fact that
the action may ultimately sound in tort, the existence of a
contract is a vital prerequisite. As such, the superior court's
conclusion that "[s]ince, in this case, there was no contractual
relationship between the parties and Count 1 [the contract claim]
has been dismissed, Count 2 [the tort claim] is also dismissed,"is
Although the NLRB determined that APC did owe a certain
duty to Sever as of June 30, 1987 and that it breached that duty,
the superior court ultimately concluded that the relationship
between the parties was purely a creature of federal labor law and
that Sever's recovery for any action based on wrongful breach of an
employment contract was accordingly limited to whatever he could
secure before the NLRB.
After ruling to the contrary on two prior occasions, the
superior court decided that "although Sever was an employee for
federal labor law purposes while he was awaiting reinstatement, he
did not have any contractual relationship with APC and his
grievances against APC were appropriately resolved by the NLRB."
In this respect, the court found that
at the time that the union was decertified,
there were no express agreements between Sever
and APC about employment. The only agreement
between them had been the collective
bargaining agreement. But that agreement
expired or was nullified when the union was
decertified. Furthermore, at the time of
decertification and through the time that
Sever was denied placement on the recall list,
there was no other document . . . that
expressed or implied any terms and conditions
of employment. In addition, there was no
implied agreement created by the acts of
either party. In fact, as APC points out,
Sever was employed elsewhere after the
It now falls to us to determine whether or not the
superior court erred in concluding that no contractual relationship
existed, for state law purposes, between Sever and APC at the time
the decision not to re-hire him was made. For the reasons outlined
by the superior court in the passage quoted above, we are persuaded
that the superior court did not err in reaching this conclusion.
The record simply reveals no employment agreement,
express or implied, between APC and Sever after he went on strike.
(EN3) Once he went on strike, Sever was no longer under any
contractual obligation to perform services for APC. Further, since
Sever was under no contractual obligation to return to work when,
and if, the strike finally ended, APC was likewise under no
contractual obligation to re-hire him. APC's obligations with
respect to its striking workers derived exclusively from federal
Additionally, it is important to note that APC had
replaced the strikers with permanent replacement workers. In
United Food & Commercial Workers Union, Local No. 1496 v. D & A
Supermarkets, 688 P.2d 165 (Alaska 1984), we held that, for
purposes of disbursements pursuant to AS 23.05.140, striking
workers were to be considered terminated as of the date their
employer hired permanent replacement workers. In that case, we
observed that "[n]o provision in Alaska's labor statutes mandates
that the definitions contained in the NLRA be employed as
interpretive aids."Id. at 168.
In light of our conclusion that there was no contractual
relationship between Sever and APC on June 30, 1987, we find that
Sever's public policy claim was properly rejected by the superior
court. With the exception of federal labor law requirements, APC
was free to hire Sever or not hire him as it saw fit. Since APC
owed no duty to him in this regard, its decision about his
employment in 1987 was not actionable.
B. The August 19, 1986 Letter
Sever also claims that the superior court made two errors
with respect to the letter which he sent to the editor of the Sitka
1. Collateral Estoppel (EN4)
The Administrative Law Judge in the NLRB proceedings
concluded that the August 19 letter constituted protected strike
activity and was not acceptable grounds for dismissal. On appeal
when confronted with the allegation that the letter was disparaging
and racist, the court stated that "[t]he Board did not agree with
this characterization; neither do we." Sever argues that these
results should estop APC from "contending, as it did repeatedly at
trial, that the letter was racist."
The three elements of collateral estoppel are: (1)
collateral estoppel must be asserted against a party or one in
privity with a party to the first action; (2) the issue to be
precluded must be identical to that decided in the first action;
and (3) the issue in the first action must have been resolved by a
final judgment on the merits. United Cook Inlet Drift Ass'n, 895
P.2d at 950-51.
