Awarding Attorneys’ Fees

and Managing Fee Litigation

Second Edition

Alan Hirsch and Diane Sheehey

Federal Judicial Center

2005

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct

education programs for judicial branch employees. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.
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Contents

Foreword vii

Introduction 1

I. Fee-Shifting Statutes 5

A. Determining Whether a Fee Award Is In Order 5

1. Was a timely fee request made? 6

2. Is there a prevailing party? 6

a. Prevailing plaintiffs 6

b. Prevailing defendants 11

c. Prevailing intervenors 12

d. Prevailing pro se litigants 13

e. Amici curiae 14

3. Is there standing to bring a claim for fees? 14

4. Is there a liable party? 16

5. Are there special circumstances militating against an award? 16

6. Is there a fee waiver? 18

B. Calculating the Amount of the Award 20

1. What constitute fees? 20

2. What is the method of calculating the amount of fees? 21

a. Reasonable rate 23

b. Hours reasonably expended 26

3. What documentation is required? 29

4. Should the lodestar be adjusted? 32

a. Downward adjustments 32

b. Upward adjustments 43
iv

5. Are there special considerations for awards to defendants? 48

6. What are the procedural aspects of fee disputes? 48

a. Case law 48

b. Rule 54 52

C. Issues on Appeal 53

1. Timing of appeal 53

2. Scope of review 56

3. May the court of appeals calculate the award? 56

II. Common Fund and Substantial Benefit 59

A. Common Fund 59

B. Class Actions 61

1. Determining whether an award is in order 61

a. Is there a fund? 61

b. Did the lawsuit bring about or enhance the fund, or create

access to it? 62

c. Are there beneficiaries? 64

d. Can fees be shifted to the beneficiaries with precision? 66

e. Does the court have “control” of the fund? 68

f. Does some other circumstance militate against an award?

68

2. Calculating the amount of an award 72

a. What method should be used? 72

b. Lodestar in common fund cases 75

c. Choosing a percentage 76

d. Should the fee be adjusted? 77

e. The effect of a private fee agreement 78

f. May plaintiffs be compensated for personal expenses? 79

g. Procedures 80

3. Issues on appeal 82

a. Timing 82

b. Scope of review 82

c. May the court of appeals calculate an award itself? 83

C. Substantial Benefit 83

1. Determining whether an award is in order 85

a. Did the suit confer a substantial benefit? 85
v

b. Do the defendant and the beneficiaries share an identity of

interests? 88

c. Has the plaintiff benefited disproportionately? 91

d. Does the court have jurisdiction to make an award? 92

e. Is an award contrary to congressional intent? 94

2. Method for determining amount of award 94

3. Issues on appeal 95

D. Private Securities Litigation Reform Act of 1995 95

III. The Obligation of Bankruptcy Courts to Examine Fee Petitions 101

IV. Techniques for Managing Attorneys’ Fees 105

A. Facilitating Review of Fee Applications 105

1. Sampling 106

2. Requiring a pretrial estimate of fees 107

3. Computerized billing programs 107

4. Requiring attorneys to categorize records 107

5. Having defendants submit records 108

B. Selection of Lead Counsel by Competitive Bidding 109

C. Eliminating or Streamlining Hearings 111

1. Tentative ruling 111

2. Written declaration in lieu of testimony 112

3. Informal conference 112

D. General Techniques 112

1. Setting a framework early in the case 113

2. Local rules, guidelines, and written opinions 113

3. Delegation 114

a. Law clerks, assistants, and deputies 114

b. Magistrate judges 114

c. Special masters and alternative dispute resolution 115

d. Experts 115

e. Lead counsel and class actions 115
vi

E. Conclusion 116

Appendix A. Local Rules of the U.S. District Court for the District of

Maryland, Appendix B (2004) 117

Appendix B. Guidelines for Compensation and Expense Reimbursement of

Professionals and Trustees, U.S. Bankruptcy Court for the Northern

District of California 123

Appendix C. Notice of Tentative Ruling on Fees, U.S. Bankruptcy Court for

the Central District of California 135

Appendix D. Order Regarding Chapter 13 Attorney’s Fees, U.S. Bankruptcy

Court for the Southern District of Texas 137

Table of Cases 145
vii

Foreword

Alan Hirsch and Diane Sheehey prepared the first edition of this

monograph. Diane Sheehey updated this edition with assistance from

Kris Markarian and Laural Hooper of the Federal Judicial Center.

The Center would like to thank Judge James A. Parker (District of

New Mexico) for reviewing this monograph.
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1

Introduction

In the federal courts, attorneys’ fees litigation arises in several contexts. Almost 200 civil statutes authorize fee awards to prevailing

plaintiffs and, in some cases, prevailing defendants. Bankruptcy courts

must approve requests for fees for professional services, including attorneys’ fees, in every Chapter 11 case and in other cases as well. In

addition, common law permits courts to award fees when a suit results in a common fund or substantial benefit to a class of plaintiffs or

non-parties. Judges also may award fees against parties or attorneys as

a sanction for misconduct, under the court’s inherent authority, or

pursuant to several provisions in the Federal Rules of Civil Procedure.

Finally, the 1964 Criminal Justice Act authorizes compensation to

court-appointed attorneys in criminal cases. In the aggregate, attorneys’ fees matters constitute a significant part of a federal judge’s

workload.

Fee awards were not always so prevalent in federal litigation. Under the traditional “American Rule,” each party assumed its own legal

costs.1 In the nineteenth century, the Supreme Court carved out the

common fund exception.2 Throughout the twentieth century, Congress and the courts created broader exceptions. Congress enacted

statutes providing for the prevailing party to recover attorneys’ fees

from its opponent in particular kinds of actions.3 Invoking its inher1. For the history of this rule, and occasional minor departures from it, see Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247–57 (1975).

2. See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885); Trustees v.

Greenough, 105 U.S. 527 (1881).

3. For earlier statutes, see Amendments to Freedom of Information Act, Pub. L.

No. 93-502,§1(b)(2), 88 Stat. 1561 (amending 5 U.S.C. §552(a)); Packers & Stockyards Act, 42 Stat. 166, 7 U.S.C. §210(f); Perishable Agricultural Commodities Act, 46

Stat. 535, 7 U.S.C. §499g(b); Bankruptcy Act, 11 U.S.C. §§104(a)(1), 641–644;
2 Awarding Attorneys’ Fees and Managing Fee Litigation

ent equity power, the Supreme Court held that attorneys’ fees may be

assessed against parties who disobey a court order or act in bad faith.4

Most significantly, in the early 1970s a number of courts ordered defendants to pay the attorneys’ fees of victorious plaintiffs whose lawsuits advanced important public policies, such as environmental protection.5 But in the 1975 case of Alyeska Pipeline Service Co. v. Wilderness Society,6 the Supreme Court rejected the “private attorney

general” doctrine, holding that courts may not shift a prevailing

party’s fees to a losing party absent specific statutory authorization.

Clayton Act, §4, 38 Stat. 731, 15 U.S.C. §15; Unfair Competition Act, 39 Stat. 798, 15

U.S.C. §72; Securities Act of 1933, 48 Stat. 82, as amended, 48 Stat. 907, 15 U.S.C.

§77k(e); Trust Indenture Act, 53 Stat. 1176, 15 U.S.C. §77www(a); Securities Exchange Act of 1934, 84 Stat. 890, 897, as amended, 15 U.S.C. §§78i(e), 78r(a); Truth

in Lending Act, 82 Stat. 157, 15 U.S.C. §1640(a); Motor Vehicle Information & Cost

Savings Act, Tit. IV, §409(a)(2), 86 Stat. 963, 15 U.S.C. §1989(a)(2) (1970 ed., Supp.

II); 17 U.S.C. §116 (copyrights); Organized Crime Control Act of 1970, 18 U.S.C.

§1964(c); Education Amendments of 1972, §718, 86 Stat. 369, 20 U.S.C. §1617

(1970 ed., Supp. II); Norris-LaGuardia Act, §7(e), 47 Stat. 71, 29 U.S.C. §107(e); Fair

Labor Standards Act, §16(b), 52 Stat. 1069, as amended, 29 U.S.C. §216(b); Longshoremen’s & Harbor Workers’ Compensation Act, §28, 44 Stat. 1438, as amended,

86 Stat. 1259, 33 U.S.C. §928 (1970 ed., Supp. II); Federal Water Pollution Control

Act, §505(d), as added, 86 Stat. 888, 33 U.S.C. §1365(d) (1970 ed., Supp. II); Marine

Protection, Research & Sanctuaries Act of 1972, §105(g)(4), 33 U.S.C. §1415(g)(4)

(1970 ed., Supp. II); 35 U.S.C. §285 (patent infringement); Servicemen’s Readjustment Act, 38 U.S.C. §1822(b); Clean Air Act, §304(d), as added, 84 Stat. 1706, 42

U.S.C. §1857h-2(d); Civil Rights Act of 1964, Tit. II, §204(b), 78 Stat. 244, 42 U.S.C.

§2000a-3(b), and Tit. VII, §706(k), 78 Stat. 261, 42 U.S.C. §2000e-5(k); Fair Housing Act of 1968, §812(c), 82 Stat. 88, 42 U.S.C. §3612(c); Noise Control Act of 1972,

§12(d), 86 Stat. 1244, 42 U.S.C. §4911(d) (1970 ed., Supp. II); Railway Labor Act,

§3, 44 Stat. 578, as amended, 48 Stat. 1192, as amended, 45 U.S.C. §153(p); Merchant Marine Act of 1936, §810, 49 Stat. 2015, 46 U.S.C. §1227; Communications

Act of 1934, §206, 48 Stat. 1072, 47 U.S.C. §206; Interstate Commerce Act, §§8,

16(2), 24 Stat. 382, 384, 49 U.S.C. §§8, 16(2), and 308(b), as added, 54 Stat. 940, as

amended, 49 U.S.C. §908(b); Fed. R. Civ. P. 37(a) and (c).

4. See Vaughan v. Atkinson, 369 U.S. 527 (1962) (bad faith); Toledo Scale Co. v.

Computing Scale Co., 261 U.S. 399, 426–28 (1923) (order disobeyed).

5. See, e.g., Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Natural

Res. Def. Council v. EPA, 484 F.2d 1331 (1st Cir. 1973); Donahue v. Staunton, 471

F.2d 475 (7th Cir. 1972), cert. denied, 410 U.S. 955 (1973); Cooper v. Allen, 467 F.2d

836 (5th Cir. 1972).

6. 421 U.S. 240 (1975).
Introduction 3

(In dicta, the Court approved continued use of fee awards in common

fund and substantial benefit cases and as a sanction for misconduct.7)

At the time of Alyeska, there were several dozen fee-shifting statutes. In its wake, such statutes proliferated, in particular, the Civil

Rights Attorney’s Fees Awards Act of 19768 and scores of less prominent fee-shifting statutes. Applying these statutes is often difficult. In

many cases, it is unclear whether a party is entitled to a fee award, and

even when an award is clearly in order, calculating the amount of the

award can be complex and time-consuming. By 1983 disputes over

attorneys’ fees were consuming substantial judicial resources. In the

seminal case of Hensley v. Eckerhart,9 the Supreme Court warned

lower courts not to let fee requests spawn “a second major litigation.”10 However, neither the Court’s warning nor its attempted clarification of the law in Hensley and subsequent decisions has significantly reduced the burden or complexity of fee awards.

This monograph addresses both statutory fee-shifting awards and

common fund and substantial benefit awards. Part 1 analyzes attorneys’ fees awards under fee-shifting statutes and addresses the selection of class counsel under the Private Securities Litigation Reform

Act. Part 2 discusses fee awards based on the common fund doctrine

and its offspring, the substantial benefit doctrine. Part 3 considers an

attorneys’ fees issue of special significance to bankruptcy courts—the

propriety of sua sponte review of fee petitions.11 Part 4 presents techniques for managing attorneys’ fees.

The monograph does not deal with compensation under the

Criminal Justice Act or the Antiterrorism and Effective Death Penalty

Act of 1996, or fees as a sanction for misconduct, which raise separate

issues that warrant discrete treatment. Although the monograph does

not address these areas specifically, parts of the analysis concerning

7. Id. at 259.

8. 42 U.S.C. §1988 (2000).

9. 461 U.S. 424 (1983).

10. Id. at 437.

11. Fee issues peculiar to bankruptcy courts are, by and large, beyond the scope

of this monograph. However, in Parts 1 and 2, most of the analysis concerning the

amount of awards is applicable to bankruptcy court fee awards.
4 Awarding Attorneys’ Fees and Managing Fee Litigation

the amount of a fee award will apply to fees awarded as sanctions and

under the Criminal Justice Act.
5

I

Fee-Shifting Statutes

Attorneys’ fees disputes under fee-shifting statutes occur in innumerable circumstances and raise many questions. Supreme Court

and lower appellate court decisions establish some guiding principles

for trial courts. Although the Supreme Court decisions arise in the

context of a particular statute, they generally rely on principles applicable to most fee-shifting statutes.12 Drawing on case law, this part of

the monograph addresses the questions a court must ask when analyzing a fee request.

A. Determining Whether a Fee Award Is In Order

The threshold question in an attorneys’ fees case is whether any award

is in order. Such a determination entails several discrete inquiries:

• Was a timely fee request made?

• Is there a prevailing party?

• Is there standing to bring a claim for fees?

• Is there a liable party?

• Are there special circumstances militating against an award?

• Is there a fee waiver?

12. See Hensley, 461 U.S. at 433 n.7 (“The standards set forth in this opinion are

generally applicable in all cases in which Congress has authorized an award of fees to a

‘prevailing party.’”). With a few exceptions, the nuances unique to particular statutes

(e.g., the Equal Access to Justice Act’s prohibition of fees if the government’s position

was “substantially justified”) are beyond the scope of this monograph.
6 Awarding Attorneys’ Fees and Managing Fee Litigation

1. Was a timely fee request made?

The Supreme Court has held that a motion for fees is untimely only if

it causes “unfair surprise or prejudice” or violates a local rule.13 The

Court rejected the contention that a motion for fees is a motion to

amend or alter a judgment, to which the ten-day requirement of Federal Rule of Civil Procedure 59(e) applies.14

Federal Rule of Civil Procedure 54(d) requires motions for attorneys’ fees to be filed no later than fourteen days after entry of judgment, absent a “statute or order of the court.”15 Two circuits have

held that local rules prescribing time periods for filing fees motions

are court orders that preempt Rule 54’s fourteen-day period. 16 Yet

another circuit has held that Rule 54(d)(2)(B) motions are timely if

filed no later than fourteen days after resolution of Rule 50(b), 52(b),

or 59 motions.17

2. Is there a prevailing party?

a. Prevailing plaintiffs

The Supreme Court has said that to be eligible for a fee award, a

plaintiff must prevail on “any significant claim affording some of the

relief sought.”18 The relief cannot be merely declaratory or procedural; it must reach the underlying merits of the claim and “affect[ ]

13. White v. New Hampshire, 455 U.S. 445, 454 (1982).

14. In a subsequent case, the Court held that a judgment on the merits is final

even if the amount of fees has not been determined. Budinich v. Becton Dickinson &

Co., 486 U.S. 196 (1988). Therefore, the thirty-day period for filing an appeal begins

once the judgment is entered, even if an order on the fee request has not been entered.

See infra notes 282–83 and accompanying text for further discussion of when Rule

59(e) motions toll the thirty-day time limit for appeals.

15. Fed. R. Civ. P. 54(d)(2)(B).

16. See Eastwood v. Nat’l Enquirer, 123 F.3d 1249 (9th Cir. 1997); Johnson v.

Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 729 (7th Cir. 1995) (local rule

granting a party ninety days from judgment to file a fee petition was an “order of the

court”).

17. Weyant v. Okst, 198 F.3d 311, 315 (2d Cir. 1999).

18. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791

(1989) (rejecting the law in some circuits that plaintiff must prevail on the “central

issue” and achieve “the primary relief sought”).
Fee-Shifting Statutes 7

the behavior of the defendant towards the plaintiff.”19 Thus, for example, the Court found that the plaintiff was not a prevailing party

where his success consisted of an appellate court decision reversing a

directed verdict for the defendant and ordering a new trial (and making a favorable ruling for the plaintiff in requiring additional discovery). The Court stated: “The respondents have of course not prevailed

on the merits of any of their [underlying] claims.”20 In another illustrative case, the Eighth Circuit rejected a fee request where the plaintiff’s victory consisted solely of the district court’s finding that it had

jurisdiction to hear the case.21

At the same time, the Supreme Court has held that an award of

nominal damages confers prevailing party status on the plaintiff.22 An

award of nominal damages “modifies the defendant’s behavior for the

plaintiff’s benefit by forcing the defendant to pay an amount of

money he otherwise would not pay.”23

Consensus in the lower courts has emerged with respect to the

“prevailing party” question in certain recurring situations. The courts

agree that when a party’s favorable judgment is vacated or reversed on

appeal, the party ceases to be a prevailing party and a prior fee award

19. Hewitt v. Helms, 482 U.S. 755, 761 (1987). In Hewitt, an appellate court held

that due process was denied an inmate sentenced by a prison committee to disciplinary confinement. On remand, the district court found the defendant immune from

damage liability. The appellate court had also given essentially declaratory relief, stating that the defendant’s disciplinary proceedings were improper and would have to be

changed. But because the plaintiff had been released on parole, and thus did not

benefit from this declaration, the Supreme Court held that he was not a prevailing

party.

Rhodes v. Stewart, 488 U.S. 1 (1988), is similar, although, unlike the court in

Hewitt, the lower court granted formal declaratory relief. By the time it was granted,

however, one plaintiff had died and the other was no longer in custody. The Court

held that there was no prevailing plaintiff: “A declaratory judgment, in this respect, is

no different from any other judgment. It will constitute relief...if, and only if, it

affects the behavior of the defendant towards the plaintiff.” Rhodes, 488 U.S. at 4.

20. Hanrahan v. Hampton, 446 U.S. 754, 768 (1980).

21. Huey v. Sullivan, 971 F.2d 1362, 1367 (8th Cir. 1992).

22. Farrar v. Hobby, 506 U.S. 103 (1992).

23. Id. at 113.
8 Awarding Attorneys’ Fees and Managing Fee Litigation

must fall.24 The same is generally true when the plaintiff is granted

injunctive relief based on a likelihood of prevailing on the merits but

ultimately loses on the merits.25 However, all circuits that have considered the question have held that the plaintiff is a prevailing party

when it obtains a preliminary injunction based on its probability of

success and the case becomes moot before a final judgment.26 But if

injunctive relief is granted only to preserve the status quo so that any

eventual relief would not come too late, and the court makes no assessment of the merits of the case, the plaintiff is not a prevailing party

if the case becomes moot.27

The Supreme Court has held that favorable settlements enforced

through court-ordered consent decrees qualify plaintiffs for fee

awards.28 Lower courts had developed this doctrine, holding that the

plaintiff is a prevailing party when its lawsuit achieved its results by

causing the defendant to voluntarily change its conduct. The Supreme

Court, however, rejected this “catalyst theory” as a basis for awarding

attorneys’ fees under two statutes granting fees to the “prevailing

party” in Buckhannon Board and Care Home, Inc. v. West Virginia De24. See, e.g., Dexter v. Kirschner, 984 F.2d 979, 987 (9th Cir. 1992); Ladnier v.

Murray, 769 F.2d 195, 200 (4th Cir. 1985); Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.

1982).

25. Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), cert. denied, 481 U.S. 1049

(1987); Ward v. County of San Diego, 791 F.2d 1329, 1334 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987); Doe v. Busbee, 684 F.2d 1375, 1380 (11th Cir. 1982);

Smith v. Univ. of N.C., 632 F.2d 316 (4th Cir. 1980). But cf. Frazier v. Bd. of Trustees

of Northwest Miss. Reg’l Med. Ctr., 765 F.2d 1278 (5th Cir. 1985) (at least where

eventual loss resulted from change in the law after initial injunction was granted,

plaintiff was entitled to fees), cert. denied, 476 U.S. 1142 (1986).

26. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512 (10th Cir. 1990); Webster v.

Sowders, 846 F.2d 1032, 1036 (6th Cir. 1988); Taylor v. Fort Lauderdale, 810 F.2d

1551, 1557–58 (11th Cir. 1987); Grano v. Barry, 783 F.2d 1104, 1109 (D.C. Cir. 1986);

Bishop v. Comm. on Prof’l Ethics, 686 F.2d 1278, 1290–91 (8th Cir. 1982); Coalition

for Basic Human Needs v. King, 691 F.2d 597, 600 (1st Cir. 1982); Williams v. Alioto,

625 F.2d 845, 847–48 (9th Cir. 1980), cert. denied, 450 U.S. 1012 (1981); Doe v. Marshall, 622 F.2d 118, 119–20 (5th Cir. 1980), cert. denied, 451 U.S. 993 (1981).

27. Libby v. Ill. High Sch. Ass’n, 921 F.2d 96 (7th Cir. 1990).

28. Maher v. Gagne, 448 U.S. 122 (1980). See also Sierra Club v. EPA, 322 F.3d

718 (D.C. Cir. 2003) (holding that catalyst theory is a valid basis for awarding attorneys’ fees under Clean Air Act), cert. denied, 540 U.S. 1104 (2004).
Fee-Shifting Statutes 9

partment of Health and Human Resources.

29 The Court said that the

term “prevailing party” is a legal term of art30 and held that it does not

“include[ ] a party that has failed to secure a judgment on the merits

or a court-ordered consent decree.”31 Furthermore, the Court stated

that “[a] defendant’s voluntary change in conduct . . . lacks the necessary judicial imprimatur on the change.”32

Courts of appeals have extended rejection of the catalyst theory to

other fee-shifting statutes that award fees to the prevailing party.33

Note, however, that the Tenth, Eleventh, and D.C. Circuits declined to

extend the Buckhannon rationales for rejecting the catalyst theory to

fee-shifting statutes that award fees “whenever . . . appropriate” as opposed to fee-shifting statutes that award fees to the prevailing party.34

Under the civil rights fee-shifting statute,35 a plaintiff who prevails

on a nonconstitutional statutory claim brought pursuant to section

1983 is eligible for attorneys’ fees.36

Plaintiffs successful before administrative agencies may be entitled

to fees under a fee-shifting statute that refers to an “action or proceeding,” provided (1)the plaintiff filed a claim in federal court,

(2)the administrative proceeding was mandatory, and (3)the issue in

the administrative proceeding was related to the claim that the plaintiff advanced in the judicial proceeding.37 One court of appeals held

29. 532 U.S. 598 (2001) (holding that catalyst theory is not a permissible basis for

attorneys’ fees awards under the Americans with Disabilities Act and the Fair Housing

Amendments Act).

30. Id. at 603.

31. Id. at 600.

32. Id. at 605.

33. See Bennett v. Yoshina, 259 F.3d 1097, 1100–01 (9th Cir. 2001) (Civil Rights

Attorney’s Fees Awards Act of 1976); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th

Cir. 2001) (28 U.S.C. §1988); Griffin v. Steeltek, Inc., 261 F.3d 1026, 1029 (10th Cir.

2001) (Americans with Disabilities Act (ADA)).

34. Sierra Club v. EPA, 322 F.3d 718, 721–26 (D.C. Cir. 2003), cert. denied, 540

U.S. 1104 (2004) (Clean Air Act); Loggerhead Turtle v. County Council, 307 F.3d

1318, 1325–27 (11th Cir. 2002) (Endangered Species Act); Ctr. for Biological Diversity

v. Norton, 262 F.3d 1077, 1080 n.2 (10th Cir. 2001) (Endangered Species Act).

35. 42 U.S.C. §1988 (2000).