Although the first and third elements may have been met,
the second was not. We conclude that the issue sought to be
estopped in this case is not identical to the issue resolved in the
context of the NLRB proceeding. The Administrative Law Judge
concluded that the letter was protected strike activity. In
reaching this conclusion, he observed that "in such matters the
board permits a great degree of latitude." He then listed a series
of cases and concluded that "Sever's letter does not exceed the
permissible limits encompassed by the forgoing decisions."
The fact that Sever's letter fell within the ambit of
protected activity under the NLRA does not mean that it is not
racist for any purpose. The racist tone of a letter is not a
matter of absolutes. There is nothing inherently inconsistent in
concluding that Sever's letter was not racist for purposes of an
NLRA adjudication but was, nonetheless, racist on some other level.
The rulings regarding Sever's NLRA claims cannot be properly
interpreted to establish that there was absolutely nothing racist
about the letter.
Consequently, we conclude that the superior court did not
err in refusing to accord collateral estoppel effect to the finding
of the federal courts regarding the non-racist character of the
2. Admissibility of Evidence to Support the Assertions
Made in the Letter (EN5)
Sever also claims that since APC argued that the letter
was racist, he should have been permitted to introduce evidence
supporting the factual allegations of specific wrongdoing made
therein. Sever's theory of relevancy in this case was apparently
that proving the truth of the wrongful acts attributed to APC in
the letter would tend to establish that the letter was not racist.
The problem with this rationale is that although the letter would
not be libelous if it were true that APC had committed the acts
alleged in the letter, the letter might still be racist in
There is nothing racist about accusations of dubious
business practices. It is primarily the suggestion of a connection
between these dubious business practices and the fact that APC was
a Japanese controlled corporation that might make the letter
racist. As such, evidence tending to establish the veracity of the
accusations would not be particularly probative on the question of
whether or not the letter was racist.
On the other side of the equation, the evidence Sever
wanted to admit would have been potentially cumbersome, confusing,
and prejudicial. The evidence proffered apparently consisted of
findings concerning an antitrust suit that involved APC. Since the
facts of that suit are not directly relevant to the present case on
any theory, the superior court acted appropriately in deciding not
to open the issue at all. Assuming it was relevant at all, this
evidence was properly excludable under Alaska Rule of Evidence 403,
and, as such, we conclude that it was not an abuse of discretion
for the superior court to exclude it. (EN6)
C. Change of Venue (EN7)
Sever's next argument is that the superior court erred by
refusing to grant a change of venue. He claims that because the
pretrial publicity was so great, an impartial trial could not have
been had in Sitka. However, Sever's counsel acknowledged at trial
that there had been no pretrial publicity specifically regarding
this case. Further, Sever has not been able to establish any
actual prejudice among the jurors who served on this case.
Of course neither of these facts conclusively establishes
that a change of venue was not required. As Sever points out, our
holding in Mallott v. State, 608 P.2d 737, 748 (Alaska 1980)
effectively relieves a party, in certain situations, from the
burden of having to demonstrate actual prejudice. In Mallott, we
adopted the ABA proposal which stated:
A motion for change of venue or
continuance shall be granted when-
ever it is determined that, because
of the dissemination of potentially
prejudicial material, there is a
substantial likelihood that, in the
absence of such relief, a fair trial
by an impartial jury cannot be had
. . . . A showing of actual
prejudice shall not be required.
Mallott, 608 P.2d at 748 (quoting ABA
Standards Relating to the Administration of
Criminal Justice, Fair Trial and Free Press
sec. 8-3.3(c) (2d ed. Tentative Draft 1978)).
With respect to the fact that there appeared to be no publicity
regarding this particular case, Sever argues that since the law on
venue seems only to require a "probability"of prejudice, case-
specific publicity is not required. Nonetheless, the apparent lack
of both case-specific publicity and actual prejudice undermines
Sever's argument to a significant extent.