36. Maine v. Thiboutot, 448 U.S. 1 (1980) (per curiam).

37. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980). Cf. Webb v. Bd. of

Educ., 471 U.S. 234 (1985) (holding award inappropriate because administrative pro-
10 Awarding Attorneys’ Fees and Managing Fee Litigation

that where the fee-shifting statute refers only to an “action”—and

omits “proceeding”—fee awards for success at the administrative

phase are not allowed.38

Courts of appeals have consistently held that when plaintiffs lose a

claim governed by a fee statute but prevail on another claim, they are

not entitled to fees.39 However, they are entitled to fees if they prevail

on another claim and the fee-based claim is not reached (as long as it

is not frivolous).40

A plaintiff may be a prevailing party entitled to fees pendente lite

rather than at the conclusion of the litigation. Courts have long had

discretion to award interim fees where liability has been established

but no remedial order has been entered.41 The Supreme Court has

suggested in dicta that district courts have discretion to award interim

fees whenever the plaintiff achieves success sufficient to make it a prevailing party—regardless of the stage of the litigation42—for example,

when the plaintiff receives a partial summary judgment establishing

liability on one issue while other issues remain to be tried. However,

interim fees should be generally granted only if they are necessary for

ceeding was not mandatory). See also N.C. Dep’t of Transp. v. Crest St. Cmty. Council, 479 U.S. 6 (1986) (holding award inappropriate when plaintiff prevailed in mandatory administrative proceedings but filed no judicial action, except to recover fees).

38. Cann v. Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 316–17

(9th Cir. 1993) (ERISA). Cf. Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir.

2000) (no attorneys’ fees at administrative stage per ERISA legislative history).

39. Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990), cert. denied, 112 S. Ct. 65

(1991); Keely v. City of Leesville, 897 F.2d 172, 176–77 (5th Cir. 1990); Northeast

Women’s Ctr. v. McMonagle, 889 F.2d 466, 476 (3d Cir. 1989), cert. denied, 494 U.S.

1068 (1990); Finch v. City of Vernon, 877 F.2d 1497, 1507–08 (11th Cir. 1989);

McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir. 1984); Gagne v. Town of Enfield, 734

F.2d 902, 904 (2d Cir. 1984); Reel v. Ark. Dep’t of Corr., 672 F.2d 693, 698 (8th Cir.

1982); Haywood v. Ball, 634 F.2d 740, 743 (4th Cir. 1980).

40. Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), cert. denied, 112 S. Ct. 969

(1992); Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991); Milwe v. Cavuoto, 653 F.2d

80 (2d Cir. 1981).

41. Bradley v. Sch. Bd. of Richmond, 416 U.S. 696 (1974).

42. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790–91

(1989).
Fee-Shifting Statutes 11

the plaintiff to continue pursuing the lawsuit, or if the case has been

unusually protracted.43

If a plaintiff has received interim fees, but its victory on the underlying issue or issues is reversed on appeal, it may be directed to repay the money.44 Several trial courts have conditioned interim fees on

the posting of a security.45

b. Prevailing defendants

In Christiansburg Garment v. EEOC,46 the Supreme Court held that

the Title VII fee-shifting statute 47 authorizes an award to prevailing

defendants as well as to prevailing plaintiffs. The holding appears to

apply to all fee-shifting statutes that speak of a prevailing party without specification.48 However, the Court held that an award for the Title VII defendant requires more than a showing that the defendant is a

prevailing party. The trial court must also find that the plaintiff’s suit

was “frivolous, unreasonable, or without foundation.”49 It need not

find subjective bad faith on the plaintiff’s part.50

43. See Bradley, 416 U.S. at 722–23; McKenzie v. Kennickell, 669 F. Supp. 529,

532–33 (D.D.C. 1987); W. Side Women’s Serv. v. Cleveland, 594 F. Supp. 299, 303

(N.D. Ohio 1984).

44. There is precedent for the return of fees in common fund and bankruptcy

cases. See Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986) (per

curiam); Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), cert. denied, 476 U.S.

1169 (1986); In re Hepburn, 84 B.R. 855 (S.D. Fla. 1988); In re Chin, 31 B.R. 314

(Bankr. S.D.N.Y. 1984). Although the authors found no reported cases of parties ordered to return fees awarded pursuant to fee-shifting statutes, courts apparently have

such authority. See People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134 (7th

Cir. 1991) (“court may...direct the plaintiffs to repay the money if they ultimately

fail to establish an entitlement to relief”).

45. See Feher v. Dep’t of Labor & Indus. Relations, 561 F. Supp. 757, 768 (D.

Haw. 1983); Howard v. Phelps, 443 F. Supp. 374, 377 (E.D. La. 1978); Nicodemus v.

Chrysler Corp., 445 F. Supp. 559, 560 (N.D. Ohio 1977), rev’d on other grounds, 596

F.2d 152 (6th Cir. 1979).

46. 434 U.S. 412 (1978).

47. 42 U.S.C. §2000e-5(k) (2000).

48. See Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (generalizing Christiansburg’s holding).

49. Christiansburg, 434 U.S. at 421.

50. Id.
12 Awarding Attorneys’ Fees and Managing Fee Litigation

In Fogerty v. Fantasy, Inc.,

51 the Supreme Court rejected a requirement that a prevailing defendant under the Copyright Act of

197652 be held to a more stringent standard than a prevailing plaintiff.

Although the language awarding attorneys’ fees to a “prevailing party”

under the Copyright Act and that under the Civil Rights Act of 1964

are “virtually identical,” the Court stated that factors warranting different treatment of plaintiffs and defendants under Title VII were not

at work under the Copyright Act.53 The Court held that under the

Copyright Act, “prevailing plaintiffs and prevailing defendants are to

be treated alike.”54

Since the decision in Fogerty, the Fourth Circuit has held that the

more stringent Christiansburg standard applies to prevailing defendants under the Fair Housing Act,55 and thus, a court can treat a prevailing defendant differently from a prevailing plaintiff in deciding

whether to award attorney fees.56

c. Prevailing intervenors

Courts of appeals have held that fees may be awarded in favor of an

intervenor.57 The intervenor must “contribute[] importantly”58 or

play a “significant role”59 in producing the favorable outcome. The

Second Circuit rejected the contention that intervenors can recover

51. 510 U.S. 517 (1994).

52. 17 U.S.C. §505 (2000).

53. The Court noted that, in contrast to the Civil Rights Act of 1964, there was

no indication in the Copyright Act’s legislative history that Congress intended plaintiffs and defendants to be treated differently and that the purpose of the Copyright

Act was not served by favoring plaintiffs over defendants. See Fogerty, 510 U.S. at 524.

54. Id. at 534.

55. 42 U.S.C. §3613(c)(2) (2000).

56. See Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th

Cir. 1997) (“proscriptions of the FHA draw on the same policies attending Title VII of

the Civil Rights Act”).

57. Wilder v. Bernstein, 965 F.2d 1196, 1202–04 (2d Cir.) (en banc), cert. denied,

113 S. Ct. 410 (1992); Grove v. Mead Sch. Dist., 753 F.2d 1528, 1535 (9th Cir.), cert.

denied, 474 U.S. 826 (1985); Miller v. Staats, 706 F.2d 336, 340–42 (D.C. Cir. 1983).

58. United States v. Bd. of Educ. of Waterbury, 605 F.2d 573, 574 (2d Cir. 1979).

59. Donnell v. United States, 682 F.2d 240, 246 (D.C. Cir. 1982), cert. denied, 459

U.S. 1204 (1983).
Fee-Shifting Statutes 13

fees only when they assert a violation of their own rights.60 The fee

award should reflect the intervenor’s contribution; efforts that duplicate work of the original plaintiffs should not be compensated.61

d. Prevailing pro se litigants

The Supreme Court held that under the civil rights fee-shifting statute, a pro se litigant, whether a lawyer or a layperson, is not eligible

for an award of attorneys’ fees.62 The Court ruled that the word “attorney” in the Civil Rights Attorney’s Fees Awards Act assumes an

agency relationship.63 Lower courts have since extended the prohibition to other fee-shifting statutes.64 One appellate court has allowed

the award of fees to a pro se attorney litigant who also represented a

co-plaintiff in a civil rights action.65 Awarding attorneys’ fees to pro se

litigants who sought advice from outside counsel may be appropriate,66 but a pro se attorney litigant is not entitled to fees for his or her

colleagues’ work.67

60. Wilder, 965 F.2d at 1202.

61. Id. at 1204–05.

62. Kay v. Ehrler, 499 U.S. 432 (1991).

63. Id. at 435–36.

64. See, e.g., Woodside v. Sch. Dist. of Philadelphia Bd. of Ed., 248 F.3d 129, 131

(3d Cir. 2001) (pro se attorney litigant under the Individuals with Disabilities Education Act); Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260, 263 (4th Cir. 1998)

(same), cert. denied, 526 U.S. 1159 (1999); Burka v. United States Dep’t of Health &

Human Servs., 142 F.3d 1286, 1290 (D.C. Cir. 1998) (pro se attorney litigant under

the Freedom of Information Act); Ray v. United States Dep’t of Justice, 87 F.3d 1250,

1252 (11th Cir. 1996) (same); SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir.

1994) (pro se litigant under the Equal Access to Justice Act).

65. Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir.

1999).

66. Blazy v. Tenet, 194 F.3d 90, 92 (D.C. Cir. 1999) (“pro se status does not by

itself preclude the recovery of fees for consultations with outside counsel”). At least

one appellate court has held that the pro se attorney litigant must demonstrate a

“genuine attorney–client relationship” with outside counsel. Kooritzky v. Herman,

178 F.3d 1315, 1323–24 (D.C. Cir. 1999).

67. Burka, 142 F.3d at 1291 (no attorney–client relationship).
14 Awarding Attorneys’ Fees and Managing Fee Litigation

e. Amici curiae

The Fifth Circuit held that there was no common law or statutory basis for an award of attorneys’ fees to amici curiae who voluntarily68

participated in a lawsuit.69 The Ninth Circuit likewise held that amici

curiae are not entitled to fees.70 The Second Circuit has indicated in

dicta that fee awards to amici curiae are not appropriate. 71 However,

at least one district court awarded fees to amici curiae who “contributed to the [p]laintiffs’ victory” and “could have chosen to seek leave

to intervene had the case proceeded to trial.”72

3. Is there standing to bring a claim for fees?

The Supreme Court has stated that an award of fees is to the party,

not to counsel.73 In most circumstances, this is a mere technicality.

For example, the Seventh Circuit has said that a motion for fees may

be made in the name of the attorney, and an award so directed:

68. Court-appointed amicus curiae may be entitled to fees from a party. The

D.C. Circuit has set forth a two-part test: “the court must ‘appoint [ ] an amicus curiae who renders services which prove beneficial to a solution of the questions presented’’’ and “‘direct [the fee] to be paid by the party responsible for the situation that

prompted the court to make the appointment.’” Schneider v. Lockheed Aircraft

Corp., 658 F.2d 835, 854 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982) (quoting 4

Am. Jur. 2d Amicus Curiae §7 (1969)).

69. Morales v. Turman, 820 F.2d 728, 731–33 (5th Cir. 1987). The court pointed

out that the amici curiae never represented the class, never asked to intervene, and, in

fact, would not have had standing to intervene.

70. Miller-Wohl Co. v. Comm’r of Labor & Indus., State of Mont., 694 F.2d 203

(9th Cir. 1982) (no “common benefit” exception to American rule for amici curiae).

71. Wilder v. Bernstein, 965 F.2d 1196, 1203 (2d Cir. 1992) (“ruling that present

intervenors are prevailing parties [for fee award] will not open the flood-gates to

amicus curiae, good samaritans, or even litigious meddlers so that they may ‘team up’

and overburden the non-prevailing party with excessive attorneys’ fees”).

72. Russell v. Bd. of Plumbing Examiners of the County of Westchester, 74 F.

Supp.2d 349, 350, 350 n.2 (S.D.N.Y. 1999) (stating that awarding fees here “will not

open the flood-gates to litigious meddlers” and that requiring the amicus trade association “to move to intervene nunc pro tunc so as to get paid would be exalting form

over substance”).

73. Evans v. Jeff D., 475 U.S. 717 (1986) (discussed in text accompanying infra

note 98). Although the award of fees is to the party, the party may not keep the fees.

See United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., Inc., 89 F.3d

574, 577–79 (9th Cir. 1996), cert. denied, 519 U.S. 1109 (1997).
Fee-Shifting Statutes 15

“[W]here the lawyer is acting in his capacity as the client’s representative...it would exalt form over substance to deny the motion for fees

‘so that the ministerial function of substituting the plaintiff’ for the

attorney could be accomplished.”74

The matter is less straightforward if the court finds the attorney

lacks standing to request fees. In one case, counsel was discharged

(because of the client’s displeasure with his services) before the case

was settled. The Second Circuit said that “[w]ere we to entertain [the

attorney’s] claim, clients’ control of their litigation would be subject

to a veto by former attorneys no longer under an obligation of loyalty.”75 In another case, the trial court granted a fee award and ordered a check payable jointly to two attorneys and a legal services organization. The plaintiffs requested that the check be made solely to

the legal services organization, and the court so ordered. Over the

plaintiffs’ objection, one of the attorneys appealed the order. The First

Circuit held that the attorney lacked standing because the appeal “was

not only unauthorized by [the plaintiffs] but was not made for their

benefit.”76 Although it agreed with those decisions, the Seventh Circuit permitted a fee request by an attorney who had successfully defended a judgment for his client on appeal, even though the client

subsequently discharged him before the conclusion of the litigation;

there was no question that the attorney had acted with the client’s approval during the appeal and no ground for believing that the client

objected to the fee petition.77

74. Richardson v. Penfold, 900 F.2d 116, 117 (7th Cir. 1990) (quoting Ceglia v.

Schweicker, 566 F. Supp. 118, 120 (E.D.N.Y. 1983)).

75. Brown v. Gen. Motors, 722 F.2d 1009, 1011 (2d Cir. 1983).

76. Benitez v. Collazo-Collazo, 888 F.2d 930, 933 (1st Cir. 1989).

77. Lowrance v. Hacker, 966 F.2d 1153, 1157 (7th Cir. 1992) (fee claim based on

state lien statute, not on fee-shifting statute). The Seventh Circuit followed Lowrance

in Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), a case in

which the plaintiff won a verdict and fee award, and his attorney withdrew during the

pendency of a post-trial adjudication over the amount of damages and fees. In withdrawing, the attorney asked the court for permission to continue to represent himself

with respect to fees. The trial court granted permission, and the Seventh Circuit

agreed with the decision: The attorney acted on the client’s behalf in securing the verdict, and there was no evidence that the client objected to the attorney’s efforts to get

the fee award enlarged. Samuels, 969 F.2d at 576–77.
16 Awarding Attorneys’ Fees and Managing Fee Litigation

4. Is there a liable party?

Any losing defendant, including the government or government officials, can be liable for fees.78 However, plaintiffs who prevail only

against government employees in their personal capacities may not

recover fees from the government.79

The Supreme Court has held that attorneys’ fees may be awarded

against an intervenor, but only on a showing of bad faith.80 Three

courts of appeals have considered whether fees may be awarded

against the defendant to compensate the plaintiff for successful work

in opposing an intervenor. The Fourth and Seventh Circuits affirmed

a denial of fees.81 However, the Eighth Circuit affirmed an award of

fees against the defendant for work by the plaintiffs in defending a

court-ordered remedy against members of the plaintiff class who intervened to challenge the remedy in a desegregation case.82 The Eighth

Circuit distinguished this case from the Seventh Circuit case, noting

that here “the plaintiffs incurred their fees in defending the remedy,

which was crucial to the object in filing suit to begin with.”83

5. Are there special circumstances militating against an award?

Although fee-shifting statutes generally make fee awards for prevailing

parties discretionary, the Supreme Court has stated that an award

should be given absent “special circumstances” that render one un78. See, e.g., Pulliam v. Allen, 466 U.S. 522, 543–44 (1984) (state judges liable for

fees).

79. Kentucky v. Graham, 473 U.S. 159 (1985).

80. Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754 (1989).

81. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176–78 (4th Cir. 1994)

(“Zipes instructs us not to shift intervention-related expenses to the losing defendant.”); Bigby v. Chicago, 927 F.2d 1426, 1429 (7th Cir. 1991) (affirming a denial of

fees where the defendant had opposed the intervenor’s position and the issue raised

by the intervenors was ancillary to the main litigation).

82. Jenkins v. Missouri, 967 F.2d 1248, 1250–52 (8th Cir. 1992) (defendant

should pay expenses incurred in connection with intervenors because of “special nature of desegregation cases”).

83. Id. at 1251 n.2.
Fee-Shifting Statutes 17

just.84 In every Supreme Court case in which the defendants have argued that special circumstances exist, the Court has rejected the

claim,85 with one noted exception.86 Courts of appeals have followed

this lead, rejecting most claimed special circumstances, including

claims based on the defendant’s willingness to enter into an early settlement;87 the lawsuit’s conferring a private benefit on the plaintiff but

no larger public benefit;88 the plaintiffs’ ability to pass their litigation

costs on to consumers;89 the plaintiff’s proceeding in forma pauperis

while benefiting from court-appointed counsel;90 the failure of a consent decree to mention fees;91 an award of injunctive relief only;92 a

third party’s financing the plaintiffs’ suit;93 and the routine nature of

the case.94

84. Blanchard v. Bergeron, 489 U.S. 87, 89 (1989) (quoting Newman v. Piggie

Park Enters., 390 U.S. 400, 402 (1968)). Accord Hensley v. Eckerhart, 461 U.S. 424,

429 (1983).

85. See Washington v. Seattle Sch. Dist., 458 U.S. 457, 487 n.31 (1982) (plaintiffs

were state-funded entities); N.Y. Gaslight Club v. Carey, 447 U.S. 54, 70–71 n.9

(1980) (plaintiffs were represented pro bono by public interest group); Bradley v. Sch.

Bd. of Richmond, 416 U.S. 696, 710–22 (1974) (fee-shifting statute took effect after

most of litigation was completed); Newman, 390 U.S. at 402 (good faith was shown by

defendants).

86. See Farrar v. Hobby, 506 U.S. 103 (1992), discussed infra text and accompanying notes 189–94.

87. Barlow-Gresham Union High Sch. v. Mitchell, 940 F.2d 1280 (9th Cir. 1991);

Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990).

88. See, e.g., Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982). Accord Lawrence v.

Bowsher, 931 F.2d 1579, 1580 (D.C. Cir. 1991) (trial court found special circumstances where plaintiff’s success was actually harmful to a large class of prospective

plaintiffs; court of appeals reversed, stating that prevailing plaintiff “is entitled to reasonable attorneys’ fees independent of the district court’s view of the greater good for

the greatest number”).

89. Am. Booksellers Ass’n v. Virginia, 802 F.2d 691, 697 (4th Cir. 1986).

90. Starks v. George Court Co., 937 F.2d 311, 315–16 (7th Cir. 1991).

91. El Club del Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 100–01 (3d Cir.

1984).

92. Crowder v. Hous. Auth. of Atlanta, 908 F.2d 843, 848–49 (11th Cir. 1990).

93. Am. Council of the Blind v. Romer, 962 F.2d 1501, 1503 (10th Cir. 1992),

vacated and remanded on other grounds, 113 S. Ct. 1038 (1993).

94. Staten v. Hous. Auth. of Pittsburgh, 638 F.2d 599, 605 (3d Cir. 1980).
18 Awarding Attorneys’ Fees and Managing Fee Litigation

Cases in which claims of special circumstances succeed generally

involve highly unusual conditions. For example, the Tenth Circuit

upheld a determination of special circumstances in a case in which the

plaintiff won an injunction that was eventually mooted before the defendant had an opportunity to appeal, and in a virtually identical

companion case, the decision for the plaintiff had been reversed on

appeal.95 In another example, the Eighth Circuit found that nuisance

settlements also constitute “special circumstances” that render an

award “unjust.”96

6. Is there a fee waiver?

Prevailing parties may waive their right to a fee award as part of a settlement agreement.97 In Evans v. Jeff D.,98 the plaintiff accepted a gen95. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512, 1514 (10th Cir. 1990).

96. Tyler v. Corner Constr. Corp., 167 F.3d 1202, 1206 (8th Cir. 1999) (defining

“nuisance settlement” as “one that is accepted despite the fact that the case against the

defendant is frivolous or groundless, solely in an effort to avoid the expense of litigation”).

97. Courts of appeals have established rules for determining whether fees are

waived. The Third Circuit requires express stipulation of a waiver in the settlement

agreement. Ashley v. Atl. Richfield, 794 F.2d 128, 136–39 (3d Cir. 1986); El Club del

Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 101 (3d Cir. 1984). The Ninth Circuit

permits inferring a waiver from “clear evidence that...an ambiguous clause was

intended [as a waiver] by both parties.” Muckleshoot Tribe v. Puget Sound Power &

Light, 875 F.2d 695, 698 (9th Cir. 1989). The Second Circuit applies a less stringent

standard: “a party may express its intent to waive attorneys’ fees by employing broad

release language, regardless of whether that release explicitly mentions attorneys’

fees.” Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1058

(2d Cir. 1995).

The Third, Ninth, and Tenth Circuits require the party responsible for fees in

civil rights cases to show that the settlement agreement included a release of fees. Ellis

v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1201 (10th Cir. 1999); Muckleshoot, 875

F.2d at 698 (“any party wishing to foreclose a suit for §1988 fees must negotiate a

provision waiving attorneys’ fees”); El Club del Barrio, 735 F.2d at 100–01. However,

the Eighth and D.C. Circuits place the burden on the prevailing party to show that the

release did not waive fees. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998); Elmore

v. Shuler, 787 F.2d 601, 603 (D.C. Cir. 1986). There is also a split among circuits on

how to interpret silence regarding fees. The Sixth, Ninth, and Tenth Circuits agree

that silence does not equal a waiver of attorneys’ fees. See Ellis, 163 F.3d at n.19 and
Fee-Shifting Statutes 19

erous settlement offer conditioned on a waiver of fees but argued on

appeal that such offers placed counsel in an ethical dilemma. The Supreme Court rejected this argument, maintaining that counsel faced

no ethical dilemma because there is no duty to pursue a fee award.

The Court held that a fee award belongs to the party, not to counsel,

and can be waived by the party. Thus, settlements contingent on a

waiver of a fee award are valid and enforceable.

There is another issue of concern regarding fee awards that is

nearly opposite the waiver issue. Counsel can reach a “sweetheart”

settlement, in which the defendant pays a small amount to the plaintiff and a high amount in attorneys’ fees. This concern is greatest in

class actions, in which counsel are less likely to consult plaintiffs during settlement negotiations. The Third Circuit recommended a procedure to safeguard against this problem:

[T]rial courts [can] insist upon settlement of the damage aspect of the case

separately from the award of statutorily authorized attorneys’ fees. Only after court approval of the damage settlement should discussion and negotiation of appropriate compensation begin. This would eliminate the situation...of having, in practical effect, one fund divided between the attorney

and client.99

The Supreme Court, however, said courts may not require this approach,100 and another Third Circuit panel and a Third Circuit task

force expressed concern that the approach is unenforceable and discourages settlement.101

cases cited therein. Cf. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998) (“silence may

constitute a waiver of the right to claim fees”).

98. 475 U.S. 717 (1986).

99. Prandini v. Nat’l Tea, 557 F.2d 1015, 1021 (3d Cir. 1975).

100. Evans, 475 U.S. at 738 n.30.

101. El Club del Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 101 n.3 (3d Cir.

1984); Court Awarded Attorney Fees: Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 267–68 (1985). The task force suggested appointing a disinterested person to protect the interests of class members or unrepresented beneficiaries. Id. at 256.
20 Awarding Attorneys’ Fees and Managing Fee Litigation

B. Calculating the Amount of the Award

Determining that a fee award is in order is only the beginning. The

proper amount of the award must be calculated, and this involves several considerations:

• What constitute fees?

• What is the method of calculating the amount of fees?

• What documentation is required?

• Should the lodestar be adjusted?

• What are the procedural aspects of fee disputes?

1. What constitute fees?

Two Supreme Court cases addressed what attorneys’ fees encompass.

In Missouri v. Jenkins,102 the Court addressed compensation for paralegals and law clerks, holding that their work should be compensated

at the rates at which it is billed to clients. Although the case turned on

the question of what constitutes a “reasonable” fee for such services,

not on whether such services are part of attorneys’ fees (a point the

defendant conceded), in addressing that question the Court made

some observations relevant to the definition of fees:

Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the

term must refer to a reasonable fee for the work product of an attorney.

Thus, the fee must take into account the work not only of attorneys, but

also of secretaries, messengers, librarians, janitors, and others whose labor

contributes to the work product for which an attorney bills her client; and it

must also take account of other expenses and profit....We thus take as our

starting point the self-evident proposition that the “reasonable attorney’s

fee” provided for by statute should compensate the work of paralegals, as

well as that of attorneys.103

102. 491 U.S. 274 (1989).

103. Id. at 285. Rejecting the argument that the work of paralegals and law clerks

should be compensated by reference to its cost to the firm, the Court said that the

marketplace is the guide, and attorneys generally bill clients separately (at for-profit

rates) for paralegals’ and law clerks’ work. The defendant claimed that the extension

of this approach is separate compensation for “secretarial time, paper clips, electricity,

and other expenses.” The Court responded that the “safeguard against [such practices] is the discipline of the market.” Id. at 287–88 n.9. See also Lipsett v. Blanco, 975
Fee-Shifting Statutes 21

In West Virginia University Hospitals, Inc. v. Casey,

104 the Court

held that a fee-shifting statute does not authorize compensation for

experts’ fees unless it expressly says that it does.105 The basis of the

holding was a long tradition of statutes that distinguish between experts’ fees and attorneys’ fees. The Court distinguished the case from

Jenkins on two related grounds. First, no fee-shifting statutes treat fees

for law clerks or paralegals separately from attorneys’ fees. Second, the

cost of such work has traditionally been included in an attorney’s fee

(even though it is now generally billed separately), whereas experts’

fees have always been treated as a separate item.

The guidepost from Jenkins and Casey is the tradition of billing

and fee-shifting practice.106 The determination of what constitutes a

reasonable fee—in terms of the work performed and the billing

rate—is a somewhat different matter, which is treated at length below.

2. What is the method of calculating the amount of fees?

In Hensley v. Eckerhart,107 the Supreme Court established that in feeshifting cases the basis of a fee award is the “lodestar”—the number of

F.2d 934, 939 n.5 (1st Cir. 1992) (interpreting Jenkins to hold that “[w]hether paralegal hours may be billed at a market rate ultimately depends upon whether such a

practice is common in the relevant legal market”).

104. 499 U.S. 83 (1991).

105. The Civil Rights Act of 1991 effectively overrode Casey, making fees for expert witnesses available under the civil rights fee-shifting statute. However, the Act in

no way undercuts the holding in Casey that such fees are unavailable unless expressly

authorized by statute.

106. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1557 (9th Cir. 1992) (instructing district court, on remand, to consider whether assorted claimed costs (e.g., a

filing cabinet) “are or are not...ordinarily [ ] treated as reimbursable in a private

attorney-client relationship”); Davis v. Mason County, 927 F.2d 1473, 1477–78 (9th

Cir.) (affirming compensation for travel costs because “expenses incurred during the

course of litigation which are normally billed to fee-paying counsel” are compensable

under the fee-shifting statutes), cert. denied, 112 S. Ct. 275 (1991). Several circuits

have held that computer-aided legal research costs are part of attorneys’ fees and may

not be separately billed. See United States ex rel. Evergreen Pipeline Constr. Co. v.

Merritt Meridian Constr. Corp., 95 F.3d 153, 172 (2d Cir. 1996); Haroco, Inc. v. Am.

Nat’l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440–41 (7th Cir. 1994); Standley v.

Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 n.7 (8th Cir. 1993).

107. 461 U.S. 424 (1983).
22 Awarding Attorneys’ Fees and Managing Fee Litigation

hours reasonably expended multiplied by the applicable hourly market rate for legal services.108 This is true regardless of whether the

plaintiff and the attorney had a private (contingent or hourly) fee

contract.109

Several appellate courts have rejected lower courts’ attempts to

calculate fees using a method other than the lodestar.110 These cases

involved low damages or limited success.111

108. Id. at 433. See also Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002) (“Thus,

the lodestar method today holds sway in federal-court adjudication of disputes over

the amount of fees properly shifted to the loser in the litigation.”).

Before Hensley, many courts calculated fees by analyzing the Johnson factors:

(1)time and labor required; (2)novelty and difficulty of issues; (3)skill required;

(4)loss of other employment in taking the case; (5)customary fee; (6)whether fee is

fixed or contingent; (7)time limitations imposed by client or circumstances;

(8)amount involved and result obtained; (9)counsel’s experience, reputation, and

ability; (10)case undesirability; (11)nature and length of relationship with the clients;

and (12)awards in similar cases. Johnson v. Ga. Highway Express, 488 F.2d 714, 717

(5th Cir. 1974). Hensley makes clear that the Johnson factors matter only as they bear

on the market rate or hours reasonably expended, or, in rare cases, if they are a basis

for adjusting the lodestar. See infra text accompanying notes 167–246 (discussing adjustments). See also Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986) (stating that “the

Johnson factors are to be considered ... in determining the reasonable rate and the

reasonable hours”). Only the Fifth and Eleventh Circuits clearly require consideration

of these factors in each case. See, e.g., Nisby v. Court of Jefferson County, 798 F.2d

134, 137 (5th Cir. 1986) (reversing award because court did not address “applicability

of each of the Johnson factors”); Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541,

1543–44 (11th Cir. 1985) (same). In the Ninth Circuit, the Johnson factors are known

as the Kerr factors. (See Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975),

cert. denied, 425 U.S. 951 (1976).) The Kerr factors that are not subsumed in the lodestar calculation are to be considered in determining if adjustments to the lodestar are

warranted. See Morales v. City of San Rafael, 96 F.3d 359, 363–64 nn.8–10 (9th Cir.

1996), amended by, reh’g en banc denied, 108 F.3d 981 (1997).

109. In Blanchard v. Bergeron, 489 U.S. 87 (1989), the Supreme Court held that a

fee award under section 1988 may exceed the amount dictated by a contingent fee

agreement. In Venegas v. Mitchell, 495 U.S. 82 (1990), the Court held that section

1988 did not prohibit a contingent fee agreement in which a prevailing civil rights

plaintiff paid his attorney more than the statutory award against the defendant.

110. See Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2d Cir. 1998) (rejecting a

“billing judgment” approach—where fees are “reasonable” if rationally related to the

monetary recovery anticipated ex ante—and reaffirming use of lodestar); Orchano v.

Advanced Recovery, Inc., 107 F.3d 94, 99–100 (2d Cir. 1997) (remanding because
Fee-Shifting Statutes 23

a. Reasonable rate

The reasonable rate is determined by reference to the marketplace.112

Courts agree that an attorney’s customary billing rate is the proper

starting point for calculating fees.113 However, that rate is not always

conclusive. In Blum v. Stenson,114 the Supreme Court held that a nonprofit organization is entitled to compensation at the market rate of

the legal community at large.115 The D.C. Circuit extended this holding to for-profit attorneys who charge lower rates for some clients in

lodestar analysis not made); Morales, 96 F.3d at 365 (rejecting court’s “reasoning” of

what an appropriate fee should be), amended by, reh’g en banc denied, 108 F.3d 981

(1997); Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1492–94 (11th Cir. 1994) (rejecting fees based on lodestar adjusted downward by multiplier where result appeared

to be a “multiple-of-damages approach”).

The First Circuit, however, appears to have left open the door to an alternative

method. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 338, 342 (1st Cir. 1997)

(holding that it was “error to forgo the lodestar” and stating that “while such a departure from preferred practice will not necessarily be fatal, spurning all consideration

of a lodestar places a substantial burden upon the district court to account for its actions”). See also Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), discussed infra text

accompanying note 198.

111. See infra text accompanying notes 178–99.

112. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (“we have consistently looked to the marketplace as our guide to what is ‘reasonable’”).

113. See, e.g.,Islamic Ctr. of Miss. v. Starkville, Miss., 876 F.2d 465, 469 (5th Cir.

1989); Kelley v. Metro. County Bd. of Educ., 773 F.2d 677, 683 (6th Cir. 1985) (en

banc), cert. denied, 474 U.S. 1083 (1986); Cunningham v. City of McKeesport, 753

F.2d 262, 268 (3d Cir. 1985), vacated on other grounds, 478 U.S. 1015 (1986).

114. 465 U.S. 886 (1984).

115. Despite Blum, some courts have held that, at least in cases not brought under a civil rights statute, a salaried union attorney is entitled only to fees calculated at

a cost plus overhead rate. Devine v. Nat’l Treasury Employees Union, 805 F.2d 384

(Fed. Cir. 1986), cert. denied, 484 U.S. 815 (1987); Harper v. Better Bus. Serv., 768 F.

Supp. 817 (N.D. Ga. 1991), aff’d, 961 F.2d 1561 (11th Cir. 1992); Johnson v. Orr, 739

F. Supp. 945 (D.N.J. 1988), appeal dismissed, 897 F.2d 128 (1990). These courts reason

that a market-based award would serve to subsidize the union’s ordinary operation.

The Third, Ninth, and D.C. Circuits have held otherwise, finding a market-based

award in order, provided the union deposits the fee into a segregated litigation fund.

Kean v. Stone, 966 F.2d 119, 122–24 (3d Cir. 1992); Am. Fed’n of Gov’t Employees v.

FLRA, 944 F.2d 922, 937 (D.C. Cir. 1991); Curran v. Dep’t of Treasury, 805 F.2d 1406,

1408 (9th Cir. 1986).
24 Awarding Attorneys’ Fees and Managing Fee Litigation

an effort to promote the public interest.116 There are other exceptions

as well. Most courts consider the forum community the proper yardstick, so an award for out-of-town counsel will not be based on the

rates in their usual place of work.117 Even for local counsel, if the usual

rate is sharply at odds with the prevailing market rate, courts generally

have discretion to use the latter.118 Additionally, some courts base an

116. Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir.

1988). In Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), the Seventh Circuit held that

the lawyer’s rate trumps the general market rate, reversing the district court’s award of

fees based on the market rate in the community even though counsel’s rate was lower.

The court recognized the possibility that the lawyer charged his clients less than he

could obtain and noted the holding in Save Our Cumberland Mountains. However,

the evidence showed that the lawyer charged all his clients a submarket rate, thus

posing a different situation from the one faced by the D.C. Circuit. The court held

that the D.C. Circuit may be correct to permit compensation at the market rate in

cases where counsel’s usual rate is the market rate but he or she charges a particular

client (or set of clients) less. However, the Seventh Circuit expressed uneasiness with

this approach, too. Barrow, 977 F.2d at 1106.

117. See, e.g.,ACLU of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999); Davis v.

Macon County, 927 F.2d 1473, 1488 (9th Cir.), cert. denied, 112 S. Ct. 275 (1991).

Ackerly Communications v. Somerville, 901 F.2d 170, 172 (1st Cir. 1990); Polk v.

N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983). Most circuits have

carved out exceptions to this rule. See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 31

F.3d 169, 179 (4th Cir. 1994) (when local attorneys are unavailable and employing

out-of-town counsel is reasonable, out-of-town rates apply); Gates v. Deukmejian,

987 F.2d 1392, 1404–05 (9th Cir. 1992) (affirming use of out-of-town counsel’s rates

when attorneys in forum were unavailable, and citing cases); In re Agent Orange Prod.

Liab. Litig., 818 F.2d 226, 232–33 (2d Cir. 1987) (discussing the exceptions). The D.C.

Circuit carved out a narrow exception: Local rates do not apply when the bulk of the

work is performed in the attorney’s home state and that market reflects substantially

lower rates. Davis County Solid Waste Mgmt. v. EPA, 169 F.3d 755, 759 (D.C. Cir.

1999).

118. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992); Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.), cert. denied, 484 U.S. 990 (1987);

Shakopee Mdewakanton Sioux Cmty. v. City of Prior Lake, Minn., 771 F.2d 1153 (8th

Cir. 1985), cert. denied, 475 U.S. 1011 (1986). But see Gusman v. Unisys, 986 F.2d

1146, 1150–51 (7th Cir. 1993) (lawyer’s own rate is the presumptive rate, and a judge

who departs from it “must have some reason other than the ability to identify a different average rate in the community”—e.g., “the lawyers did not display the excellence...implied by their higher rates” or the “plaintiff did not need top-flight counsel in a no-brainer case”).
Fee-Shifting Statutes 25

award on an hourly rate lower than the attorney’s usual rate if the litigation is outside the attorney’s usual field of practice.119

In Blum, the Supreme Court noted that the market takes into account variation in the skill and experience of attorneys. The reasonable rate for established, experienced practitioners is likely to be

greater than the rate for new attorneys in the same market.120 For example, the Fourth Circuit affirmed an award based on a $150 hourly

rate even though the defendants proffered an affidavit showing that

the usual rate for civil rights attorneys in South Carolina was $50 to

$75.121 The court cited counsel’s “vast experience and expertise” and

evidence on the record that “the prevailing rate for lawyers of his

‘qualifications and experience in comparable complex litigation range

[sic] from $100 to $250’ in South Carolina.”122

Some courts apply different rates to different tasks, for example, a

higher rate for in-court work than for out-of-court work, or different

rates for the liability phase of the litigation and the remedy phase.123

More often, courts apply a flat rate for all work by a particular attorney in the case.124

The Third Circuit held that once a party meets its prima facie

burden of establishing the “community market rate,” and the opposing party does not produce contradictory evidence, the trial court

does not have discretion to adjust the requested rate downward.125

The Tenth Circuit held that it is an abuse of discretion to ignore a

119. See, e.g., Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3, 6 (1st Cir.

1991); Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), cert. denied, 111

S. Ct. 1106 (1991); Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983); Moore v.

Matthews, 682 F.2d 830, 840 (9th Cir. 1982).

120. Blum, 465 U.S. at 895–96 n.11.

121. Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990).

122. Id. at 278.

123. See, e.g., Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990).

124. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992); In re

Meese, 907 F.2d 1192 (D.C. Cir. 1990); Spell v. McDaniel, 824 F.2d 1380 (4th Cir.

1987), cert. denied, 484 U.S. 1027 (1988); Daggett v. Kimmelman, 811 F.2d 793 (3d

Cir. 1987); Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985); Craik v. Minn.

State Univ. Bd., 738 F.2d 348 (8th Cir. 1984).

125. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031,

1036 (3d Cir. 1996).
26 Awarding Attorneys’ Fees and Managing Fee Litigation

party’s evidence of a market rate and apply the rate the trial court

“consistently grants.”126

b. Hours reasonably expended

The Supreme Court has said that counsel is expected to exercise

“billing judgment”127 and that district courts “should exclude from

this initial fee calculation hours that were not ‘reasonably expended,’”

including “excessive, redundant, or otherwise unnecessary” work.128

As a result, lower courts have reduced fee awards where there has been

duplication of services;129 failure to pursue settlement prior to filing a

straightforward suit;130 excessive total time billed considering the lack

of difficulty of the case;131 excessive time billed for particular tasks;132

126. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1256 (10th Cir. 1998).

127. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citing Copeland v. Marshall,

641 F.2d 880, 891 (D.C. Cir. 1980)).

128. Id. at 434.

129. See, e.g., Ackerly Communications v. Somerville, 901 F.2d 170, 171–72 (1st

Cir. 1990).

130. See, e.g., Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 552 (7th Cir.

1999) (fee-paying client would have expected counsel to assess feasibility of quick

settlement prior to filing suit).

131. See, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (holding not

abuse of discretion to deduct hours, because “[t]his was not a complex case. Clarke’s

attorney took no depositions, and performed little discovery. The sole issue at trial

was the amount of back pay. The trial lasted slightly more than one day. Clarke did

not call any witnesses, and did not even testify. The case did not involve any novel

areas of law. Clarke’s post-trial motions were neither complicated nor abstruse.”).

132. See, e.g., Broyles v. Dir., 974 F.2d 508, 510–11 (4th Cir. 1992) (finding several items excessive—e.g., an hour to read a brief opinion and fifteen-minute calls to

the clerk of court’s office, which handles most inquiries in far less time); Smith v.

Freeman, 921 F.2d 1120, 1124 (10th Cir. 1990) (upholding reduction of compensable

hours for work on fees motion: “neither the factual nor legal issues were especially

complex and...[counsel] was thoroughly familiar with the issues”); Ackerly, 901 F.2d

at 173 (disallowing claims for excessive photocopying and computer research); Ustrak

v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988) (38 hours preparing for oral argument

“is far too much” in a short and simple case; likewise, 108.5 hours preparing fee petitions is “the tail wagging the dog, with a vengeance”); Louisville Black Police Officers

Org. v. City of Louisville, 700 F.2d 268, 279 (6th Cir. 1983) (holding district court’s

reduction of hours documented for preparation of plaintiffs’ post-trial and reply

briefs was not an abuse of discretion).
Fee-Shifting Statutes 27

use of too many attorneys133 or too much conferencing;134 unnecessary work by a trial consultant deemed a “non-lawyer[ ] ... doing

lawyers [sic] work”;135 publicity work;136 reading or reviewing of

books not closely related to the case;137 performance of secretarial or

clerical tasks by lawyers;138 and other assorted work deemed unnecessary.139 The Tenth Circuit held it is not a per se abuse of discretion to

award fewer hours than the defendant agrees are reasonable.140

The Seventh Circuit held that it was appropriate to deny fees

completely when the petition for fees was “intolerably inflated” and

“outrageously excessive.”141 The First Circuit reversed an award of

fees where it found that the requesting party’s failure to cull unnecessary hours was “inexcusable.”142 The Fourth Circuit reversed an award

of fees where it found the amount requested “was so outrageously excessive so as [sic] to shock the conscience of the court.”143

At the same time, all kinds of tasks, such as travel,144 lobbying,145

and public relations work,146 are compensable if they are necessary or

133. See, e.g., Goodwin v. Metts, 973 F.2d 378, 383–84 (4th Cir. 1992) (fees cut in

half because firm used several attorneys where one or two would have sufficed);

Grendel’s Den v. Larkin, 749 F.2d 945, 953 (1st Cir. 1984) (“We see no justification

for the presence of two top echelon attorneys at each proceeding.”).

134. In re Olson, 884 F.2d 1415, 1429 (D.C. Cir. 1989).

135. Davis v. Southeastern Pa. Transp. Auth., 924 F.2d 51, 56 (3d Cir. 1991).

136. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994)

(public relations); Greater L.A. Council on Deafness v. Cmty. Television of S. Cal.,

813 F.2d 217, 221 (9th Cir. 1987) (publicity and lobbying); Hart v. Bourque, 798 F.2d

519, 523 (1st Cir. 1986) (arranging lectures and publications about case).

137. Alberti v. Klevenhagen, 896 F.2d 927, 932–34 (5th Cir.), vacated on other

grounds, 903 F.2d 352 (5th Cir. 1990).

138. Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992) (trial court improperly

permitted billing of clerical work, such as court filings, at lawyers’ rates).

139. See, e.g., Olson, 884 F.2d at 1429 (disallowing hours spent on secretarial

overtime, overtime dinner expense, a press release, and futile lobbying to defeat a bill

that was sure to be enacted).

140. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250–51 (10th Cir. 1998).

141. Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).

142. Lewis v. Kendrick, 944 F.2d 949, 956 (1st Cir. 1991).

143. Fair Hous. Council of Greater Wash. v. Landow, 999 F.2d 92, 96–98 (4th

Cir. 1993).

144. See, e.g., Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991); Dowdell v.

Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983). But see Smith v. Freeman, 921
28 Awarding Attorneys’ Fees and Managing Fee Litigation

useful to litigating the case. Moreover, reasonable work at all stages of

the litigation is compensable, including prefiling work;147 work on an

appeal and defending against a petition for certiorari;148 work on a fee

petition and litigating a fee dispute;149 and work in connection with

post-judgment or post-decree administration, monitoring, or fee collection.150

The Third Circuit affirmed an attorneys’ fees award for work

performed in a separate, yet related, case even though the party assessed fees was not a party in the litigation in which the work was

performed. The court stated:

[If] plaintiff can prove that the fees and expenses incurred in the other litigation resulted in work product that was actually utilized in the instant litigation, that the time spent on other litigation was “inextricably linked” to

the issues raised in the present litigation, and that plaintiff has not previF.2d 1120, 1122 (10th Cir. 1990) (affirming compensation at only 25% of standard

hourly rate for travel time).

145. See, e.g., Glover v. Johnson, 934 F.2d 703, 717 (6th Cir. 1991); Demier v.

Gondles, 676 F.2d 92, 93–94 (4th Cir. 1982).

146. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992).

147. See, e.g., Dowdell, 698 F.2d at 1192.

148. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1051 (9th Cir. 1991).

149. The courts are unanimous on this point but split on whether a fee request

for appellate work may be brought in the court of appeals in the first instance. Compare Yaron v. Northampton, 963 F.2d 33, 36 (3d Cir. 1992) (may be brought before

court of appeals), and Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988) (same),

with Crane v. Texas, 766 F.2d 193, 195 (5th Cir.) (per curiam), cert. denied, 474 U.S.

1020 (1985) (may not be brought in court of appeals), and Reel v. Ark. Dep’t of Corr.,

672 F.2d 693, 699 (8th Cir. 1982) (same), and Souza v. Southworth, 564 F.2d 609,

613–14 (1st Cir. 1977) (same). Some courts hold that the petition may be brought in

the court of appeals, but if the court decides that a fee award is in order, it must remand the case to the trial court to calculate the amount. SeeIqbal v. Golf Course Superintendents, 900 F.2d 227, 229–30 (10th Cir. 1990); Finch v. City of Vernon, 877

F.2d 1497, 1508 (11th Cir. 1989); McManama v. Lukhard, 616 F.2d 727, 730 (4th Cir.

1980) (per curiam). The Second Circuit holds that the application should be filed in

the court of appeals, which, except in simple cases, will remand it to the district court

for decision. Dague v. City of Burlington, 976 F.2d 801, 804 (2d Cir.), rev’d on other

grounds, 112 S. Ct. 2638 (1992).

150. See, e.g., Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1305 (11th

Cir. 1988); Spain v. Mountanos, 690 F.2d 742, 747 (9th Cir. 1982).
Fee-Shifting Statutes 29

ously been compensated for those fees and expenses, then the district court

may include those fees and expenses in its fee award.151

Finally, courts have held that it is improper to engage in an “ex

post facto determination of whether attorney hours were necessary to

the relief obtained.”152 The issue “is not whether hindsight vindicates

an attorney’s time expenditures, but whether at the time the work was

performed, a reasonable attorney would have engaged in similar time

expenditures.”153

3. What documentation is required?

The burden of establishing the lodestar rests on the fee applicant, who

must provide appropriate documentation of the hours spent and the

market rate. If the documentation is inadequate, the district court

may reduce the award accordingly.154

The circuits’ precise requirements or preferences for documentation differ. For example, the Eleventh Circuit has said the following:

[T]he general subject matter of the time expenditures ought to be set out

with sufficient particularity so that the district court can assess the time

claimed for each activity....A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or

stage of the case.155

Although the Third Circuit agreed that a fee petition should include

“‘fairly definite information as to the hours devoted to various general

activities, e.g., pretrial discovery, settlement negotiations, and the

151. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414,

420 (3d Cir. 1993). The court pointed out that although the defendant lacked the

opportunity to ensure that the plaintiff’s litigation costs were “not unnecessarily escalated” in the litigation to which it was not a party, the district court had the responsibility “to award fees only for work ‘reasonably expended.’” Id.

152. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 113 S. Ct. 978

(1993).

153. Id. Accord In re Synthroid Mktg. Litig., 264 F.3d 712, 718–19 (7th Cir.

2001); Woolridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990); Indep. Sch. Dist. v. Digre, 893 F.2d 987, 992 (8th Cir. 1990); Dennis v. Chang, 611 F.2d

1302, 1308 (9th Cir. 1980).

154. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

155. Norman, 836 F.2d at 1303.
30 Awarding Attorneys’ Fees and Managing Fee Litigation

hours spent by various classes of attorneys,’”156 it has explicitly rejected the requirement of time summaries, stating that a chronological

listing of time spent per task is sufficient.157 A number of courts have

required that such a listing not be overly general.158

The D.C., First, Second, Seventh, and Tenth Circuits require contemporaneous fee records and may substantially reduce or even deny

a fee award in their absence.159 The Fifth Circuit has said that such records are the “preferred practice” but are not required.160 The Ninth

and Eleventh Circuits have held that reconstructed time records suffice if “supported by other evidence such as testimony or secondary

documentation.”161 The Eighth Circuit has said that “whether recon156. Rode v. Dellarciprete, 892 F.2d 1177, 1190 (3d Cir. 1990) (quoting Lindy

Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d

Cir. 1973)).

157. Rode, 892 F.2d at 1190.

158. See, e.g., Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (affirming reduction of hours where “several entries contain[ed] only gauzy generalities” too

nebulous to allow the opposing party to dispute their accuracy); In re Donovan, 877

F.2d 982, 995 (D.C. Cir. 1989) (district court properly excluded hours with “vague

description[s]” such as “legal issues,” “conference re all aspects” and “call re status”);

Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (affirming reduction in hours

where plaintiff listed hours spent on “research,” without saying what was researched).

See also Domegan v. Ponte, 972 F.2d 401, 425 (1st Cir. 1992) (criticizing “mixed entries”—the lumping together of different activities), vacated and remanded on other

grounds, 113 S. Ct. 1378 (1993).

159. See In re Olson, 884 F.2d 1415, 1428 (D.C. Cir. 1989); Lightfoot v. Walker,

826 F.2d 516, 523 n.7 (7th Cir. 1987); Grendel’s Den v. Larkin, 749 F.2d 945, 952 (1st

Cir. 1984); Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983); McCann v. Coughlin, 698

F.2d 112, 131 (2d Cir. 1983).

160. Alberti v. Klevenhagen, 896 F.2d 927, 931 (5th Cir.), vacated on other

grounds, 903 F.2d 352 (5th Cir. 1990). However, the court did suggest that, in certain

cases, the absence of such records would be grounds for reducing the requested fee. In

Walker v. United States Department of Housing & Urban Development, 99 F.3d 761,

773 (5th Cir. 1996), the court held that the district court’s failure to reject billing records was “clearly erroneous” where the terse listings of lumped-together activities

were “inadequately documented” and “non-contemporaneous.”

161. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1557

(9th Cir. 1989), cert. denied, 494 U.S. 1017 (1990). Accord Jean v. Nelson, 863 F.2d

759, 772 (11th Cir. 1988), aff’d, 496 U.S. 154 (1990).
Fee-Shifting Statutes 31

structed records accurately document the time attorneys have spent is

best left to the discretion of the [trial] court.”162

To establish the market rate, the prevailing party must offer more

than an affidavit showing the attorney’s usual rate; it should offer evidence that this rate is in line with the market rate in the community.163 This evidence generally takes the form of affidavits from other

counsel attesting to their rates or the prevailing market rate.164 Several

courts have stated that, especially in the absence of sufficient documentation, a trial court may rely on its own knowledge of the market.165 It may not, however, substitute its notions of fairness for the

market rate.166

162. Macdissi v. Valmont Indus., 856 F.2d 1054, 1061 (8th Cir. 1988).

163. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (fee applicant has burden “to produce satisfactory evidence—in addition to counsel’s own affidavits—that

the requested rates are in line with those prevailing in the community for similar

services by lawyers of reasonably comparable skill, experience, and reputation”);

Lucero v. Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (affirming reduced rate because plaintiff’s documentation “showed only the prevailing market rates at [plaintiff’s] firm. [Plaintiff] did not submit any evidence that would show that its rates are

representative of the prevailing market rates in Denver or in Colorado.”).

164. See, e.g., Glover v. Johnson, 934 F.2d 703, 718 (6th Cir. 1991) (affirming

award where “third-party affidavits submitted by plaintiffs established the prevailing

market rate”); Columbus Mills v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990) (affirming award where plaintiff “produced more than an affidavit of the attorney who

performed the work. [Plaintiff] produced another affidavit which established that the

rates were reasonable.”); Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292,

1304 (11th Cir. 1988).

165. See, e.g., Norman, 836 F.2d at 1303; Miele v. N.Y. State Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987); Lucero, 815 F.2d at 1385.

But cf. Begley v. HHS, 966 F.2d 196, 198–99 (6th Cir. 1992) (the explanation cannot

be merely the court’s personal belief concerning the market, “ignor[ing] the only evidence” on the record); NAACP v. City of Evergreen, 812 F.2d 1332, 1336 (11th Cir.

1987) (“A trial judge cannot substitute its own judgment for uncontradicted evidence

without record support.”); Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d

648, 657 (3d Cir. 1986) (district court erred in using hourly rates other than those set

out in uncontested affidavits), vacated on other grounds, 483 U.S. 1015 (1987).

166. See, e.g., Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992) (vacating

award where trial court used lower than market rate for work of second and third

chairs at trial, presumably because it felt their rate should be less than that of lead

attorney: “Prevailing plaintiffs are entitled not to a ‘just’ or ‘fair’ price for legal services, but to the market price for legal services.”).
32 Awarding Attorneys’ Fees and Managing Fee Litigation

4. Should the lodestar be adjusted?

In certain cases, the court may adjust the lodestar upward or downward to arrive at the appropriate fee award.167

a. Downward adjustments

i. Incomplete success

Incomplete success is the most common basis for a downward adjustment in attorneys’ fees awards. In Hensley v. Eckerhart,168 the Supreme Court said that when the plaintiff advances discrete, essentially

unrelated claims,169 and prevails on some but not others, it should not

be compensated for work on the unsuccessful claims.170 (In documenting their work, plaintiffs’ attorneys are expected, where possible,

to segregate work performed by claim.171) However, in the majority of

cases, courts have rejected the contention that the lodestar should be

adjusted downward for unsuccessful claims, usually finding that the

successful and unsuccessful claims were legally or factually intertwined or that counsel devoted most of its time to the litigation as a

whole.172 The following exceptions may be instructive.

167. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

168. 461 U.S. 424 (1983).

169. That is, claims not involving “a common core of facts or...based on related legal theories.” Id. at 435.

170. Id. As the Seventh Circuit put it: “Hensley permits the court to award fees

for losing arguments in support of prevailing claims, but not for losing claims.”

Pressley, 977 F.2d at 298.

171. Hensley, 461 U.S. at 437. See also Von Clark v. Butler, 916 F.2d 255, 259 (5th

Cir. 1990) (award reduced where plaintiffs submitted summaries of time sheets and

claimed the summaries pertained only to work on their successful claim); Norman v.

Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (“fee counsel

should have maintained records to show the time spent on the different claims”).

However, the First Circuit maintains that “[i]f the fee-seeker properly documents her

claim and plausibly asserts that the time cannot be allocated between successful and

unsuccessful claims, it becomes the fee-target’s burden to show a basis for segregability.” Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992).

172. See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1283–84 (10th Cir.

1998) (plaintiffs won claim for removal of religious symbol from official seal but lost

“intertwined” claims); Williams v. Roberts, 904 F.2d 634, 640 (11th Cir. 1990) (plaintiff lost transfer and demotion claims but won discharge claim); Northeast Women’s

Ctr. v. McMonagle, 889 F.2d 466, 475 (3d Cir. 1989), cert. denied, 494 U.S. 1068
Fee-Shifting Statutes 33

• Although all claims stemmed from a common incident, where

claims alleging supervisory liability could be severed from

claims alleging direct participation in an excessive force lawsuit, it was an abuse of discretion to award fees for the severable, unsuccessful claims.173

• Where the plaintiff alleged that his discharge from public employment was in retaliation for exercising his First Amendment rights and that the lack of a pretermination hearing

violated due process, and he prevailed on the due process

claim but not the First Amendment claim, the two claims

were so distinct that the district court did not err in discounting hours spent on the unsuccessful claim.174

• Where the plaintiff prevailed against several state officials but

the court dismissed claims against the governor and the attorney general, work in unsuccessfully defending against motions to dismiss was properly held noncompensable. Hours

expended on claims against dismissed defendants are compensable “if ‘plaintiff can establish that such hours also were

fairly devoted to the prosecution of the claim[s] against’ the

defendants over whom plaintiff prevailed....[T]he court

only eliminated those hours specifically attributable to defending against the motions to dismiss the Governor and Attorney General. The hours worked on those motions did not

further successful claims.”175

• Where the plaintiffs’ claims for partial and total disability under workers’ compensation were based on “different factual

(1990) (successful RICO claim and unsuccessful trespass claim based on same evidence); Abshire v. Walls, 830 F.2d 1277, 1282–83 (4th Cir. 1987) (plaintiff won strip

search claim but lost false arrest, false imprisonment, and several other related

claims); Dominic v. Consol. Edison Co. of N.Y., 822 F.2d 1249, 1259–60 (2d Cir.

1987) (plaintiff won retaliation claim but lost discrimination claim).

173. Figueroa-Torres v. Todelo-Davilla, 232 F.3d 270, 278–79 (1st Cir. 2000).

174. Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069 (8th Cir.

1991).

175. Rode v. Dellarciprete, 892 F.2d 1177, 1185, 1186 (3d Cir. 1990) (quoting

Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161,

167 (3d Cir. 1973).
34 Awarding Attorneys’ Fees and Managing Fee Litigation

theories” and “different legal theories,” a deduction for incomplete success was in order.176

• Where the plaintiffs prevailed on one of six unrelated claims,

the Seventh Circuit cautioned that, on remand, it would be

error to compensate counsel for only one-sixth of the total

hours expended, because some time was spent on the litigation as a whole, for example, jury selection. The proper

method is to estimate how much time would have been required if the plaintiffs had pursued only the successful

claim.177

ii. Limited success

In Hensley, the Court did not limit downward adjustments in attorneys’ fees for incomplete success to situations involving unrelated

claims; rather, the Court instructed that even if claims are closely related, or there is just one claim, a downward adjustment to the lodestar may be appropriate if the plaintiff achieved only limited success.178 The gauge of success is the result of the lawsuit in terms of relief; there should not be a downward adjustment simply because not

every argument or theory prevailed.179 Many defendants have asked

courts to reduce awards because of the plaintiff’s unimpressive results,

176. Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).

177. Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988). Accord Schultz v.

Hembree, 975 F.2d 572, 577 (9th Cir. 1992).

178. Hensley v. Eckerhart, 461 U.S. 424, 435–36 (1983). The Court noted that

“[t]here is no precise rule or formula” for determining the extent of the reduction; a

court “may attempt to identify specific hours that should be eliminated, or it may

simply reduce the award to account for the limited success. The court necessarily has

discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.” Id. at 436.

For discussions on how success is measured in civil rights cases, see Villano v.

City of Boynton Beach, 254 F.3d 1302, 1307–08 (11th Cir. 2001), and Coutin v. Young

& Rubicam Puerto Rico, Inc., 124 F.3d 331, 338 (1st Cir. 1997). 

179. Hensley, 461 U.S. at 435–37. See Pressley v. Haeger, 977 F.2d 295, 298 (7th

Cir. 1992) (“Hensley permits the court to award fees for losing arguments in support

of prevailing claims.”). For example, the Seventh Circuit directs a court to look at the

“overall results obtained” in determining if a downward adjustment is appropriate

when claims are factually or legally related. Spellan v. Bd. of Educ., 59 F.3d 642, 646

(7th Cir. 1995).
Fee-Shifting Statutes 35

even when the plaintiff prevailed on all claims, or when the unsuccessful claims were closely related to the successful claims. Courts

have usually rejected these requests,180 but there have been exceptions.181

Lower courts have wrestled with the “limited success” inquiry in

various other situations:

• Where the plaintiff’s judgment was vacated by the Supreme

Court but reinstated on remand, the plaintiff was entitled to

compensation for unsuccessfully opposing the defendant’s

petition for certiorari:

If a plaintiff ultimately wins on a particular claim, she is entitled to

all attorney’s fees reasonably expended in pursuing that

claim—even though she may have suffered some adverse rulings.

Here, although the Supreme Court vacated our judgment, the

Court’s order was simply a temporary setback on the way to a

complete victory for plaintiff....[A] plaintiff who is unsuccessful

180. See, e.g., Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) (trial court

erred in denying fees, as a matter of law, incurred by unsuccessful argument in support of ultimately successful claim); Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380,

1384–88 (D.C. Cir. 1995); Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995);

Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992), cert. denied, 113 S. Ct. 978 (1993);

Herrington v. County of Sonoma, 883 F.2d 739, 745 (9th Cir. 1989); Jackson v. Crews,

873 F.2d 1105, 1109–10 (8th Cir. 1989). See Coutin, 124 F.3d at 339, for a discussion

of “limited success” scenarios as they relate to lodestar reductions in the First Circuit.

See Jaffee, 142 F.3d at 414–16, for a summary of Seventh Circuit case law on awarding

fees for unsuccessful arguments.

181. See, e.g., Andrews v. United States, 122 F.3d 1367, 1375 (11th Cir. 1997)

(abuse of discretion to not give greater weight to plaintiff’s limited success in

CERCLA case); Fleming v. Ayers & Assocs., 948 F.2d 993, 999 (6th Cir. 1991) (no

abuse of discretion to reduce award where plaintiff lost at trial and prevailed only on a

claim suggested to her by the court post-trial, and even on that claim she received

only a portion of back pay, although she requested reinstatement and full back pay);

Gilbert v. Little Rock, Ark., 867 F.2d 1063, 1066–67 (8th Cir.) (upholding downward

adjustment of the fee award where plaintiffs lost on most claims and most individual

plaintiffs received no relief), cert. denied, 493 U.S. 812 (1989); Spanish Action Comm.

of Chicago v. City of Chicago, 811 F.2d 1129, 1133–36 (7th Cir. 1987) (80% reduction

in fee award where plaintiff sought primarily punitive damages and won only compensatory damages, and against only one of many defendants).
36 Awarding Attorneys’ Fees and Managing Fee Litigation

at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage.182

• However, where the court of appeals vacated a judgment for

the plaintiffs and remanded for retrial, and the plaintiffs then

dropped the suit because they had already achieved much of

the desired relief, the court upheld the denial of compensation for work on the unsuccessful appeal. It may be proper to

award fees for an unsuccessful appeal if the plaintiff prevails

on retrial, the court said, “[b]ut in this case, the litigants decided to abandon their claims after losing on appeal....Although they were prevailing parties in the case

overall, it is clear that nothing associated with the appeal

contributed to any favorable result achieved by the litigation.”183

• Where the plaintiffs received fees for obtaining a favorable

consent decree, they were also awarded fees for unsuccessfully

defending against the defendant’s motion to modify the consent decree:

[T]he plaintiffs’ work...was directed toward the protection of

rights originally and unambiguously vindicated in the consent decree....[I]n holding that the modification should be allowed, we

found it necessary to review and evaluate the full range of related

reforms that were...implemented by the terms of the consent decree....[T]he district court did not abuse its discretion or err as a

matter of law in concluding that the matters at issue...were so

intertwined with the original claims that attorneys’ fees for work on

those proceedings should be awarded as to a still “prevailing

party.”184

• The Seventh Circuit observed that confusion can arise if a

district court deducts from the plaintiff’s proposed award for

182. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991).

183. Clark v. City of Los Angeles, 803 F.2d 987, 993 (9th Cir. 1986).

184. Plyler v. Evatt, 902 F.2d 273, 280, 281 (4th Cir. 1990). The court added that

its holding “should not be construed as guaranteeing attorneys’ fees after resolution of

every dispute involving the consent decree. The initial status of ‘prevailing party’ does

not entitle appellees to compensation when resistance to modification is unsuccessful

and the position taken was not essential to the preservation of the integrity of the

consent decree as a whole.” Id.
Fee-Shifting Statutes 37

both partial success and excessive hours. To avoid this problem, the court urged close adherence to the procedures set out

in Hensley: “First the district court should eliminate all hours

claimed that are either not ‘reasonably expended’ or inadequately explained. Only then should it adjust the total number of ‘reasonably expended’ hours so that the final award is

reasonable in relation to the overall results obtained by the

plaintiff.”185

• The Fifth Circuit, in Migis v. Pearle Vision, Inc.,

186 held that

the trial court did not give adequate consideration to the

eighth Johnson factor, “the amount involved and the result

obtained,” when it lowered attorneys’ fees by only 10% for

limited success.187 In Migis, the plaintiff sought twenty-six

times the damages she was awarded in her private civil rights

case, and the fee award was six and one-half times the amount

of awarded damages. The appellate court found that the lower

court abused its discretion by “failing to give adequate consideration to the result obtained relative to the fee award, and

the result obtained relative to the result sought.”188

iii. Low or nominal damages

An obvious case of limited success is an award of only nominal damages. The Supreme Court held that the plaintiff receiving such a

judgment may be awarded “low fees or no fees,”189 but it did not say

that all awards of nominal damages must result in a denial of fees or a

significant downward adjustment—the “extent of success” inquiry

still applies.190 The Court provided little guidance as to how to gauge

185. Spanish Action Comm., 811 F.2d at 1138.

186. 135 F.3d 1041 (5th Cir. 1998).

187. Id. at 1047–48. See supra note 108 for all factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).

188. Migis, 135 F.3d at 1048.

189. Farrar v. Hobby, 506 U.S. 103, 115 (1992).

190. In Farrar, 506 U.S. 103, the Fifth Circuit had reversed the trial court’s award

of fees on the ground that a plaintiff who wins only nominal damages is not a prevailing party. The Supreme Court rejected that view (see supra text accompanying

notes 22–23) but held that such a plaintiff, albeit a prevailing party, may be denied an

award based on lack of success.
38 Awarding Attorneys’ Fees and Managing Fee Litigation

the success of a party receiving nominal damages,191 but Justice

O’Connor’s concurrence cited several relevant factors: “[A] substantial difference between the judgment recovered and the recovery

sought suggests that the victory is in fact purely technical”192 and less

deserving of fees. Thus, the relief sought by the plaintiff is a consideration. However, this factor is not necessarily decisive, because

“an award of nominal damages can represent a victory in the sense of

vindicating rights even though no actual damages are proved.”193 The

court should look to the importance of the issue on which the plaintiff

prevails, for example, whether the plaintiff’s success serves “some

public goal,” such as deterring misconduct.194

The Seventh Circuit adopted Justice O’Connor’s test for determining “whether a prevailing party has achieved a mere technical

victory inappropriate for fees.”195 It directed district courts to “‘look

at the difference between the judgment recovered and the recovery

sought, the significance of the legal issue on which the plaintiff prevailed and, finally, the public purpose of the litigation.’”196 The Ninth

Circuit has cautioned that “[t]he Farrar exception, which would allow

the court to dispense with the calculation of a lodestar and simply establish a low fee or no fee at all, is limited to cases in which the civil

rights plaintiff ‘prevailed’ but received only nominal damages and

achieved only ‘technical’ success.”197

191. Although the Court found fees inappropriate in the case sub judice, it gave

little explanation apart from observing that the plaintiff, who sought $17 million in

damages, had “accomplished little.” Farrar, 506 U.S. at 114. The majority did not

respond to the dissent’s view that, having determined that the plaintiff was a prevailing party, the Court should have remanded the case for the trial court to assess what,

if anything, would be a reasonable award under the circumstances. Id. at 124 (White,

J., concurring in part and dissenting in part).

192. Id. at 121 (O’Connor, J., concurring).

193. Id.

194. Id. at 121, 122.

195. Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 731 (7th Cir.

1995).

196. Id. (quoting Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993)).

197. Morales v. City of San Rafael, 96 F.3d 359, 362–63 (9th Cir. 1996) (compensatory damages of $17,500, while substantially less than sought, were not nominal),

amended by, reh’g en banc denied, 108 F.3d 981 (1997).
Fee-Shifting Statutes 39

Two cases shed further light on when district courts may jettison

the lodestar to award low fees or no fees. The Seventh Circuit held

that when damages are low, but not nominal, and fees incurred are

unreasonable, both ex post and ex ante, Farrar allows a judge to use a

method other than the lodestar to devise an award.198 The Eighth Circuit held that it was not an abuse of discretion to award no fees when

the plaintiff’s victory in a civil rights case amounted to $1 in compensatory damages and the message of great public importance sent to the

defendant had been heard before.199

iv. Disproportionately low damages award

At least in cases that serve the public interest, the fact that the lodestar

far exceeds the damage award is not itself grounds for a downward

adjustment in attorneys’ fees. In Riverside v. Rivera, 200 the plaintiffs,

who were victimized by police misconduct, were awarded more than

$200,000 in fees (based on the lodestar) even though the verdict was

for just $33,000. The Court upheld the award, noting that the civil

rights fee-shifting statute was adopted precisely because damages

awards in civil rights cases are often small, which made it difficult for

the plaintiffs to secure legal representation. However, only four justices joined the plurality opinion. Justice Powell cast the deciding vote

in a concurrence that noted that the case involved the vindication of

constitutional rights and a substantial gain to the public interest. He

stated that “[w]here recovery of private damages is the purpose of a

civil rights litigation, a district court, in fixing fees, is obligated to give

primary consideration to the amount of damages awarded as compared to the amount sought,” and noted that it is a “rare case in which

an award of private damages can be said to benefit the public interest

to an extent that would justify the disproportionality between damages and fees reflected in this case.”201 The plurality did not say

whether it agreed.

198. Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999).

199. Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir. 1995) (police brutality) (noting, “Were we the district court, we might have reached a different result;

nevertheless, we cannot say that the district court abused its discretion.” Id. at 947.).

200. 477 U.S. 561 (1986).

201. Id. at 585, 586 n.3 (Powell, J., concurring).
40 Awarding Attorneys’ Fees and Managing Fee Litigation

One district court, relying on Justice Powell’s concurrence, interpreted Rivera as limiting disproportionate fees to cases that involve

the public interest while requiring proportionality in cases involving

only private damages; however, the Second Circuit reversed the district court’s decision and acknowledged that “Rivera provides no

guidance. It does not speak to a situation...where the monetary

damage recovery benefits a single individual.”202 The Second Circuit

laid down its own rule: The lodestar “should not be reduced simply

because a plaintiff recovered a low damage award.”203 The Third Circuit has adopted the identical rule.204 Likewise, the First and Seventh

Circuits have said that “[disproportionality] alone does not make the

award unreasonable.” 205 The Eleventh Circuit has said that “use of a

multiplier [to achieve proportionality between damages and fees] as a

sole or dominant criterion” is improper.206 The Fifth Circuit agrees

that “the district court should avoid placing undue emphasis on the

amount recovered.”207

202. Cowan v. Prudential Ins., 935 F.2d 522, 526 (2d Cir. 1991).

203. Id.

204. Davis v. Southeastern Pa. Transp. Auth., 924 F.2d 51, 55 (3d Cir. 1991);

Northeast Women’s Ctr. v. McMonagle, 889 F.2d 466, 476–77 (3d Cir. 1989), cert.

denied, 494 U.S. 1068 (1990) (rejecting contention that disproportionality holding in

Rivera applies only in civil rights cases); Cunningham v. City of McKeesport, 807 F.2d

49, 53–54 (3d Cir. 1986) (rejecting suggestion that disproportionate fee award is permissible only if suit serves a substantial public interest), cert. denied, 481 U.S. 1049

(1987). See also Washington v. Philadelphia County Court of Common Pleas, 89 F.3d

1031, 1041 (3d Cir. 1996) (“a court may not diminish counsel fees in a section 1983

action to maintain some ratio between the fees and the damages awarded”).