APC also argues that Sever's failure to exhaust his
peremptory challenges effectively waives any claim he might have
had regarding venue. We disagree. Although the relevance of
Sever's failure to exhaust his peremptory challenges is clear in
this context, it is also not dispositive. It is simply one factor
to be considered under a totality of the circumstances analysis.
See Jerrel v. State, 851 P.2d 1365, 1370 (Alaska App. 1993), cert.
denied, 510 U.S. 1100 (1994). (EN8)
Sever bases his argument primarily on a numerical
analysis of the questioned jurors. He claims that 42% of the
jurors whose questioning for cause was completed were ultimately
dismissed for cause. Even accepting the accuracy of these
calculations, which APC seems to dispute, Sever has failed to
demonstrate that the superior court's denial of his venue motion
was an abuse of discretion. (EN9) Sitka is a small community, and
it is inevitable that many potential jurors in a small community
will have connections of some sort with an employer of APC's
magnitude. This fact alone does not require that every trial to
which the employer is a party be moved outside the community.
It appears that the superior court took adequate
precautions to ensure that Sever would have a fair jury to hear his
case. In light of all the factors discussed above, we conclude
that the superior court did not abuse its discretion by denying
Sever's motion for a change of venue.
D. Bifurcation (EN10)
Sever's argument that the superior court erred in
bifurcating the punitive damages issue from the liability and
compensatory damages issues is without merit. Sever's only
substantive complaint appears to be that the bifurcation prevented
him from introducing evidence regarding the various individual
defendants' financial interests in APC's timber operations. In
ordering bifurcation, however, the superior court explicitly
allowed that in the first stage of the trial "[i]nformation about
the separate financial interests of the defendants in the Tongass
[would] be admitted, if relevant."
In light of this ruling, Sever's complaints about the
harm that was done to him by the decision to bifurcate are moot.
If Sever thought that relevant evidence regarding the defendants'
financial interests was excluded, he should have appealed from
particular evidentiary rulings of the superior court. In light of
the absence of any such appeal, there is no indication that the
superior court abused its discretion in ordering bifurcation of the
E. Jury Instructions (EN11)
Sever raises several objections to the superior court's
choice of jury instructions in this case. As a threshold matter,
APC alleges that Sever has essentially waived all of these issues
by failing to adequately object below. We consider the contested
1. Individual Liability for Corporate Actors
Sever proposed the following instruction: "The individual
defendants are responsible for acts which they perform or cause to
be performed on behalf of a corporation to the same extent as
though the conduct were performed on their own behalf." The
superior court declined to give the instruction, stating: "I think
it's a correct statement of the law, no question, but why does the
jury need to know about it?"
Although Sever may have adequately preserved his
objections on this issue below, the objection was, in any event,
without merit because there was no indication in any of the jury
instructions that individual defendants might be immune from suit
in any respect as a result of their status as corporate agents.
Jury instructions 19 and 23 set forth the elements of the
substantive tort claims in this case. These instructions clearly
direct the jury to assign liability to any of the defendants whose
actions met the substantive requirements of the torts. Since the
instructions as given would simply not authorize the jury to excuse
an individual defendant who met all of the elements, there was no
need to instruct them that the defendants could be individually
liable. Although, as the superior court observed, the proffered
instruction is an accurate statement of the law, it was not an
abuse of discretion for the superior court to refuse to give it.
2. Labor Negotiations
The superior court instructed the jury that "there was
nothing improper about the negotiations between labor and
management at APC in 1985 and 1986." It appears from the record
that APC proposed this instruction in its original form as a means
of establishing that a "slander clause"which essentially made
disloyalty a ground for dismissal was legal and proper. After an
extended argument, the court decided to modify the instruction so
that it made no specific reference to the clause.
Although APC did not seem to approve of the instruction,
Sever's counsel made no explicit objection to it as reformulated.
In fact, he seemed rather positively disposed towards it. Sever
now argues that although he approved of using the term
"negotiations"to avoid specific reference to the clause, his
earlier objections remained in force. Under these circumstances,
we conclude that Sever waived his complaints about this instruction
by his conduct at trial.