205. Domegan v. Ponte, 972 F.2d 401, 421 (1st Cir. 1992), vacated and remanded

in light of Farrar v. Hobby, 506 U.S. 103 (1993); Cange v. Stotler & Co., 913 F.2d 1204,

1211 (7th Cir. 1990). See also Thomas v. Nat’l Football League Players Ass’n, 273 F.3d

1124 (D.C. Cir. 2001) (the fact that fees are nearly five times recovery does not make

them excessive).

206. Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). In a

later case, the court hinted that Rivera’s rejection of proportionality is limited to civil

rights actions. Andrews v. United States, 122 F.3d 1367, 1376 (11th Cir. 1997).

207. Von Clark v. Butler, 916 F.2d 255, 260 (5th Cir. 1990). But cf. Migis v.

Pearle Vision, 135 F.3d 1041 (5th Cir. 1998), discussed supra text accompanying notes

186–88.
Fee-Shifting Statutes 41

The First Circuit noted that disproportionality is nevertheless “a

relevant factor to be considered in setting the size of the fee.”208 The

court did not elaborate, but it appears that disproportionality could

come into play when determining if counsel spent an unreasonable

number of hours on the case in light of the probable outcome.209

Of course, extreme disproportionality may result when the plaintiff receives nominal damages only. As noted earlier, the Supreme

Court held that in such cases it may be appropriate to award the

plaintiff no fees or only low fees.210

v. Rejecting a Rule 68 settlement offer

In Marek v. Chesny,

211 the Supreme Court held that under the civil

rights fee-shifting statute, if the plaintiff rejects a settlement offer

made pursuant to Federal Rule of Civil Procedure 68, and the offer

proves more favorable to the plaintiff than the eventual judgment,

attorneys’ fees incurred after the offer are noncompensable. The

Court so held because the statute provides for fees “as part of the

costs,”212 thus bringing the fee award within the ambit of Rule 68’s

settlement rejection provision.213 If, under a different fee-shifting

208. Domegan, 972 F.2d at 421.

209. See Riverside v. Rivera, 477 U.S. 561, 590 (1986) (Rehnquist, C.J., dissenting) (“I find it hard to understand how an attorney can be said to have exercised

‘billing judgment’ in spending such huge amounts of time on a case ultimately worth

only $33,350.”). In the context of that case, Chief Justice Rehnquist’s argument was

rejected (i.e., the Court did not consider the hours expended unreasonable even

though the damage award was low). However, the Court did not reject the notion that

in some cases a small award would be relevant to a determination that counsel spent

excessive time on the case.

See also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir.

2001) (proportionality not an issue where prevailing party limited fee request to prevailing claim).

210. Farrar v. Hobby, 506 U.S. 103 (1992), discussed supra text accompanying

notes 189–94.

211. 473 U.S. 1 (1985).

212. 42 U.S.C. §1988 (2000).

213. Rule 68 states, in pertinent part, that “[a]t any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse

party an offer to allow judgment to be taken against the defending party....An offer

not accepted shall be deemed withdrawn....If the judgment finally obt ained by the
42 Awarding Attorneys’ Fees and Managing Fee Litigation

statute, fees are not considered costs, a different result should obtain.214 Of course, rejection of an informal settlement agreement not

made pursuant to Rule 68 does not affect an award of fees.215

vi. Factors reflected in the lodestar

District courts have been reversed for making downward adjustments

in attorneys’ fees awards based on factors that are subsumed in the

lodestar. In one case, the district court based a downward adjustment

on, inter alia, insufficient documentation and mediocre performance.

The Ninth Circuit said that these factors should be reflected in the

lodestar and are not a basis for adjusting the lodestar.216 Similarly, the

Tenth Circuit held that a district court abused its discretion in making

a downward adjustment based on simplicity of issues because that

factor should be reflected in the lodestar.217 Furthermore, it held that

to make a reduction based on simplicity “could lead to the incongruous result of attorneys being less likely to take a case where a person’s

civil rights have been obviously and clearly violated.”218

offeree is not more favorable than the offer, the offeree must pay the costs incurred

after the making of the offer.” Fed. R. Civ. P. 68.

214. See, e.g., Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1337 (4th

Cir.) (Rule 68 cannot preclude fees payment pursuant to 42 U.S.C. §2000e5(g)(2)(B)(i), but rejection of settlement offer can be considered in determining if or

how much fees should be awarded), cert. denied, 519 U.S. 993 (1996); Int’l Nickel Co.

v. Trammel Crow Distrib. Corp., 803 F.2d 150, 157 n.2 (5th Cir. 1986) (rejection of

Rule 68 offer did not preclude fee award where state fee-shifting statute authorized

fees “in addition” to costs rather than “as part of costs”).

215. See Cole v. Wodziak, 169 F.3d 486, 487 (7th Cir. 1999) (clear error to reduce lodestar because of oral settlement offer).

216. Cunningham v. Los Angeles, 859 F.2d 705, 710–13 (9th Cir. 1988) (court

acknowledged that in rare cases, quality of representation may be the basis for an adjustment to the lodestar, but found that in this case, there was no showing that the

mediocre performance was not subsumed in the lodestar).

217. Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990).

218. Id.
Fee-Shifting Statutes 43

vii. Other downward adjustments

The Seventh Circuit held that a downward adjustment in a fee award

for the plaintiff’s refusal to meet with a law clerk to discuss mediation

was an abuse of discretion.219

b. Upward adjustments

i. Novelty or complexity of issues

The Supreme Court has stated on several occasions that the novelty

and complexity of the litigation are reflected in the lodestar and

should not be the basis of an upward adjustment in attorneys’ fees.220

Therefore, the Eighth Circuit overturned a fee enhancement for

“complexity of the case and the absence of court precedent,” stating

that “counsel expended greater time and effort [on account of these

factors]. Consequently, counsel’s lodestar figure directly reflects [these

factors], and an enhancement...would constitute double counting.”221 Likewise, the Fifth Circuit rejected an enhancement based on

novelty and difficulty because

[a]ll counsel competent to handle a case such as this one are expected to be

able to deal with complex and technical matters; this expertise is reflected in

their regular hourly rate....Still further, the difficulty in the handling of

the case is adequately reflected in the number of hours billed.222

ii. Exceptional results or quality of representation

The Supreme Court has stated that the exceptional results or quality

of representation of a case are reflected in the lodestar and thus are

generally not a basis for a fee enhancement.223 In a rare case, in which

the success or quality of representation transcends what can be expected given the hourly rates and number of hours expended, the

219. Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593, 598 (7th Cir. 1999).

220. See, e.g., Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478

U.S. 546, 565 (1986) (Delaware Valley I); Blum v. Stenson, 465 U.S. 886, 898–900

(1984).

221. Hendrickson v. Branstad, 934 F.2d 158, 163 (8th Cir. 1991).

222. Shipes v. Trinity Indus., 987 F.2d 311, 321 (5th Cir. 1993).

223. Blum, 465 U.S. at 899.
44 Awarding Attorneys’ Fees and Managing Fee Litigation

lodestar may be enhanced.224 The burden of documenting the appropriateness of such an upward enhancement rests on the applicant. 225

If an enhancement is granted, it must be accompanied by “detailed

findings as to why the lodestar amount was unreasonable, and in particular, as to why the quality of representation was not reflected in the

[lodestar].”226

Lower courts have heeded the admonition that an upward adjustment for outstanding representation should be rare. One exceptional case elucidates the rule: Counsel was appointed for a jury trial

beginning three days later, took the case blind, and offered “superb

representation under the most adverse circumstances.”227 More typical was a Fifth Circuit opinion reversing an enhancement for exceptional results where the “district court asserted that the prevailing

rates for attorneys of similar skill, experience, and reputation were not

sufficient to compensate [counsel at bar], but it articulated no basis

for this finding.”228 Similarly, a First Circuit panel acknowledged the

“strength of the attorneys’ performance [and] the magnitude of their

triumph,” but it nevertheless reversed an upward adjustment: “[W]e

224. Id. at 898 –900. That such enhancements should be rare was emphasized in

Delaware Valley I, 478 U.S. at 567–68 (reversing upward adjustment because plaintiff

“presented no specific evidence as to what made the results it obtained during this

phase so ‘outstanding’ nor did it provide an indication that the lodestar figure...was

far below awards made in similar cases where the court found equally superior quality

of performance”).

225. Delaware Valley I, 478 U.S. at 567–68; Blum, 465 U.S. at 898.

226. Blum, 465 U.S. at 900. Thus, for example, in Shipes v. Trinity Industries, 987

F.2d 311, 322 (5th Cir. 1993), the Fifth Circuit said that the enhancement for exceptional results may have been warranted, since “victory was complete on all issues...resulted in a substantial award of monetary damages...and very importantly,

[provided] future protection against discrimination in the form of injunctive relief.”

The court noted that enhancement based on exceptional results is proper in rare cases

only and must be “supported by specific evidence and detailed findings by the district

court.” Id. at 322 n.9. It remanded the case for the district court to determine

“whether it is customary in the area for attorneys to charge an additional fee above

their hourly rates for an exceptional result after lengthy and protracted litigation.” Id.

at 322.

227. Hollowell v. Gravett, 723 F. Supp. 107, 110 (E.D. Ark. 1989).

228. Alberti v. Klevenhagen, 896 F.2d 927, 936 (5th Cir.), vacated on other

grounds, 903 F.2d 352 (5th Cir. 1990).
Fee-Shifting Statutes 45

see nothing in the record that indicates that the services and results

overshadowed, or somehow dwarfed, the lodestar.”229

iii. Other upward adjustments

Two circuits have held that an upward adjustment in the fee award is

appropriate to compensate for “undesirability” of the case.230 The

Ninth Circuit affirmed an upward adjustment in a case in which

counsel’s obligation to the class would continue for another ten

years.231

iv. Delay in payment

The Supreme Court has stated that a trial court has discretion to

compensate the award recipient for delay in payment.232 This can be

229. Lipsett v. Blanco, 975 F.2d 934, 942–43 (1st Cir. 1992).

230. See Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691,

697–99 (9th Cir. 1996) (holding that fee multiplier was appropriate in civil rights

action that successfully challenged constitutionality of Guam anti-abortion statute);

Alberti, 903 F.2d at 352 (enhancement of fee award to compensate for “case undesirability” was proper because it was required to attract competent counsel for prison

conditions litigation and it was supported by testimony from an expert economist on

how the local market treats such cases).

231. Wing v. Asarco Inc., 114 F.3d 986, 989 (9th Cir. 1997).

232. Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“an appropriate adjustment

for delay in payment—whether by application of current rather than historic hourly

rates or otherwise—is within contemplation of [section 1988]”). See also Gates v.

Deukmejian, 987 F.2d 1392, 1407 (9th Cir. 1992) (“length of the delay in payment...is a consideration in deciding whether an award of current rather than historic rates is warranted”); Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (appellate

court held that courts have discretion to compensate for delay by using “what rate is

necessary” and rejected past practice of applying current rates to recent phases of

protracted litigation and historic rates to earlier phases), cert. denied, 113 S. Ct. 978

(1993).

This rule does not apply in suits against the United States. In Library of Congress

v. Shaw, 478 U.S. 310 (1985), the Court held that the “no-interest” rule, preventing

recovery of interest from the United States absent a waiver of sovereign immunity,

applies to fee awards. Therefore, an award against the United States should generally

not be enhanced for delayed payment. This no-interest rule also does not apply to

suits against states. Jenkins, 491 U.S. at 280–82 & n.3.
46 Awarding Attorneys’ Fees and Managing Fee Litigation

achieved by calculating the lodestar in current dollars233 or by factoring in interest, usually at the prime rate,234 after the lodestar has been

computed using historic rates.235 Courts should be careful, however,

not to mix methods.236 When a delay is de minimus, a delay enhancement may not be necessary.237

The circuits are split on whether interest runs from the date the

trial court rules the party is entitled to fees or from the date the trial

court quantifies the fee.238

233. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir.

1988) (expressing preference for current rates).

234. See, e.g.,Alberti v. Klevenhagen, 896 F.2d 927, 938 (5th Cir.) (holding court

erred in using municipal bond interest rates instead of prime rate), vacated on other

grounds, 903 F.2d 352 (5th Cir. 1990); Lattimore v. Oman Constr., 868 F.2d 437, 438

n.2 (11th Cir. 1989) (approving use of IRS adjusted prime rate); Skelton v. Gen. Motors Corp., 860 F.2d 250, 255 (7th Cir. 1988), cert. denied, 493 U.S. 810 (1989) (courts

should use prime rate).

235. See Walker v. HUD, 99 F.3d 761, 773 (5th Cir. 1996) (6% enhancement for

delay approximating 2.96% interest compounded annually was not an abuse of discretion).

236. See, e.g., id. (noting court may use either unenhanced lodestar based on current rates or lodestar using historical rates plus a delay enhancement, but not both);

In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994)

(stating two ways to compensate for delay: (1) current rates or (2) historic rates plus

prime rate enhancement; and holding it an abuse of discretion to use hybrid of current rate and last billed rate).

237. Smith v. Freeman, 921 F.2d 1120, 1123 (10th Cir. 1990) (holding enhancement inappropriate where delay is de minimus and there is no showing that counsel’s

hourly rate increased from the time the action commenced).

238. Most circuits require interest calculation from the date of fee entitlement.

La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 332 & n.24 (5th Cir.), cert. denied,

516 U.S. 862 (1995); Friend v. Kolodzieczak, 72 F.3d 1386, 1391–92 (9th Cir. 1995);

BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045, 1052–53 (11th Cir.

1994); Jenkins v. Missouri, 931 F.2d 1273, 1276 (8th Cir.), cert. denied, 112 S. Ct. 338

(1991); Mathis v. Spears, 857 F.2d 749, 760 (Fed. Cir. 1988).

The Third, Seventh, and Tenth Circuits calculate interest from the date the fee

award is quantified. Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001) (discussing circuit split); MidAmerica Fed. Sav. & Loan Ass’n v. Shearson/American Express, Inc., 962 F.2d 1470, 1475 (10th Cir. 1992) (fees awarded as a discovery sanction); Fleming v. County of Kane, 898 F.2d 553, 565 (7th Cir. 1990) (selecting date of

quantification, without explanation).
Fee-Shifting Statutes 47

The Ninth Circuit held that a delay in payment caused by appeal

is solely redressed by an award of interest pursuant to 28 U.S.C.

§1961.239

Courts also have discretion to award interim fees in order to compensate for a delay in payment.240

v. Risk

In City of Burlington v. Dague,241 the Court held that risk or contingency of nonrecovery is not a basis for an upward enhancement. In

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,242 the

Court reversed a risk enhancement, but only four justices maintained

that such enhancements are always inappropriate. Justice O’Connor

voted to reverse the enhancement in the case at bar, but her concurrence maintained that enhancement for risk is sometimes in order.

Justice Blackmun’s dissent, joined by three justices, agreed that such

enhancements are sometimes in order but differed on what circumstances warrant them. The result, pre-Dague, was confusion in the

lower courts over whether and when to grant such enhancements.

vi. Nonmarket factors

Some upward adjustments have been reversed because they were

based on factors that did not pertain to the market rate for fees. For

example, the Fifth Circuit reversed an enhancement that was based on

potential conflicts of interest and the fact that the time expended on

the case prevented counsel from obtaining other clients; the court

239. Corder v. Brown, 25 F.3d 833, 838 (9th Cir. 1994) (abuse of discretion to

recalculate lodestar using current hourly rate).

240. Seesupra text accompanying notes 41–45.

241. 505 U.S. 557 (1992). The Dague Court construed the Solid Waste Disposal

Act, 42 U.S.C. §6972(e), and the Clean Water Act, 33 U.S.C. §1365(d), but the rationale applies to similar statutes as well. See, e.g., Murphy v. Reliance Standard Life

Ins. Co., 247 F.3d 1313, 1314–15 (11th Cir. 2001) (ERISA); Cann v. Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 318 (9th Cir. 1993) (ERISA).

242. 483 U.S. 711 (1987) (Delaware Valley II).
48 Awarding Attorneys’ Fees and Managing Fee Litigation

noted that these factors are not bases for increasing fee rates in the

private sector.243

5. Are there special considerations for awards to defendants?

When defendants request fee awards, the calculation is largely the

same, but additional factors come into play. Denying or reducing fees

is appropriate if the plaintiff is impecunious,244 and the Seventh Circuit finds a reduction in order if the defendant fails to mitigate (for

example, by moving for dismissal or summary judgment).245 A reduction for failure to mitigate could apply to prevailing plaintiffs as

well—since they are entitled to compensation only for “reasonable”

hours—but will more likely apply to defendants, since defending

against frivolous suits often does not require substantial time.246

6. What are the procedural aspects of fee disputes?

a. Case law

The Supreme Court has said little about the procedural aspects of fee

disputes, apart from its admonition that such disputes should not

spawn “a second major litigation.”247 The courts of appeals, however,

have established certain norms.

243. Alberti v. Klevenhagen, 896 F.2d 927, 934 (5th Cir.), vacated on other

grounds, 903 F.2d 352 (5th Cir. 1990).

244. See, e.g., Toliver v. County of Sullivan, 957 F.2d 47, 49–50 (2d Cir. 1992);

Alizadeh v. Safeway, 910 F.2d 234, 238 (5th Cir. 1990) (award may be reduced but not

eliminated); Miller v. Los Angeles, 827 F.2d 617, 621 n.5 (9th Cir. 1987); Munson v.

Friske, 754 F.2d 683, 697–98 (7th Cir. 1985); Charves v. Western Union, 711 F.2d 462,

465 (1st Cir. 1983); Durrett v. Jenkins Brickyard, 678 F.2d 911, 917 (11th Cir. 1982)

(award may be reduced but not eliminated). Although a defendant’s indigence may be

a special circumstance that warrants denial of an award to a prevailing plaintiff (see,

e.g.,Toliver, losing party’s resources may be taken into account in any fee case), the

ability to pay plays a more central role when defendants seek an award. See, e.g., Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1544 (11th Cir. 1985) (where defendant seeks award, plaintiff’s financial resources are a “thirteenth factor” to add to the

twelve Johnson factors).

245. Leffler v. Meer, 936 F.2d 981, 987 (7th Cir. 1991).

246. See Hamilton v. Daley, 777 F.2d 1207, 1215–16 (7th Cir. 1985).

247. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Fee-Shifting Statutes 49

Many courts agree that there is no need to hold an evidentiary

hearing in an attorneys’ fees case “when a record has been fully developed through briefs, affidavits, and depositions.”248 Several courts

have suggested that an evidentiary hearing is necessary in certain circumstances.249 The Eighth Circuit requires a hearing when “serious

factual disputes surround an application for attorney fees.”250 Likewise, the D.C. Circuit requires a hearing when “material issues of fact

that may substantially affect the size of the award remain in wellfounded dispute.”251 The Ninth Circuit has stated that “[w]hen a factual dispute exists as to whether a party prevailed, it is wise for the district court to conduct a hearing to resolve the conflict”252 and has suggested that a hearing is required when there are vigorous disputes over

the elements constituting the fee award.253 The Fifth Circuit requires a

hearing where there are “apparent factual disputes,”254 especially if

such a hearing is requested.255 The Eleventh Circuit maintains that a

hearing is not necessary if disputes concern “matters as to which the

courts possess expertise...[,such as the] reasonableness of the fee,

the reasonableness of the hours and the significance of the outcome,”

but one is necessary “where there is a dispute of material historical

248. Robinson v. City of Edmond, 160 F.3d 1275, 1286 (10th Cir. 1998). For

cases rejecting the contention that a hearing must be or should have been held, see

Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3, 7 (1st Cir. 1991); Carey v. Crescenzi, 923 F.2d 18, 22 (2d Cir. 1991); Norman v. Housing Authority of Montgomery,

836 F.2d 1292, 1303 (11th Cir. 1988); Bailey v. Heckler, 777 F.2d 1167, 1171 (6th Cir.

1985); Thomason v. Schweiker, 692 F.2d 333, 336 (4th Cir. 1982); National Association

of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C. Cir. 1982).

249. See Fed. R. Civ. P. 54(d)(2)(D), quoted infra text accompanying note 275,

which provides that district courts may adopt rules establishing special procedures for

resolving fee-related disputes without resorting to an extensive evidentiary hearing.

250. Herrera v. Valentine, 653 F.2d 1220, 1223 (8th Cir. 1981).

251. Concerned Veterans, 675 F.2d at 1330.

252. Church of Scientology v. United States Postal Serv., 700 F.2d 486, 494 (9th

Cir. 1983).

253. Id.

254. Henson v. Columbus Bank & Trust Co., 651 F.2d 320, 329 (5th Cir. 1981).

255. King v. McCord, 621 F.2d 205, 206 (5th Cir. 1980).
50 Awarding Attorneys’ Fees and Managing Fee Litigation

fact such as whether or not a case could have been settled without litigation or whether attorneys were duplicating each other’s work.”256

Several courts have held that if the district court orders an award

lower than that proposed and documented by the plaintiff, it must

provide an explanation.257 Numerous reversals have resulted because

the district court failed to explain how it arrived at a fee award.258 The

Eleventh Circuit has stated that the court “must articulate the decisions it made, give principled reasons for those decisions, and show its

calculation....If the court disallows hours, it must explain which

hours are disallowed and show why an award of these hours would be

improper.”259 The Sixth Circuit has stated that “the district court

must not only articulate findings of fact and conclusions of law regarding the inclusion of hours amounting to the fee awarded, but

those regarding the exclusion of hours as well.”260 The First Circuit has

stated that the court must “explicate the basis for its fee

awards....Although findings are necessary, however, they need not

be ‘infinitely precise,’...‘deluged with details,’ or even ‘fully articulated.’”261

Despite these norms, at least in certain circumstances most circuits permit a trial court to make deductions without identifying ex256. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.

1988).

257. See United Steelworkers v. Phelps Dodge, 896 F.2d 403, 406 (9th Cir. 1990);

Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S.

1049 (1987); Gekas v. Attorney Registration & Disciplinary Comm’n, 793 F.2d 846,

851 (7th Cir. 1986).

258. See, e.g., Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255 (10th Cir.

1998); Fleming v. Ayers & Assocs., 948 F.2d 993, 1000 (6th Cir. 1991); Frank Music

Corp. v. Metro-Goldwyn-Mayer, Inc. 886 F.2d 1545, 1556–57 (9th Cir. 1989), cert.

denied, 494 U.S. 1017 (1990); Student Pub. Interest Research Group of N.J., Inc. v.

AT&T Bell Labs., 842 F.2d 1436, 1456 (3d Cir. 1988); Norman, 836 F.2d at 1304;

Johnson v. New York City Transit Auth., 823 F.2d 31, 33 (2d Cir. 1987).

259. Norman, 836 F.2d at 1304.

260. Glass v. HHS, 822 F.2d 19, 22 (6th Cir. 1987).

261. Foley v. City of Lowell, 948 F.2d 10, 20 (1st Cir. 1991) (citing Foster, 943

F.2d at 141; Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir. 1991); Grendel’s Den,

Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984); United States v. Metro. Dist.

Comm’n, 847 F.2d 12, 16 n.4 (1st Cir. 1988); Gabriele v. Southworth, 712 F.2d 1505,

1507 (1st Cir. 1983); Jacobs v. Mancuso, 825 F.2d 559, 564 (1st Cir. 1987)).
Fee-Shifting Statutes 51

actly what hours it disallows. The Tenth Circuit endorses a “general

reduction of hours claimed in order to achieve what the court determines to be a reasonable number.”262 The Seventh Circuit held that a

district court acted within its discretion when it cut a lump sum rather

than evaluate every entry: This was a “practical means of trimming

fat” from an inadequately documented petition. 263 The D.C. Circuit

has endorsed this method,264 as have the Second and Ninth Circuits,

in cases in which the fee petition was voluminous.265 The Third Circuit, which once stated that the district court must identify all disallowed hours,266 permitted a 10% pro rata reduction in compensable

hours in light of the “complex and lengthy record” in a case. 267 The

Ninth Circuit emphasized that when a court makes a percentage reduction, it still must review the record, and it should explain why it

chose the particular percentage.268

The Seventh Circuit also approved a reduction arrived at by sampling billable time sheets. The district court had closely examined two

or three particular tasks described in the fee application and applied

its findings to the remaining hours claimed. The court informed

counsel that it would do this and gave opposing counsel the opportunity to suggest the specific work to be scrutinized. Although it affirmed the lower court’s decision, the Seventh Circuit noted that “it

might be a better practice to allow both the party opposing the fee

262. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986).

263. Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986). See also In re OhioSealy Mattress, 776 F.2d 646 (7th Cir. 1985). The Seventh Circuit expressed reservations about a percentage reduction where a great deal of money was at stake. In re

Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992) (common fund case).

264. Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc).

265. Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237–38 (2d Cir. 1987) (common fund case).

266. In re Fine Paper Antitrust Litig., 751 F.2d 562 (3d Cir. 1984).

267. Daggett v. Kimmelman, 811 F.2d 793, 797–98 (3d Cir. 1987) (suggesting,

however, that a different result would have obtained if the reduction had been significantly higher).

268. Gates, 987 F.2d at 1400.
52 Awarding Attorneys’ Fees and Managing Fee Litigation

award and the party seeking fees to suggest the individual tasks to be

sampled.”269

The Third Circuit has held that the district court may not decrease

a fee award based on factors not raised by the adverse party.270 A

Fourth Circuit case appears to hold differently.271 The Seventh Circuit

has stated that the plaintiff is entitled to be heard before the court

makes a significant reduction in requested hours.272

The Ninth and Tenth Circuits have rejected the contention that

the award of attorneys’ fees may be submitted to a jury.273 The Fifth

Circuit has held that there is no Seventh Amendment right to a jury

trial on fees, but it is permissible for a jury to determine fees.274

b. Rule 54

The procedural requirements and options available to judges faced

with fee disputes are set forth in Federal Rule of Civil Procedure

54(d)(2):

(C) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance

with Rule 43(e) or Rule 78. The court may determine issues of liability for

fees before receiving submissions bearing on issues of evaluation of services

for which liability is imposed by the court. The court shall find the facts and

state its conclusions of law as provided in Rule 52(a).

269. Evans v. City of Evanston, 941 F.2d 473, 477 (7th Cir. 1991), cert. denied,

112 S. Ct. 3028 (1992) (reiterating its approval of the sampling method in In re Continental Illinois Securities Litigation, 962 F.2d 566, 572–73 (7th Cir. 1992)). “Sampling”

is discussed infra text accompanying notes 510–13.

270. Bell v. United Princeton Props., 884 F.2d 713, 719 (3d Cir. 1989); Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir. 1985), vacated on other

grounds, 478 U.S. 1015 (1986).

271. Broyles v. Dir., 974 F.2d 508, 510 (4th Cir. 1992) (“Although the [defendant] has not challenged the number of hours claimed, we have the responsibility of

determining whether the fees sought are reasonable.”).

272. Smith v. Great Am. Rests., 969 F.2d 430, 440 (7th Cir. 1992).

273. MidAmerica Fed. Sav. & Loan Ass’n v. Shearson/American Express, Inc.,

962 F.2d 1470, 1475 (10th Cir. 1992); Hatrock v. Jones & Co., 750 F.2d 767, 776 (9th

Cir. 1984).

274. Resolution Trust v. Marshall, 939 F.2d 274, 279 (5th Cir. 1991). The court

did not say whether it is wholly within the discretion of the court to have a jury determine fees or whether consent of the parties is required.
Fee-Shifting Statutes 53

(D) By local rule the court may establish special procedures by which issues

relating to such fees may be resolved without extensive evidentiary hearings.

In addition, the court may refer issues relating to the value of services to a

special master under Rule 53 without regard to the provisions of Rule 53

(a)(1) and may refer a motion for attorneys’ fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.275

C. Issues on Appeal

The legal issues discussed above apply to the courts of appeals as well

as to the district courts. The following issues apply only to the courts

of appeals:

• the timing of the appeal;

• the scope of review; and

• whether the court of appeals may calculate the award.

1. Timing of appeal

In White v. New Hampshire,276 the Supreme Court held that a request

for attorneys’ fees is collateral to and separate from a decision on the

merits.277 In Budinich v. Becton Dickinson & Co.,278 the Court held

that a request for attorneys’ fees will not prevent an otherwise final

decision on the merits from becoming final for purposes of appeal.279

In Ramsey v. Colonial Life Insurance Co. of America,280 the Fifth

Circuit distinguished the Supreme Court cases, which concerned

original requests for attorneys’ fees, from the case before it, which involved a motion to reconsider attorneys’ fees. It held that a request to

reconsider a denial of attorneys’ fees was a Rule 59(e) motion that

tolled the thirty-day period for taking an appeal on the merits of the

case. In Ramsey, the district court had entered a judgment that included both a disposition on the merits and a denial of attorneys’ fees.

The Fifth Circuit stated, “a motion to reconsider a judgment will be

275. Fed. R. Civ. P. 54(d)(2)(C) and (D). Rule 54(d)(2)(E) exempts from the

amended rule a request for attorneys’ fees as a sanction.

276. 455 U.S. 445 (1982).

277. Id. at 451–52.

278. 486 U.S. 196 (1988).

279. Id. at 202–3.

280. 12 F.3d 472 (5th Cir. 1994).
54 Awarding Attorneys’ Fees and Managing Fee Litigation

considered a Rule 59(e) motion even where the request for reconsideration encompasses only that part of the judgment regarding attorney’s fees.”281

The Tenth Circuit, in contrast, held that a Rule 59(e) motion to

rescind an award of attorneys’ fees did not toll the time for appeal of

the merits.282 It distinguished the case from Ramsey, which concerned

a final disposition of the question of attorneys’ fees, that is, they were

denied. The Tenth Circuit case did not involve a final disposition of

attorneys’ fees; the amount of fees was not set. Relying on Budinich,

the Tenth Circuit noted that the fees issue remained “collateral to the

merits judgment, particularly when the judgment contemplates significant further proceedings concerning costs and attorney’s fees.”283

The Third, Sixth, and Ninth Circuits have rejected the contention

that Federal Rule of Appellate Procedure 39(d) requires an appeal

from a fee order to be filed within fourteen days.284 They held that

Rule 39(d) applies only to certain costs specified in the text of the

rule—briefs, appendices, and copies of records allowed under

39(c)—and not to attorneys’ fees. The D.C. Circuit has held to the

contrary.285 The First, Third, Fifth, Sixth, and Eleventh Circuits have

held that an appellate court’s order that each party bear its own costs

does not preclude an award of attorneys’ fees.286 The Second Circuit

has held to the contrary.287

281. Id. at 478.

282. Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995).

283. Id. at 567.

284. McDonald v. McCarthy, 966 F.2d 112, 114 (3d Cir. 1992); Kelley v. Metro.

County Bd. of Educ., 773 F.2d 677, 682 n.5 (6th Cir. 1985) (en banc), cert. denied, 474

U.S. 1083 (1986); N. Plains Res. Council v. EPA, 670 F.2d 847, 848 n.1 (9th Cir.

1982), vacated on other grounds, 464 U.S. 806 (1983).

285. Montgomery & Assocs., Inc. v. Commodity Futures Trading Comm’n, 816

F.2d 783, 785 (D.C. Cir. 1987) (motion for fees untimely because not filed within the

Rule 39(d) time period).

286. McDonald, 966 F.2d at 115–18; Chems. Mfrs. Ass’n v. EPA, 885 F.2d 1276,

1278 (5th Cir. 1989); Lattimore v. Oman Constr., 868 F.2d 437, 440 n.6 (11th Cir.

1989); Kelley, 773 F.2d at 681; Robinson v. Kimbrough, 652 F.2d 458, 463 (5th Cir.

1981); Farmington Dowel Prod. v. Forster Mfg. Co., 421 F.2d 61, 91 (1st Cir. 1969).

In so holding, these courts found that attorneys’ fees are distinct from the costs referred to in Rule 39. See also Terket v. Lund, 623 F.2d 29, 33 (7th Cir. 1980) (because

fees and costs are distinct, appeal from order taxing costs did not give court of appeals
Fee-Shifting Statutes 55

As a result of Supreme Court dicta,288 district courts generally

view proceedings on the merits as procedurally distinct from postjudgment fee proceedings. For example, they often enter separate orders on the merits and on the fee request.289 When this occurs, a separate notice of appeal from the fee decision must be filed.290

The Third, Fifth, Sixth, Eighth, and Eleventh Circuits have held

that an order determining liability for fees but not establishing the

amount is not a final, appealable order.291 The Seventh Circuit has

disagreed.292

Interim fee awards, which are based on success of the litigation in

part while other issues remain to be resolved, are generally not appealable.293 However, the Fifth, Sixth, Seventh, and Ninth Circuits

have held that they are appealable under the collateral order doctrine

jurisdiction over fee award). Some of these cases were decided before the Supreme

Court’s ruling in Marek v. Chesny, 475 U.S. 717 (1986), which held that fees are part

of costs under Rule 68. However, the Third and Sixth Circuits distinguished them

from Marek (see McDonald, 966 F.2d at 116; Kelley, 773 F.2d at 681–82 n.5), noting

that Fed. R. Civ. P. 68 is silent as to what constitutes costs, whereas Fed. R. App. P.

39(d) specifically enumerates costs and makes no mention of attorneys’ fees.

287. Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992).

288. See supra note 14 and accompanying text.

289. In Maristuen v. National States Insurance Co., 57 F.3d 673, 678 (8th Cir.

1995), the Eighth Circuit stated a preference for reviewing judgments that include a

decision both on the merits and on attorneys’ fees awards “whenever possible and

practical.”

290. McDonald, 966 F.2d at 118; Quave v. Progress Marine, 918 F.2d 33, 34 (5th

Cir. 1990); Art Janpol Volkswagen v. Fiat Motors of N. Am., 767 F.2d 690, 697 (10th

Cir. 1985); Exch. Nat’l Bank of Chicago v. Daniels, 763 F.2d 286, 291–92 (7th Cir.

1985).

291. Pennsylvania v. Flaherty, 983 F.2d 1267, 1276–77 (3d Cir. 1993); Echols v.

Parker, 909 F.2d 795 (5th Cir. 1990); Gates v. Cent. Teamsters Pension Fund, 788

F.2d 1341, 1343 (8th Cir. 1986); Morgan v. Union Metal, 757 F.2d 792, 794 (6th Cir.

1985); Fort v. Roadway Express, 746 F.2d 744, 747 (11th Cir. 1984). See also Andrews

v. Employees’ Ret. Plan, 938 F.2d 1245, 1248 (11th Cir. 1991) (court reaffirmed this

position but nevertheless entertained the appeal because, on the facts of the case, it

saw “no practical purpose in delaying resolution of the attorney’s fee issue”).

292. John v. Barron, 897 F.2d 1387, 1390 (7th Cir. 1990); Bittner v. Sadoff &

Rudoy Indus., 728 F.2d 820, 826–27 (7th Cir. 1984).

293. Shipes v. Trinity Indus., 883 F.2d 339 (5th Cir. 1989).
56 Awarding Attorneys’ Fees and Managing Fee Litigation

if the defendant would otherwise have trouble recovering its money

after the litigation.294

2. Scope of review

The Supreme Court has stated that district courts’ factual determinations with respect to a fee award should be reviewed deferentially under an “abuse of discretion” standard.295 The First Circuit

reviews a fee award only for a mistake of law or an abuse of discretion.296 The Third Circuit has said that the legal standards used by the

district court are given plenary review.297 Similarly, the Seventh,

Ninth, and Tenth Circuits have remarked that, although the amount

of a fee award is generally reviewed for abuse of discretion, whether

the plaintiff is entitled to any award is usually a question of statutory

interpretation, reviewed de novo.298

3. May the court of appeals calculate the award?

As a general rule, when a court of appeals finds a calculation of fees to

be erroneous, it remands the case for recalculation. However, on occasion the courts of appeals have decided the matter themselves in

order to further the administration of justice. The Seventh Circuit has

suggested that when a case has been in litigation for years, this “short294. People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134 (7th Cir.

1991); Shipes, 883 F.2d 339; Rosenfeld v. United States, 859 F.2d 717, 721–22 (9th Cir.

1988); Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 1988).

295. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). However, such review requires a district court to “provide a concise but clear explanation for its reasons for

the fee award.” Id.

296. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 336 (1st Cir. 1997).

297. Bell v. United Princeton Props., 884 F.2d 713, 718 (3d Cir. 1989); see also

Domegan v. Ponte, 972 F.2d 401, 406 (1st Cir. 1992), vacated and remanded on other

grounds, 113 S. Ct. 1378 (1993).

298. See, e.g., Jaffee v. Redmond, 142 F.3d 409, 413 (7th Cir. 1998); Schultz v.

Hembree, 975 F.2d 572, 574 n.2 (9th Cir. 1992); Homeward Bound, Inc. v. Hissom

Mem’l Hosp., 963 F.2d 1352 (10th Cir. 1992). The Ninth Circuit has also said that

“any elements of legal analysis and statutory interpretation which figure in the district

court’s [attorneys’ fees] decision are reviewable de novo.” Coalition for Clean Air v. S.

Cal. Edison, 971 F.2d 219, 229 (9th Cir. 1992), cert. denied, 113 S. Ct. 1361 (1993).
Fee-Shifting Statutes 57

cut” is justifiable.299 The First Circuit has found a remand unnecessary

if “the record is sufficiently developed that we can apply the law to the

facts before us” to recalculate the award in an essentially “mechanical”

manner.300 The Fifth Circuit has agreed.301 The Eleventh Circuit has

stated that it has authority to calculate a fee without a remand unless

an evidentiary hearing is required to clarify disputed facts.302

299. See Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988) (because remand

can “prolong litigation on what to begin with is a collateral matter,...[p]ractice has

trumped theory...[and] in many cases in this and other circuits the court of appeals

has made the adjustment in the fee award...without bothering to remand the case”).

300. Lipsett v. Blanco, 975 F.2d 934, 943 (1st Cir. 1992).

301. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 326 (5th Cir. 1995)

(modifying fee award without remand).

302. ACLU of Ga. v. Barnes, 168 F.3d 423, 431–32 (11th Cir. 1999). See also Rum

Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994) (finding authority

to calculate a fee award without a remand, but not enough information on record to

do so).
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59

 II

Common Fund

 and Substantial Benefit

A. Common Fund

A brief review of four Supreme Court cases establishes the perimeters

of the common fund doctrine. In the 1881 case of Trustees v.

Greenough,303 a bondholder’s suit resulted in recovery of trust assets

and realization of dividend payments to himself and other bondholders. The Court held that he should be reimbursed from the trust fund

for his attorneys’ fees lest the other bondholders be unjustly enriched

at his expense.304 A few years later, in Central Railroad & Banking Co.

v. Pettus,305 the Court expanded the common fund doctrine, holding

that the plaintiff’s counsel in a class action not only had standing to

seek fees reimbursement for his client but also was eligible for an

award of his own (not limited to what the client owed him). The

Court reasoned that otherwise, the class members would be unjustly

enriched at counsel’s expense.

Greenough and Pettus involved a kind of recovery that differs fundamentally from statutory fee shifting in that fees are shared by the

beneficiaries of the lawsuit rather than shifted to the losing party.

They established that the common fund doctrine gives rise to two

303. 105 U.S. 527 (1881).

304. The Court suggested that fees might also be recovered directly from the

other beneficiaries. Id. at 532. However, there are no reported cases in which such a

recovery has been ordered. Cf. Vincent v. Hughes Air W., 557 F.2d 759, 770 (9th Cir.

1977) (“any claim must be satisfied out of the fund”).

305. 113 U.S. 116 (1885).
60 Awarding Attorneys’ Fees and Managing Fee Litigation

kinds of claims: claims by plaintiffs to have their legal costs shared and

claims by attorneys for an award other than that paid or owed by the

client.306 (As in statutory fee-shifting cases, intervenors and their attorneys are also eligible for an award.307) Each of the two kinds of

claims prevents unjust enrichment of the beneficiaries.

Although many common fund cases are class actions, like Pettus,

the common fund doctrine is not limited to class actions. This point

was clarified and the common fund doctrine further expanded in

Sprague v. Ticonic,308 which involved a trust fund that was jeopardized

when a bank went into receivership. After the plaintiff successfully

sued for a lien establishing her right to recover from the trust, she

sought reimbursement of attorneys’ fees from the trust. Although the

suit had only indirectly established the rights of others, and had not

created a fund, the Court held that fees were in order:

Whether one sues representatively or formally makes a fund available for

others may, of course, be relevant circumstances in making the fund liable

for his costs in producing it. But when such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation—the

absence of an avowed class suit or the creation of a fund, as it were, through

stare decisis rather than through a decree—hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation.309

Sprague notwithstanding, most common fund cases are class actions. In Boeing v. Van Gemert310 the Supreme Court held that the un306. See Skelton v. Gen. Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988) (“Thus,

in statutory fee-shifting cases, only parties (usually plaintiffs) may seek reimbursement whereas in common fund cases attorneys may seek compensation.”), cert.

denied, 493 U.S. 810 (1989).

307. See, e.g., Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1302 (2d Cir.

1990); Kargman v. Sullivan, 589 F.2d 63, 68–69 (1st Cir. 1978); Lindy Bros. Builders,

Inc. v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 112 (3d Cir. 1976). The

court must, of course, assess whether the intervenor made a meaningful contribution.

See, e.g., Bandes v. Harlow & Jones, 852 F.2d 661, 671 (2d Cir. 1988) (fees denied intervenors who “did nothing to create the fund”); Lindy Bros., 540 F.2d at 112 (intervenors awarded fees because “the financial strength they added to the plaintiff

class...helped to force the settlement”).

308. 307 U.S. 161 (1939).

309. Id. at 166.

310. 444 U.S. 472 (1980).
Common Fund and Substantial Benefit 61

claimed portion of a fund established by a class action may be tapped

for a fee award. It rejected the contention that the nonclaimants cannot be considered beneficiaries, reasoning that entitlement to the fund

makes all class members beneficiaries for the purposes of the common

fund doctrine.311

Despite these cases, application of the common fund doctrine will

not invariably be simple. Like fee-shifting cases, common fund cases

require a three-step inquiry: (1)whether there is entitlement to a fee

award; (2)how the award should initially be calculated; and

(3)whether any adjustment to the presumptive award should be

made.

B. Class Actions

Federal Rule of Civil Procedure 23(h)312 governs motions for attorneys’ fees awards in class actions. Rule 23(h) does not mandate Rule

54(d)(2)(B)’s313 fourteen-day filing requirement. Rather, the court

sets the time frame in which to file a motion for attorneys’ fees.

1. Determining whether an award is in order

a. Is there a fund?

When a party requests fees from a common fund, the threshold question is whether a common fund exists. On occasion, parties seek

awards when there is no common fund.314 The requirement of a

common fund is not applied mechanically. For example, the D.C. Circuit rejected a contention that “the [common fund] doctrine is inap311. The Ninth Circuit held that the entire class action settlement fund should

be the basis for a fee award even if the unclaimed portion of the fund reverts back to

the defendant; the defendant should have negotiated a lower settlement fund if it

wished to limit fees. Williams v. MGM-Pathe Communications Co., 129 F.3d 1026,

1027 (9th Cir. 1997) (per curiam). Accord Waters v. Int’l Precious Metals Co., 190

F.3d 1291, 1292–97 (11th Cir. 1999).

312. Fed. R. Civ. P. 23(h).

313. Fed. R. Civ. P. 54(d)(2)(B).

314. See, e.g., Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d 206, 211 (2d

Cir.), cert. denied, 484 U.S. 908 (1987) (“The award appellants seek would not be payable out of any ‘fund.’”); Holbrook v. Pitt, 748 F.2d 1168, 1175 (7th Cir. 1984) (“the

common fund doctrine cannot be applied because there is no ‘common fund’”).
62 Awarding Attorneys’ Fees and Managing Fee Litigation

plicable because ‘there is literally no common fund’”; although retroactive salary payments were paid out of several different appropriations, “[i]n [the court’s] view [this] is a mere technicality....The

entire sum paid to federal employees is the ‘common fund’...to

which the request or contribution is applicable.”315

b. Did the lawsuit bring about or enhance the fund, or create access

to it?

In common fund cases, it is not necessary for the court to determine

whether the plaintiff achieved success sufficient to warrant a fee

award: The fund itself signifies success. The plaintiff must, however,

establish that its suit was a “but for” cause of the fund (or at least ensured access to the fund). One case illustrates this requirement.316 A

Nicaraguan company paid an American company for a shipment of

goods. The shipment was not made, in part because the Nicaraguan

company was taken over by its government. The former owner sought

return of the payment, and Alvarez, a representative of the Nicaraguan government, intervened. The American company interpleaded

the money, and the two claimants—the former owner and Alvarez—went to trial. The former owner prevailed, but the trial court

granted Alvarez attorneys’ fees from the payment, presumably because

the fund benefited the unrepresented shareholders and Alvarez had

“demonstrated some solicitude” for them.317 The Second Circuit reversed this decision because Alvarez “did nothing to create the common fund.”318

The court could have stressed that Alvarez not only did not “create” the fund but also played no role in benefiting the shareholders

(since the fund would have become available even if he had not intervened). This distinction is important because the common fund doctrine does not require that the suit bring about a fund ab initio. The

leading Supreme Court cases involved funds that predated the suit.319

315. Nat’l Treasury Employees Union v. Nixon, 521 F.2d 317, 320–21 (D.C. Cir.

1975).

316. Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988).

317. Id. at 671.

318. Id.

319. See supra text accompanying notes 303–11.
Common Fund and Substantial Benefit 63

The D.C. Circuit has stated that the common fund doctrine applies to

actions that “create[ ], enhance, preserve, or protect [a] fund.”320 The

Ninth Circuit has said it applies if the plaintiff “created, discovered,

increased or preserved” a fund.321 Such formulations are underinclusive. The common fund doctrine has also been applied in cases that

resulted in a fund’s reapportionment 322 or distribution.323 The doctrine may apply, then, if a lawsuit creates a fund or ensures access to

funds.324

The plaintiff’s efforts need not involve an actual adjudication. Recovery can be appropriate when the common fund results from a

formal settlement, 325 or when the defendant takes remedial action that

moots the case.326 In addition, a common fund recovery is arguably

available from a fund created by a legislative or administrative action

spurred by the plaintiff’s lawsuit.327 Finally, in one case, the Supreme

320. Abbott, Puller & Myers v. Peyser, 124 F.2d 524, 525 (D.C. Cir. 1941).

321. B.P. N. Am. Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975, 977 (9th

Cir.), cert. denied, 479 U.S. 849 (1986).

322. See, e.g., United States v. ASCAP, 466 F.2d 917, 918 (2d Cir. 1972); Nolte v.

Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931); Dorfman v. First Boston Corp.,

70 F.R.D. 366 (E.D. Pa. 1976).

323. See, e.g., Powell v. Pa. R.R., 267 F.2d 241 (3d Cir. 1959); Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir.), cert. denied, 355 U.S. 869 (1957).

324. See Sprague v. Ticonic, 307 U.S. 161, 166–67 (1939) (the fact that fund was

not “formally established by litigation” not decisive as long as suit “makes a fund

available for others”). The breadth of the doctrine is occasionally overlooked. See, e.g.,

Feick v. Fleener, 653 F.2d 69, 78 (2d Cir. 1981) (rejecting award from an estate for

attorney whose work during protracted litigation enhanced the estate; the court denied fees because no fund “was created by [his] efforts,” overlooking the fact that the

common fund doctrine can apply when litigation enhances an existing fund).

325. See, e.g., Kopet v. Esquire Realty, 523 F.2d 1005, 1008 (2d Cir. 1975).

326. See, e.g., Koppel v. Wien, 743 F.2d 129, 135 (2d Cir. 1984) (fees appropriate

even though “no judgment or consent decree was entered and the complaint was dismissed as moot”); Reiser v. Del Monte Props., 605 F.2d 1135, 1139 (9th Cir. 1979)

(fees not precluded where defendant voluntarily takes action, favorable to plaintiff,

that moots suit).

327. See Winton v. Amos, 255 U.S. 373, 393 (1921) (fee recovery appropriate

where attorney persuaded legislative and executive branches to restore lands and

funds to his clients). Winton has rarely been cited, and it was rejected by the D.C.

Circuit sub silentio in Whittier v. Emmett, 281 F.2d 24, 32 (D.C. Cir. 1960), cert. denied, 364 U.S. 935 (1961) (“claim for compensation for services rendered in sponsor-
64 Awarding Attorneys’ Fees and Managing Fee Litigation

Court held that an award was appropriate for defendants whose litigation efforts preserved a fund.328

c. Are there beneficiaries?

In a number of cases, awards have been denied because there were no

bona fide beneficiaries of the fund other than the plaintiff. In one

case, a minority shareholder prevailed in a derivative suit against the

officers of the corporation, who were also the other shareholders. The

officers were ordered to reimburse the corporation for the diminution

of stock value caused by their breach of fiduciary duty. The Fifth Circuit found a fee award inappropriate because “the effect of such an

award is to shift the liability for those fees to the defendant,”329

whereas the common fund doctrine aims to spread the fee among

beneficiaries. The court elaborated:

The trial court’s judgment on the derivative claim in this case creates no

common fund benefiting the remaining former...shareholders other than

[the plaintiff]. Rather, the other shareholders are cast in judgment in the

corporation’s favor. Therefore, the effect of the award of attorney’s fees out

of the so-called derivative recovery is to increase the defendant’s liability to

include the plaintiff’s attorney’s fees. The award of attorney’s fees to the

plaintiff who successfully litigates the corporation’s claim is not designed

“to saddle the unsuccessful party with the expenses but to impose them on

the class that has benefited from them.”330

In a First Circuit case, the plaintiff, Joseph Catullo, and the defendant, Conservit, Inc., a Maryland corporation, agreed to form a company, Barlof Salvage, to do business in Puerto Rico. When Conservit

began to compete with Barlof, Catullo brought a derivative suit on

behalf of Barlof. Catullo prevailed and sought fees from the judgment

recovered to “avoid burdening the plaintiff and unjustly enriching the

only other shareholder—Conservit.”331 The First Circuit rejected the

ing favorable legislation [does] not deserve prolonged discussion”). But see Paris v.

Metro. Life Ins., 94 F. Supp. 792 (S.D.N.Y. 1947) (ordering recovery from fund created by action of administrative agency).

328. See Rude v. Buchhalter, 286 U.S. 451, 461 (1932).

329. Junker v. Cory, 650 F.2d 1349, 1352 (5th Cir. 1981).

330. Id. (quoting Mills v. Elec. Auto-lite, 396 U.S. 375, 396–97 (1970)).

331. Catullo v. Metzner, 834 F.2d 1075, 1083 (1st Cir. 1987).
Common Fund and Substantial Benefit 65

request because the “[p]laintiff is the sole shareholder to benefit from

the derivative action. The only other party in interest, Conservit, must

advance the money which plaintiff now proclaims to be a common

fund.”332

In Sprague v. Ticonic,333 the Supreme Court found the common

fund doctrine applicable where the petitioner established the claims of

non-plaintiffs through stare decisis. Lower courts have applied this

doctrine in cases resembling Sprague, that is, cases in which the plaintiff and the beneficiary had similar claims on a particular fund.334

Courts do not apply the common fund doctrine whenever a suit establishes a rule of law that later brings success to others.335 A Second

Circuit case illustrates this limitation. New York farmers who sold

milk in Connecticut challenged a government regulation that gave a

larger subsidy to Connecticut farmers. When they prevailed by relying

on a Supreme Court decision that invalidated a similar regulation (for

farmers in other states), the attorney who won in the Supreme Court

case intervened in the Second Circuit case to petition for fees. The

court rejected the “novel assertion that attorneys who are victorious in

one case may...claim fees from all subsequent litigants who might

rely on it or use it in one way or another.”336

332. Id. at 1084. See also In reChicago, Milwaukee, St. Paul & Pac. R.R., 840 F.2d

1308, 1318–19 n.9 (7th Cir. 1988) (common fund recovery impermissible where it

effectively shifts fees to opposing party); McQuiston v. Marsh, 707 F.2d 1082, 1085

(9th Cir. 1983) (same).

333. 307 U.S. 161 (1939). See supra text accompanying notes 308–09.

334. See, e.g., City of Klawock v. Gustafson, 585 F.2d 428, 431 (9th Cir. 1978)

(affirming fees based on Sprague’s stare decisis rule because “[s]pecific property was in

the hands of the same defendant which had lost the case and that defendant’s duty

under the previous decision was clear”).

335. See Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156, 164

n.13 (9th Cir. 1966) (Sprague usually applied “in cases having closely analogous

facts”), aff’d, 386 U.S. 714 (1967). In Sprague itself, the Court cautioned without

elaboration that fees for a suit benefiting others via stare decisis are limited to “exceptional cases” involving “dominant reasons of justice.” Sprague, 307 U.S. at 167.

336. Cranston v. Hardin, 504 F.2d 566, 580 (2d Cir. 1974); accord Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969) (per curiam) (rejecting

claim of lawyer who successfully challenged discriminatory user fees and sought attorneys’ fees when another foreign carrier benefited from the decision in a subsequent

suit).
66 Awarding Attorneys’ Fees and Managing Fee Litigation

The Ninth Circuit expanded Sprague in one respect. In City of

Klawock v. Gustafson,

337 the underlying decision that benefited other

parties was made by a district court (with no appeal taken) and thus

lacked stare decisis. The Ninth Circuit held that a fee award was nevertheless in order and found that it would be unfair to penalize the

plaintiff because the case did not go up on appeal.338 However, in a

similar case the Second Circuit reached a different conclusion and

denied fees because “it is at least doubtful whether [the plaintiff’s] unreviewed judgment would work as a collateral estoppel in favor of another similarly situated plaintiff.”339

d. Can fees be shifted to the beneficiaries with precision?

A common fund fee award must result in costs being “shifted with

some exactitude to those benefiting.”340 Thus, courts deny awards

when there are only a few beneficiaries and other parties would be

harmed by recovery of fees from the fund. In one case, the plaintiff

sued a pension plan, challenging its procedures for awarding disability

benefits. The plaintiff prevailed, but the Second Circuit found a fee

award inappropriate because “the financial benefit of [the plaintiff’s]

success...accrue[s] to a relatively few members of the Plan, which

provides pension as well as disability benefits.”341 Similarly, the Ninth

Circuit denied fees in a suit that stopped the construction of a state

highway and thereby preserved the state highway fund. The fund

could not be shifted “proportionately and accurately” to the beneficiaries because “it would be impossible to determine which beneficiary

bears what costs, since residents and taxpayers pay varying amounts

into the fund.”342

As the Ninth Circuit case illustrates, courts generally reject claims

for a common fund recovery out of the government treasury; the

337. 585 F.2d 428 (9th Cir. 1978).

338. Id. at 431.

339. Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112, 115 (2d Cir. 1978).

340. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 265 n.39

(1975).

341. Fase, 589 F.2d at 115.

342. Southeast Legal Def. Group v. Adams, 657 F.2d 1118, 1123 (9th Cir. 1981).
Common Fund and Substantial Benefit 67

award will come at the expense of all taxpayers, not solely the beneficiaries of the lawsuit.343

The paradigmatic situation in which a fee award would be fairly

and precisely spread among beneficiaries is a class action in which

“each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered

on his behalf.”344 Of course, plaintiffs in non-class actions that achieve

a similar result are also eligible for common fund awards.

343. See, e.g., Brzonkala v. Morrison, 272 F.3d 688, 692 (4th Cir. 2001); In re Hill,

775 F.2d 1037, 1041 (9th Cir. 1985); Grace v. Burger, 763 F.2d 457, 459 (D.C. Cir.),

cert. denied, 474 U.S. 1026 (1985); Jordan v. Heckler, 744 F.2d 1397, 1400 (10th Cir.

1984). Jordan is illustrative. Because the suit forced the Department of Health and

Human Services to make a change in policy that would increase the number of Social

Security recipients, the trial court awarded fees under the common fund doctrine. The

Tenth Circuit reversed the decision. Common fund awards must be borne by beneficiaries, but “[a]n award of fees against the Secretary does not have such a consequence. If the award is taken from the Social Security Trust Fund it will not in any

way reduce the payments to [the beneficiaries]....The Trust Fund comes from Social Security taxes on all workers and from general Treasury funds. It is simply an

award against the Government or all persons who pay Social Security taxes and is not

related or restricted to [the beneficiaries].”

In similar circumstances the D.C. Circuit approved an award of fees from a state

treasury. Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984). Yet it cast doubt

about this decision sub silentio a year later, denying an award in a substantial benefit

case because it “‘would ultimately be born[e] by all taxpayers, rather than just those

benefiting [from the suit].’” Grace, 763 F.2d at 459 (quoting Trujillo v. Heckler, 587 F.

Supp. 928 (D. Colo. 1984)).

In some common fund and substantial benefit cases, plaintiffs argued that all

citizens or taxpayers did benefit. The courts denied fees, however, because if awards

were permitted on that basis, the common fund and substantial benefit doctrines

“would merge into the private-attorney general concept rejected in Alyeska.” Satoskar

v. Ind. Real Estate Comm’n, 517 F.2d 696, 698 (7th Cir.), cert. denied, 423 U.S. 928

(1975). Accord Brzonkala, 272 F.3d at 691; Hill, 775 F.2d at 1041–42; McQuiston v.

Marsh, 707 F.2d 1082, 1085 (9th Cir. 1983); Stevens v. Mun. Court, 603 F.2d 111, 113

(9th Cir. 1979).

344. Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980). The Court noted that,

“[a]lthough the full value of the benefit to each absentee member cannot be determined until he presents his claim, a fee awarded against the entire judgment fund will

shift the costs of litigation to each absentee in the exact proportion that the value of

his claim bears to the total recovery.” Id. However, not all class actions result in an

“entire judgment fund,” as was the case in Boeing . A class action may establish liability
68 Awarding Attorneys’ Fees and Managing Fee Litigation

e. Does the court have “control” of the fund?

In Trustees v. Greenough, the Supreme Court stated that the common

fund must be “subject[ ] to the control of the court.”345 In Boeing Co.

v. Van Gemert, the Court explained that this means the court must

have “[j]urisdiction over the fund involved in the litigation.”346 This

criterion is generally satisfied by jurisdiction over a party that controls

the fund,347 usually the defendant. Therefore, absence of control, by

itself, is rarely the basis for denial of a fee award.348

f. Does some other circumstance militate against an award?

Even when the above conditions are met, circumstances involving a

statute that manifests congressional intent not to share fees or involving beneficiaries of the plaintiff’s suit with adverse interests may

render a fee award improper.

i. Congressional intent

In Bloomer v. Liberty Mutual Insurance,349 an injured longshoreman

successfully sued the shipowner. Since the plaintiff was required by

and leave each class member’s claim to be determined individually without establishing a total judgment amount. In such circumstances, the common fund doctrine presumably does not apply—there is no common fund—and the attorneys who prosecute the individual claims would be compensated by the individual claimants. Of

course, gray areas may arise (in terms of the relief awarded and the relationship between class members and class counsel), and courts may wish to consider flexible

application of the common fund doctrine to prevent unjust enrichment of some class

members or inadequate compensation for class counsel.

345. 105 U.S. 527, 536 (1881).

346. Boeing, 444 U.S. at 478.

347. See Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorney Fees

§2.03, at 2-27 to 2-34.1 (1992) (discussing various ways in which a court may exercise

control of a fund).

348. As one commentator puts it, the control criterion amounts to whether there

are sufficient means “at the disposal of the court to effectuate the end of fairly apportioning the legal fees.” Id. at 2-28. Thus, the issue of control is generally subsumed in

the matters already discussed in the text—whether there is a fund, and beneficiaries,

and whether a fee award would fairly spread the costs among the beneficiaries (and

only them). By contrast, the “control” criterion has independent significance in substantial benefit cases. See infra text accompanying notes 459–63.

349. 445 U.S. 74 (1980).
Common Fund and Substantial Benefit 69

law to give part of his recovery to the stevedore to offset payments that

the stevedore had made to the plaintiff through workers’ compensation, the plaintiff sought to have the stevedore pay a portion of his

attorney’s fees. He argued that his judgment against the shipowner

created a common fund from which the stevedore would draw an ascertainable amount. Although the usual conditions of a common fund

recovery were met, the Supreme Court denied recovery because the

Longshoremen’s and Harbor Workers’ Compensation Act addressed

the longshoreman-stevedore-shipowner triangle and did not seem to

contemplate a distribution of fees.350

While acknowledging that a statute governing a particular area

can vitiate a common fund award if it manifests congressional intent

not to share fees,351 the Second, Third, and Seventh Circuits have held

that, absent such a showing of legislative intent, the fact that a feeshifting statute applies to a particular case does not preclude recovery

from a common fund.352 No courts have held to the contrary.

350. Similarly, the Seventh Circuit interpreted a Supreme Court dictum as suggesting that common fund recoveries are inappropriate in Title VII and civil rights

cases. Evans v. City of Evanston, 941 F.2d 473, 479 (7th Cir. 1991), cert. denied, 112 S.

Ct. 3028 (1992). In Blanchard v. Bergeron, 489 U.S. 87, 95 (1989), the Supreme Court

stressed that, under the civil rights fee-shifting statute, damages should not be overemphasized and nonmonetary relief should not be short-changed. The Seventh Circuit interpreted this analysis as suggesting the impropriety of common fund awards in

Title VII and civil rights cases because such awards could “skew the incentives of

plaintiffs’ lawyers toward damages rather than equitable remedies.” Evans, 941 F.2d at

479. It did not, however, decide the issue, because the district court had made a

statutory award and was “correct to rule that it was unnecessary to allow both a recovery from the defendants and the common fund in this case.” Id.

351. See, e.g., Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir.

1990) (“obviously, if, under a particular combination of facts, the operation of the

equitable fund doctrine conflicts with an intended purpose of a relevant fee-shifting

statute, the statute must control and the...doctrine must be deemed abrogated to

the extent necessary to give full effect to the statute”).

352. Id. at 1327; Skelton v. Gen. Motors Corp., 860 F.2d 250, 255 (7th Cir. 1988),

cert. denied, 493 U.S. 810 (1989); In re Fine Paper Antitrust Litig., 751 F.2d 562, 583

(3d Cir. 1984). See infra text accompanying notes 379–80 (discussing situations in

which recovery could be awarded pursuant to either a fee-shifting statute or the

common fund doctrine).
70 Awarding Attorneys’ Fees and Managing Fee Litigation

ii. Adverse interests

In certain circumstances, fee sharing is inappropriate because the

other beneficiaries of the plaintiff’s suit had interests adverse to those

of the plaintiff.353 In the seminal case of Hobbs v. McLean,354 the

plaintiff obtained a judgment on behalf of a bankrupt. Believing that

the sum recovered rightly belonged to them, and fearing that the

plaintiff would distribute it to creditors, two other parties brought suit

against the plaintiff and won. The plaintiff then moved for attorneys’

fees for his efforts in winning the original judgment. The Supreme

Court denied the motion, finding the common fund doctrine inapposite in this situation:

We see no reason why [they] should pay [him], who, instead of aiding them

in securing their rights, has been an obstacle and obstruction to their enforcement. The services for which [he] seeks pay...were not rendered in

their behalf, but in hostility to their interest. When many persons have a

common interest in a trust property or fund, and one of them, for the

benefit of all and at his own cost and expense, brings a suit for its preservation or administration, the court of equity...will order that the plaintiff be

reimbursed his outlay from the property of the trust, or by proportional

contribution from those who accept the benefits of his efforts. But where

one brings adversary proceedings to take the possession of trust property

from those entitled to it...and fails in his purpose, it has never been

held...that such person had any right to demand reimbursement.355

This common fund doctrine was applied in United States v. Tobias.356 The U.S. government condemned territory and named Johnson, an owner of the land, in its complaint. Although the parties negotiated, Tobias, who claimed to own a portion of the land,

intervened. A settlement was reached in which the government deposited a sum in court and left Johnson and Tobias to fight over it.

Johnson and Tobias went to trial, and a judgment was entered splitting the fund between them. Johnson moved for Tobias to defray his

353. For a discussion of cases in which courts held that there were no beneficiaries (other than the plaintiff) because the alleged beneficiaries were actually harmed by

the suit, see supra text accompanying notes 329–32. In the cases discussed in this section, others do benefit from the common fund.

354. 117 U.S. 567 (1886).

355. Id. at 581–82.

356. 935 F.2d 666 (4th Cir. 1991).
Common Fund and Substantial Benefit 71

fees, claiming his negotiations with the government increased the

value of the fund, which benefited Tobias. The district court granted a

fee award, but the Fourth Circuit, citing Hobbs, reversed the decision:

“A party may not recover and try to monopolize a fund, but then,

failing in the attempt, declare it a ‘common fund’ and obtain his expenses from those whose rightful share of the fund he sought to appropriate.”357

In contrast, in a Second Circuit case, the appellate court held that

the plaintiff’s opposition to the class settlement that eventually took

place was not a ground for denying the plaintiff attorneys’ fees from

the settlement pot because the plaintiff had made a substantial contribution to the class.358 This case is reconcilable with Hobbs and its

progeny because, although the plaintiff opposed the particular settlement that was made, its interests and posture in the litigation were not

in opposition to those of the class.

iii. Fund claimants that were represented

Several appellate courts have held that when beneficiaries of the

common fund are themselves represented by counsel, they are

“deemed not to have taken a ‘free ride’ on the efforts of another’s

counsel,” and their portion of the fund should therefore not be used

to defray the plaintiff’s legal costs.359 If lead counsel are appointed and

do a disproportionate amount of the work, courts may waive this

rule.360

357. Id. at 668. The court rejected Johnson’s contention that he and Tobias were

not adverse parties, since both were named defendants in the condemnation action.

“We will not adopt such a mechanical test. This case was a pure title dispute between

the ‘co-defendants.’ No equitable doctrine will ignore the reality of the controversy by

looking only to which side of the ‘v’ the disputants are on.” Id.

358. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990).

359. E.g., Tobias, 935 F.2d at 668; Vincent v. Hughes Air W., 557 F.2d 759, 771

(9th Cir. 1977); In re Air Crash Disaster at Fla. Everglades, 549 F.2d 1006, 1019 (5th

Cir. 1977).

360. Tobias, 935 F.2d at 668; Vincent, 557 F.2d at 772.
72 Awarding Attorneys’ Fees and Managing Fee Litigation

2. Calculating the amount of an award

a. What method should be used?

i. Percentage v. lodestar

Courts have traditionally determined the amount of common fund

fee awards by considering several factors, especially the size of the

fund, and frequently have based awards on what they consider a reasonable percentage of the fund. In the early 1970s, courts began

moving away from this practice and toward the lodestar method.361

However, in the 1980s two developments sparked reconsideration of

the lodestar in common fund cases. First, in a footnote in Blum v.

Stenson,362 the Supreme Court distinguished between the calculation

of fees under fee-shifting statutes and calculation under the “‘common fund doctrine,’ where a reasonable fee is based on a percentage

of the fund bestowed on the class.”363 Second, in 1985, a Third Circuit

task force on attorneys’ fees recommended the percentage method in

common fund cases.364

In large part as a result of the Blum dictum and the task force’s

recommendations, the percentage method has been gaining favor in

common fund cases. The D.C. and Eleventh Circuits require the percentage method.365 The First, Second, Sixth, Seventh, Eighth, Ninth,

and Tenth Circuits have stated that the district court may use either

the percentage method or the lodestar method.366 The Seventh Circuit

361. The seminal case was Lindy Brothers Builders, Inc. v. American Radiator &

Standard Sanitary Corp., 487 F.2d 161, 166–69 (3d Cir. 1973). Other courts quickly

followed suit.

362. 465 U.S. 886 (1984).

363. Id. at 900 n.16.

364. Court Awarded Attorney Fees: Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 255–56 (1985). For a summary of Third Circuit jurisprudence governing fee awards in common fund cases, see Gunter v. Ridgewood Energy

Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000).

365. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993);

Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991).

366. See Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49–50 (2d Cir. 2000)

(percentage method appropriate only if it prevents unwarranted windfalls); Johnston

v. Comerica Mortgage Co., 83 F.3d 241, 244–46 (8th Cir. 1996); In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 307 (1st

Cir. 1995); In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295 (9th Cir.
Common Fund and Substantial Benefit 73

has indicated that the percentage method is preferred.367 The Ninth

Circuit has suggested that the percentage method is particularly appropriate when there are multiple claims and it would be difficult to

determine what hours were expended on the claims that produced the

fund.368 The Ninth Circuit also suggested that the lodestar is preferable when “special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted

to the case or other relevant factors.”369 The Fifth Circuit has not explicitly adopted the percentage method, but seems to allow a combined percentage and lodestar approach.370

Supporters of the percentage method say that it offers several advantages. It helps ensure that the fee award will simulate marketplace

rates, since most common fund cases are the kinds of cases normally

taken on a contingency fee basis, by which counsel is promised a percentage of any recovery. In addition, if fees are based on the lodestar,

plaintiff’s counsel has no incentive to settle the case early—counsel

continues to rack up fees by litigating the case. Furthermore, the lodestar requires detailed record keeping by plaintiffs and consumes far

1994); Rawlings v. Prudential-Bach Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993);

Harman v. Lyphomed, 945 F.2d 969, 975 (7th Cir. 1991); Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir.), cert. denied, 488 U.S. 822 (1988).

367. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572–73 (7th Cir. 1992).

368. Thus, in Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.

1989), the court approved use of the percentage method, finding that it would be

“impractical if not impossible” to determine precisely the hours spent creating the

fund; but in Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990), it upheld use of the

lodestar, because “we have no such division of claims.”

369. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.

1990). See also In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1296 (9th

Cir. 1994) (“As always, when determining attorneys’ fees, the district court should be

guided by the fundamental principle that fee awards out of common funds be ‘reasonable under the circumstances.’”) (emphasis added) (quoting Florida v. Dunne, 915 F.2d

542, 545 (9th Cir. 1990)).

370. See Strong v. BellSouth Telecomm. Inc., 137 F.3d 844, 852–53 (5th Cir.

1998) (approving application of lodestar and stating that application of a percentage

approach could be restricted to a percentage of claims actually made by class members

and not the total amount that might be claimed).
74 Awarding Attorneys’ Fees and Managing Fee Litigation

more of the court’s resources.371 Defendants in common fund cases

have no incentive to scrutinize fee requests, and individual fund

beneficiaries generally lack sufficient incentive to do so.372 Thus, the

court is saddled with the entire burden of reviewing submissions concerning hours expended and the hourly rate.373

ii. Lodestar-percentage cross-check374

The court may use a percentage for an initial determination and adjust it upward or downward depending on various factors, including

those reflected in the lodestar (for example, hours expended and the

market rate).375 This is sometimes referred to as a “cross-check” or

“hybrid approach.” Upward and downward adjustments in common

371. However, even if the court uses a percentage method, it may ask counsel to

maintain time-keeping records in case it is later deemed desirable to switch to a lodestar calculation or because these records may affect the percentage chosen or an adjustment to it. See Court Awarded Attorney Fees: Report of the Third Circuit Task

Force, reprinted in 108 F.R.D. 237, 271–72 (1985).