Even setting the waiver issue aside, however, Sever's
argument about why this instruction was erroneous is extremely
cursory. Although the instruction may not have been essential,
Sever certainly does not demonstrate that it was erroneous as a
matter of law. Giving the instruction was not an abuse of
The superior court also instructed the jury on the intra-
corporate conspiracy defense. After reviewing the entire final
colloquy regarding this instruction, we conclude that Sever's
counsel did not adequately object to the instructions as given.
(EN12) When considered in context, it appears that Sever's counsel
agreed that giving an intra-corporate conspiracy instruction would
be acceptable so long as the exceptions to the defense were clearly
and contemporaneously explained.
Even had he preserved his objection to these
instructions, however, it is not a particularly compelling one.
Sever does not make any real argument that the instructions given
were erroneous as such. Rather, he claims that they were
inappropriate in light of the facts of this case. Sever
essentially takes the position that since APC never introduced any
evidence tending to show that the individual defendants were acting
within the scope of their employment, there were no grounds for the
intra-corporate defense. Instruction 30, however, which set out
the exceptions to the defense, gave him all the support he needed
to make this argument to the jury.
Further, and perhaps most importantly, the fact that the
jury did not find any of the individual defendants liable makes it
virtually impossible for error in the conspiracy instructions to
have been prejudicial. In light of the three factors discussed
above, we conclude that there was no error with respect to the
intra-corporate conspiracy defense jury instructions.
F. Costs and Fees (EN13)
The superior court awarded APC $34,075.02 in costs and
$58,560.39 in attorney's fees. Sever appeals from the award of
$34,075.02 in costs and APC cross-appeals from the court's award to
it of $58,560.39 in attorney's fees. APC argues that the
attorney's fee award was inadequate, and Sever claims that the
costs award was excessive. We consider these points in order.
APC objects that the superior court's downward departure
from the 30 percent award that is authorized by Civil Rule 82(b)(2)
(EN14) was an abuse of discretion. We disagree. A combination of
the very large number of attorneys defending this case, the fact
that APC had not treated Sever fairly in the past, and the fact
that a large fee award might have a deterrent effect on future
employer/employee litigation led the superior court to conclude
that the fee award should not exceed 7.5% of the actual fees.
These justifications were valid and appropriate under Civil Rule
81(b)(3)(D), (I) and (K) (EN15) and, as such, we hold that the
superior court did not abuse its discretion by departing from the
fee award that would otherwise have been authorized by the rules.
Sever claims that the superior court ordered him to pay
too much in costs. He claims that the cost award is excessive
insofar as it includes $18,323.01 for computerized research. Civil
Rule 79(b), however, explicitly includes "costs paid by the
prevailing party's attorney for computerized legal research."
Sever has failed to demonstrate that this research was not
reasonably necessary to defend against the suit. Consequently, we
conclude that the superior court did not abuse its discretion in
making this particular cost award.
The superior court's judgment and rulings in this case
1. Sever's termination from Mountain Aviation forms the basis for
his intentional interference with contractual relations claim in
that he alleges that APC-related parties secured his termination
from that job. This particular count was resolved against Sever by
2. The superior court's summary judgment ruling with respect to
Sever's employment rights is subject to de novo review by this
court. All reasonable inferences must be drawn in favor of the
non-moving party. Pride v. Harris, 882 P.2d 381, 384 (Alaska
3. Sever observes that APC characterized him and other similarly
situated persons as employees on numerous occasions during the
strike and that the decision not to re-hire him was referred to as
a decision to "terminate." He argues that this is clear evidence
that an employment contract existed. The nomenclature chosen by
APC, however, which would appear to have been driven largely by
political and administrative concerns, is not dispositive and does
little to change the underlying nature of the relationship. This
language alone, in the abstract, is sufficient neither to establish
a contractual relationship nor to estop APC from denying one.
4. The applicability of collateral estoppel to a particular set
of facts is a legal question over which we exercise independent
review. State v. United Cook Inlet Drift Ass'n, 895 P.2d 947, 950
5. A trial court's evidentiary rulings are reviewed under the
abuse of discretion standard. Municipality of Anchorage v. Frank
Coluccio Constr. Co., 826 P.2d 316, 324 n.8 (Alaska 1992).
6. Alaska Rule of Evidence 403 provides:
Although relevant, evidence may be
excluded if its probative value is outweighed
by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by
considerations of undue delay, waste of time,
or needless presentation of cumulative
7. A trial court's decision regarding a motion for change of
venue is reviewed only for abuse of discretion. Oxereok v. State,
611 P.2d 913, 919 (Alaska 1980).
8. The fact that Sever declined to use his last peremptory
challenge, however, is sufficient to establish that any error that
might have been committed in refusing to excuse Juror Frank
Richards for cause was completely harmless.
9. In Jerrel, 851 P.2d at 1369, the court of appeals said:
Although relevant, "naked statistics"
alone cannot determine the existence of a
substantial likelihood of unrevealed jury
bias; the issue is one for the sound
discretion of the trial court. Id. at 938-39.
Relevant factors for the court to consider in
exercising its discretion include the recency
of the publicity, its potential for inflaming
jurors, and the nature of the jury panel's
familiarity with the trial participants.
[Newcomb v. State, 800 P.2d 935, 939 (Alaska
App. 1990).] On appeal, this court must
independently evaluate the circumstances
surrounding the denial of a motion to change
venue, but we may reverse the trial court's
decision only for an abuse of discretion. Id.
10. Bifurcation of a trial is generally within the discretion of
a trial court, and a ruling on this issue will not be reversed
absent an abuse of that discretion. See A.M. v. State, 891 P.2d
815, 828 (Alaska 1995).
11. The trial court's jury instructions generally involve
questions of law which are subject to the independent judgment
standard of review. Errors in jury instructions will not be
grounds for reversal unless they caused prejudice. Beck v. State,
Dep't of Transp. & Pub. Facilities, 837 P.2d 105, 114 (Alaska
12. Civil Rule 51(a) provides:
Requested Instructions - Objections. At
the close of the evidence or at such earlier
time as the court reasonably directs, any
party may file written requests that the court
give the jury specific instructions. The
court shall inform counsel of the final form
of jury instructions prior to their arguments
to the jury. Following the close of the
evidence, before or after the arguments of
counsel, the court shall instruct the jury.
Additionally, the court may give the jury such
instructions as it deems necessary at any
stage of the trial. No party may assign as
error the giving or the failure to give an
instruction unless the party objects thereto
before the jury retires to consider its
verdict, stating distinctly the matter to
which the party objects and the grounds of the
objection. Opportunity must be given to make
the objection out of the hearing of the jury,
by excusing the jury or hearing objections in
13. A trial court's fee and cost awards will not be disturbed on
appeal absent an abuse of discretion. Kaps Transp. v. Henry, 572
P.2d 72, 77 (Alaska 1977); Palfy v. Rice, 473 P.2d 606, 613-14
14. Civil Rule 82(b)(2) provides:
In cases in which the prevailing party
recovers no money judgment, the court shall
award the prevailing party in a case which
goes to trial 30 percent of the prevailing
party's actual reasonable attorney's fees
which were necessarily incurred, and shall
award the prevailing party in a case resolved
without trial 20 percent of its actual
attorney's fees which were necessarily
incurred. The actual fees shall include fees
for legal work customarily performed by an
attorney but which was delegated to and
performed by an investigator, paralegal or law
15. These subsections authorize a court, in departing from the
presumptive amount, to consider "the reasonableness of the number
of attorneys used . . ., the extent to which a given fee award may
be so onerous to the non-prevailing party that it would deter
similarly situated litigants from the voluntary use of the courts
. . . [and] other equitable factors deemed relevant."