372. See, e.g., Cont’l Ill., 962 F.2d at 568 (district court reviewed submissions “despite the absence of an adversary presentation. (The class was notified of the fee request, but no member of the class objected. There is no appellee.)”). An exception is

where several law firms vie for fees from a limited source, so each has incentive to

scrutinize others’ applications. See, e.g., In re Fine Paper Antitrust Litig., 751 F.2d 562

(3d Cir. 1984). In statutory fee-shifting cases, by contrast, defense counsel generally

relieve the court of much of the burden of reviewing the plaintiff’s lodestar figures.

373. The court often offers the only protection for fund beneficiaries. As a result,

it is generally agreed that courts have not only authority but also responsibility to

review fee requests sua sponte in common fund cases. See, e.g., Cont’l Ill., 962 F.2d at

573. Several courts have said that fee requests from common funds are subject to

heightened judicial scrutiny. See, e.g., Skelton v. Gen. Motors Corp., 860 F.2d 250, 253

(7th Cir. 1988), cert. denied, 493 U.S. 810 (1989); Fine Paper, 751 F.2d at 583. See also

Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 519 (1st Cir. 1991) (In the case

of a “clear sailing” agreement—i.e., where the party paying fees agrees not to contest

the court-awarded amount as long as it does not exceed a negotiated ceiling—“rather

than merely rubber-stamping the request, the court should scrutinize it to ensure that

the fees awarded are fair and reasonable.”).

374. See Manual for Complex Litigation (Fourth) §14.121 n.504 (2004).

375. Alternatively, the court may permit these factors to influence what percentage it chooses. The choice of percentage is discussed infra text accompanying notes

381–89.
Common Fund and Substantial Benefit 75

fund cases, whether to the lodestar or to a percentage of the fund, are

discussed below.

iii. Fee-shifting statute litigation establishes a common fund

A case governed by a fee-shifting statute may, through settlement or

judgment, create a common fund. As noted earlier, a common fund

award is not necessarily precluded in such a case.376 The Second and

Seventh Circuits have suggested that the court has discretion to make

either a fee-shifting award against defendants or an award from the

common fund, but it should not grant both.377

b. Lodestar in common fund cases

If the court uses the lodestar in a common fund case, it should engage

in virtually the same analysis as it does in fee-shifting cases. Thus, for

example, the Seventh Circuit, using several aspects of the analysis outlined in Part 1, found a number of errors in the calculation of the

lodestar in a common fund case. It found that the trial court substituted its own notions of a reasonable hourly rate for the market rate,

refused to allow compensation of paralegals at market rates, and

slashed hours without identifying which hours were excessive and

why.378

The calculation of the lodestar in common fund cases differs from

the calculation in statutory fee-shifting cases in one respect. Although

fees for time spent preparing the fee application and litigating fee disputes are compensable in statutory fee-shifting cases, they are not

376. See supra text accompanying notes 351–52.

377. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990)

(“Duplicative recovery is to be avoided, of course.”); Evans v. City of Evanston, 941

F.2d 473, 479 (7th Cir. 1991) (district court made statutory award and was “correct to

rule that it was unnecessary to allow both a recovery from the defendants and the

common fund in this case”). The Third Circuit task force recommends that “those

statutory fee cases that are likely to result in a settlement fund” should be treated like

common fund cases from the beginning (i.e., a percentage fee should be established

early in the case). Court Awarded Attorney Fees: Report of the Third Circuit Task

Force, reprinted in 108 F.R.D. 237, 255 (1985).

378. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 568–70 (7th Cir. 1992).
76 Awarding Attorneys’ Fees and Managing Fee Litigation

compensable in common fund cases.379 Such efforts do not serve the

beneficiaries—indeed, if fees were compensated they would deplete

the common fund from which the beneficiaries draw.380

c. Choosing a percentage

If a court opts for the percentage method, it is faced with the task of

finding an appropriate percentage.381 The Ninth Circuit has indicated

that 25% is the “benchmark” award.382 The Second Circuit declined

to endorse a benchmark because it held that assessment of a reasonable percentage should be made on a case-by-case basis.383 The Tenth

Circuit has said that the twelve Johnson factors should be applied to

determine the proper percentage.384 The Eleventh Circuit agreed that

the Johnson factors should be considered and added other relevant

factors: “whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by

counsel, any non-monetary benefits conferred upon the class by the

379. See, e.g., Kinney v. Int’l Bhd. of Elec. Workers, 939 F.2d 690, 694 n.5 (9th

Cir. 1991); Donovan v. CSEA Local Union 1000, 784 F.2d 98, 106 (2d Cir. 1986); In re

Fine Paper Antitrust Litig., 751 F.2d 562, 595 (3d Cir. 1984).

380. Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106.

381. This determination can be made at any stage of the litigation. See infra notes

524–40 (discussing the implications of the timing in connection with case management). For an extensive discussion of the factors involved in this task, see Manual for

Complex Litigation (Fourth) §14.121 (2004).

382. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.

1990). See also In re Pac. Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (holding

that 33% award of attorneys’ fees, in light of complexity, risk, and nonmonetary results, was not an abuse of discretion and stating that 25% benchmark can be adjusted

when there are “special circumstances”).

383. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49–50 (2d Cir. 2000). See

also In re Cendant Corp. Prides Litig., 243 F.3d 722, 736 (3d Cir. 2001) (stating that “a

district court may not rely on a formulaic application of the appropriate range in

awarding fees but must consider the relevant circumstances of the particular case,”

including size of the settlement).

384. Brown v. Phillips Petroleum Co., 838 F.2d 451, 454–55 (10th Cir. 1988).

The court suggested that the essential factor in fee-shifting cases—time and labor

required—may be less important in common fund cases than the results obtained and

amount involved. Id. at 456. For enumeration of the Johnson factors see supra note

108.
Common Fund and Substantial Benefit 77

settlement, and the economics involved in prosecuting a class action.”385 The court stated further that, as a general rule, 50% may be

established as an upper limit.386 Other courts have not set such a limit

and do not require consideration of the Johnson factors when determining a percentage.

Some courts award a lower percentage if the fund is large.387 A few

courts have used a sliding scale, allowing recovery of a given percentage of a certain amount of the fund, and decreasing percentages of

subsequent amounts.388 Courts have discretion to use whatever percentage arrangements may prove just or workable in a particular case.

For example, if a colossal fund is created, fees may be extracted from

the interest earned rather than from the corpus of the fund.389

d. Should the fee be adjusted?

Regardless of the method used for calculating the initial fee, a court

can make an upward or downward adjustment based on the individual circumstances of a case.390 Some of the factors justifying an adjustment of the lodestar in fee-shifting cases will also apply in a common fund case (regardless of whether the lodestar or percentage

method is used). In addition, the Ninth Circuit has stated that courts

should consider all pending fee applications to ascertain whether “the

385. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).

386. Id. at 774.

387. See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283,

340 (3d Cir. 1998) (remanded “for a more thorough examination and explication of

the proper percentage to be awarded . . . in light of the magnitude of the recovery”).

See also In re Smithkline Beckman Sec. Litig., 751 F. Supp. 525, 534 (E.D. Pa. 1990)

(“the percentage of recovery fee should decrease as the size of the common fund increases”).

388. See, e.g., In re Fidelity Bancorporation Sec. Litig., 750 F. Supp. 160, 163

(D.N.J. 1990) (awarding 30% of the first $10 million, 20% of the next $10 million,

and 10% of any fund beyond $20 million).

389. In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1296 (E.D.N.Y. 1985)

($180 million fund case earned $15 million interest, out of which $10 million was

assigned as fees), modified, 818 F.2d 226 (2d Cir. 1987).

390. However, if the court selects a percentage for recovery based in part on the

kind of factors normally used to make an adjustment, an adjustment would be inappropriate because it would involve a double impact of certain factors.
78 Awarding Attorneys’ Fees and Managing Fee Litigation

combined effect of granting the fee applications in toto would be to

reduce substantially the size of the common fund available for distribution to the plaintiff class.”391 The court implied that trial courts

may adjust an award if attorneys would otherwise receive an unacceptably high portion of the common fund.392

Before the Supreme Court’s decision in City of Burlington v. Dague,393 courts permitted risk enhancements in common fund cases.394

The two circuits that have addressed the issue have held that Dague’s

prohibition against risk enhancements does not apply in common

fund cases.395

e. The effect of a private fee agreement

A private agreement between the plaintiff and its counsel—whether

for payment by hourly rate or contingent fee—does not necessarily

dictate the amount of fees to be recovered from a fund, because such

an agreement could still leave the beneficiaries unjustly enriched by

391. Florida v. Dunne, 915 F.2d 542, 546 (9th Cir. 1990).

392. Id. at 546 (remanding for further fact finding and noting that “[t]he fact

that 72% of the common fund could be distributed in attorneys’ fees and costs in this

case is disturbing”).

393. 505 U.S. 557 (1992).

394. See, e.g., Skelton v. Gen. Motors Corp., 860 F.2d 250 (7th Cir. 1988);

Bebchick v. Wash. Metro. Area Transit Comm’n, 805 F.2d 396, 406–07 (D.C. Cir.

1986). See supra note 242.

395. In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir.

1994); Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 564–65 (7th Cir. 1994). In

dictum, the Third Circuit stated that Dague precluded a risk multiplier in common

fund cases. In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55

F.3d 768, 822 (3d Cir. 1995). Later, the Third Circuit noted that if risk multipliers

were applied, “they require particular scrutiny and justification.” In re Prudential Ins.

Co. of Am. Sales Practices Litig., 148 F.3d 283, 341 n.121 (3d Cir. 1998). Several district courts have applied Dague to common fund cases. See Nensel v. Peoples Heritage

Fin. Group, 815 F. Supp. 26 (D. Me. 1993); Weinberger v. Great N. Nekoosa Corp.,

801 F. Supp. 804 (D. Me. 1992); Bolar Pharm. v. Gackenbach, 800 F. Supp. 1091

(E.D.N.Y. 1992). See also In re Nineteen Appeals Arising Out of San Juan Dupont

Plaza Hotel Fire Litig., 982 F.2d 603, 619 (1st Cir. 1992) (Lay, J., sitting by designation, concurring) (in vacating fee award for other reasons, majority did not address

propriety of risk enhancement in common fund case; Judge Lay expressed his view

that Dague does apply to common fund cases).
Common Fund and Substantial Benefit 79

the lawyers’ work (or be unfair to the beneficiaries).396 Thus, notwithstanding any private agreement, courts must independently determine

a reasonable fee under the circumstances of the case.397

f. May plaintiffs be compensated for personal expenses?

The question arises whether the plaintiff’s compensation from a

common fund may go beyond attorneys’ fees to include the private

costs incurred in bringing the suit. In Trustees v. Greenough, the Supreme Court said long ago that it may not:

[T]here is one class of allowances made by the [trial] court which we consider decidedly objectionable. We refer to those made for the personal services and private expenses of the complainant....[Allowing compensation]

would present too great a temptation to parties to intermeddle in the management of valuable property or funds in which they have only the interest

of creditors, and that perhaps only to a small amount, if they could calculate

upon...having all their private expenses paid.398

However, two appellate courts have limited the reach of this

holding. The Sixth Circuit permitted reimbursement for money the

plaintiff spent on accountants and investment bankers, maintaining

that these expenditures were “related to advancing the litigation” and

thus “not ‘private’ in the sense found objectionable in Greenough.”399

The Seventh Circuit noted that “[s]ince without a named plaintiff

there can be no class action, such compensation as may be necessary

to induce him to participate in the suit could be thought the equivalent of the lawyers’ nonlegal but essential case-specific expenses, such

as long-distance phone calls, which are reimbursable.”400 The court

denied compensation for the plaintiff’s personal expenses in the case

sub judice, maintaining that such compensation is in order only if the

396. See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 126–27 (1885).

397. See, e.g., Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary

Corp., 540 F.2d 102, 120 (3d Cir. 1976). See also Bowling v. Pfizer, Inc., 102 F.3d 777,

781 (6th Cir. 1996) (discovery of fee-sharing agreements not warranted during postsettlement approval).

398. 105 U.S. 527, 538 (1881).

399. Granada Invs. v. DWG Corp., 962 F.2d 1203, 1208 (6th Cir. 1992).

400. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992).
80 Awarding Attorneys’ Fees and Managing Fee Litigation

record suggests that no named plaintiff could otherwise have been

recruited.

The Seventh Circuit did not mention the Supreme Court’s 1881

seemingly categorical rejection of recovery for the plaintiff’s personal

expenses, but the Seventh Circuit’s rationale for sometimes permitting

recovery of such expenses—that it may be necessary to attract a class

representative—seems to borrow from the fee-shifting statute rationale. However, the goals of fee-shifting statutes and the common fund

doctrine differ: Whereas the goal of fee-shifting statutes is to encourage certain kinds of actions, the goal of the common fund doctrine is

to prevent unjust enrichment.401

g. Procedures

If a class action creates a common fund, a hearing on a motion for

attorneys’ fees is optional but the court “must find the facts and state

its conclusions of law.”402 Furthermore, notice of the motion for fees

must be “directed to class members in a reasonable manner.”403 In

cases of settlement, the parties should submit motions for attorneys’

fees soon after announcing a settlement so that the Rule 23(h)(1) notice of fees request can be combined with the required Rule 23(e) notice of settlement.404

In non-class actions, because the fee request is often unopposed,

and yet fund beneficiaries are affected by the award, the rationale for

an evidentiary hearing is compelling. As the D.C. Circuit put it:

In “common fund” cases, the losing party no longer continues to have an

interest in the fund; the contest becomes one between the successful plaintiffs and their attorneys over division of the bounty. By contrast,...where

the prevailing party’s fees are paid by the loser pursuant to statute, the adversary papers...may adequately illuminate the factual predicate for a reasonable fee. This is so because the losing party in statutory fee cases retains

an interest in contesting the size of the fee. This is not the case in “common

401. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980).

402. Fed. R. Civ. P. 23(h)(3).

403. Fed. R. Civ. P. 23(h)(1).

404. See Manual for Complex Litigation (Fourth) §21.721 (2004).
Common Fund and Substantial Benefit 81

fund” fee litigation, so the District Court in those cases has a special obligation to ensure that the fee is fair.405

The Third Circuit requires a hearing before a common fund

award is made,406 and the D.C. and Second Circuits, at a minimum,

strongly encourage one.407 The First Circuit encourages such a hearing

where large sums are at stake.408 These holdings are all in cases involving use of the lodestar. If a court uses the percentage method and

there are no factual disputes concerning an upward or downward adjustment, a hearing seems less necessary. The court can protect the

interests of beneficiaries or potential beneficiaries by choosing a reasonable percentage. The court need not expend time examining submissions by counsel, as it does in cases involving the lodestar.

If a hearing is held, the court should ensure that all attorneys

staking a claim to fees are given a reasonable opportunity to be

heard.409

The Eleventh Circuit has said that the district court “should articulate specific reasons for selecting the percentage upon which the

405. Copeland v. Marshall, 641 F.2d 880, 905 n.57 (D.C. Cir. 1980) (citation

omitted).

406. In re Fine Paper Antitrust Litig., 751 F.2d 562, 584 (3d Cir. 1984) (stating

that “the hearing on a fee application in an equitable fund case requires compliance

with those procedural rules which assure fair notice and an adequate opportunity to

be heard. Equally plainly, the requirement of an evidentiary hearing demands the

application in that hearing, of the Federal Rules of Evidence.”).

407. Copeland, 641 F.2d at 905 n.57 (“A hearing may be vital in cases involving

attorney’s fees to be paid from a common fund.”); Detroit v. Grinnell Corp., 495 F.2d

448, 470, 473 (2d Cir. 1974) (Grinnell I) (“the court should typically take pains to

allow a complete airing of all objections to a petitioner’s fee claim”; where there are

overt factual disputes, “an evidentiary hearing, complete with cross-examination, is

imperative”; even absent such disputes, there may “still remain a need for an additional hearing” to fill any “factual voids which remain before an adequate fee can be

fairly determined”).

408. In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire

Litig., 982 F.2d 603, 614 (1st Cir. 1992) (evidentiary hearing not necessary in all cases,

but here the district court held one, “wisely ... considering the stakes”).

409. Id. (reversing fee award in large-scale consolidated case in which lawyers

from steering committee were permitted to testify, examine witnesses, and offer oral

argument at evidentiary hearing, but other lawyers representing individual clients

were not).
82 Awarding Attorneys’ Fees and Managing Fee Litigation

attorneys’ fee award is based....[It] should identify all factors upon

which it relied and explain how each factor affected its selection of the

percentage.”410 In common fund cases no less than in fee-shifting

cases, effective appellate review requires that the trial court articulate

clearly the bases for its decisions and calculations.411 Failure to do so

may be an abuse of discretion.412

Federal Rule of Civil Procedure 54 applies in the common fund

context as well.

3. Issues on appeal

a. Timing

A decision awarding or denying fees from a common fund, like a decision pursuant to a fee-shifting statute, is severable from the decision

on the merits and separately appealable.413 The discussion of the timing of appeals of statutory fee determinations414 also applies to appeals

of common fund decisions.

b. Scope of review

Courts have said little about the scope of review in common fund

cases. A district court’s factual determinations clearly must be reviewed deferentially.415 The Ninth and Tenth Circuits have suggested

that a district court’s decision of what method to use to calculate the

award is also entitled to deference.416

410. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).

411. Fine Paper, 751 F.2d at 596.

412. See Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (abuse of discretion not to sufficiently explain award); Gunter v. Ridgewood Energy Corp., 223 F.3d

190, 195–201 (3d Cir. 2000) (same). See also Brown v. Phillips Petroleum Co., 838

F.2d 451, 454 (10th Cir. 1988).

413. Trustees v. Greenough, 105 U.S. 527, 531 (1881); Boeing Co. v. Van Gemert, 444 U.S. 472, 479 n.5 (1980); San Juan Dupont Plaza Hotel Fire, 982 F.2d at

609–10; Overseas Dev. Disc Corp. v. Sangamo Constr. Co., 840 F.2d 1319, 1324 (7th

Cir. 1988).

414. See supra text accompanying notes 13–17 and 276–94.

415. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987).

416. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.

1990); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988).
Common Fund and Substantial Benefit 83

c. May the court of appeals calculate an award itself?

The same considerations that might lead a court of appeals in a rare

statutory fee-shifting case to calculate the award itself rather than remand it for calculation417 appear to apply as well in common fund

cases.418

C. Substantial Benefit

The substantial benefit (or the common benefit) doctrine extends the

common fund doctrine to lawsuits that produce nonmonetary benefits. Application of the two doctrines is similar, but there are noteworthy differences.419

The Supreme Court has applied the substantial benefit doctrine in

two seminal cases. Mills v. Electric Auto-lite420 involved a derivative

suit by minority shareholders to set aside a merger. Finding that the

merger violated securities laws, the Court remanded the case for the

district court to fashion a remedy and specified that the plaintiffs

should be awarded attorneys’ fees. The Court noted that “this suit has

not yet produced, and may never produce, a monetary recovery from

which the fees could be paid” but maintained that, “[a]lthough the

earliest cases recognizing a right to reimbursement involved litigation

that had produced or preserved a ‘common fund’ for the benefit of a

group, nothing in these cases indicates that the suit must actually

bring money into the court as a prerequisite to the court’s power to

order reimbursement of expenses.”421 Rather, fees may be awarded

where litigation confers “a substantial benefit on the members of an

ascertainable class, and where the court’s jurisdiction of the subject

417. See supra text accompanying notes 299–302.

418. See, e.g., In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel

Fire Litig., 56 F.3d 295, 312 (1st Cir. 1995) (court of appeals calculates award rather

than remanding).

419. Although courts often used to treat the common fund doctrine and substantial benefit doctrine as one, the trend is to treat them independently. Of course, if

a suit produces both a common fund and a substantial nonmonetary benefit, both

doctrines may be applicable.

420. 396 U.S. 375 (1970).

421. Id. at 392.
84 Awarding Attorneys’ Fees and Managing Fee Litigation

matter of the suit makes possible an award that will operate to spread

the costs proportionately among them.”422

In Hall v. Cole,423 the Supreme Court applied the substantial

benefit doctrine in a “union democracy” case. In assessing fees against

a labor union that expelled the plaintiff for violating a union rule

found to be unconstitutional, the Court held that the plaintiff “necessarily rendered a substantial service to his union as an institution and

to all its members....[B]y vindicating his own right (of free speech),

the successful litigant dispel[led] the ‘chill’ cast upon the rights of others.”424 Extracting fees from the union treasury “simply shifts the costs

of litigation to ‘the class that has benefited from them and that would

have had to pay them had it brought the suit.’”425

In Alyeska Pipeline Service Co. v. Wilderness Society,426 the Supreme Court rejected the “private attorney general” doctrine as a basis

for attorneys’ fees, but affirmed the vitality of the substantial benefit

doctrine developed in Mills and in Hall. The Court noted that when

fees are claimed under this doctrine, the primary inquiry is similar to

that required in a common fund case: Did the plaintiff’s suit produce

a substantial benefit for an identifiable class of beneficiaries, and can

the benefits be traced and the costs shifted fairly and with some accuracy?427 (As in statutory fee-shifting and common fund cases, interve422. Id. at 393–94. The beneficiaries were the shareholders, and an award against

the corporation spread costs proportionately among them.

423. 412 U.S. 1 (1973).

424. Id. at 8.

425. Id. at 9 (quoting Mills, 396 U.S. at 397).

426. 421 U.S. 240 (1975).

427. Id. at 264–65 n.39. The Ninth Circuit has held that the “tracing” requirement does not apply in labor cases because Mills did not mention it. Southerland v.

Int’l Longshoremen’s Union, 845 F.2d 796, 798–99 (9th Cir. 1987). No other court

has so held, and both the Third and D.C. Circuits have cited the tracing requirement

in labor cases. Brennan v. United Steelworkers of Am., 554 F.2d 586, 604–05 (3d Cir.

1977), cert. denied, 435 U.S. 977 (1978); Usery v. Local Union No. 639, Int’l Bhd. of

Teamsters, 543 F.2d 369, 382 (D.C. Cir. 1976). In any case, Mills requires an “ascertainable class” of beneficiaries; where there is such a class, benefits can generally be

traced with accuracy.
Common Fund and Substantial Benefit 85

nors are eligible for awards based on the substantial benefit doctrine.428)

1. Determining whether an award is in order

a. Did the suit confer a substantial benefit?

In Mills the Supreme Court said that a substantial benefit “‘must be

something more than technical in its consequence’” and must “‘accomplish[ ] a result which corrects or prevents an abuse which would

be prejudicial to the rights and interests of the corporation or affect

the enjoyment or protection of an essential right to the stockholder’s

interest.’”429 Even apart from the fact that this statement applies only

to shareholder suits, it provides limited guidance. Lower courts have

not developed a more precise standard,430 and determinations of

whether suits conferred a substantial benefit have been largely factspecific. Nevertheless, the case law provides guidance on some important issues.

As should be clear from Mills, not every beneficiary must benefit

personally for the plaintiff to recover fees. In labor cases involving, for

428. Donovan v. CSEA Local Union 1000, 784 F.2d 98, 103 (2d Cir. 1986); Brennan, 554 F.2d at 604; Usery, 543 F.2d at 382–89. Indeed, substantial benefit awards in

labor cases are often made to intervenors. These cases are brought under the LaborManagement Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§401–531,

which authorizes suit by the Secretary of Labor only. The court must determine the

extent to which the intervenor’s work helped secure the benefit as opposed to merely

duplicating the efforts of the Secretary. See, e.g., Marshall v. United Steelworkers, 666

F.2d 845, 852 (3d Cir. 1981) (reversing denial of fees to intervenors whose efforts

“narrowed the issues for Labor and helped to isolate the specific problems with the

election” but upholding denial of compensation for work at later stages found by the

district court to be either duplicative of the Secretary’s work or ineffectual); Donovan

v. Local Union 70, 661 F.2d 1199, 1203 (9th Cir. 1981) (award proper in light of Secretary’s counsel attesting to intervenor’s assistance, but the “modest amount awarded

strongly suggests it does not exceed the value of the intervenor’s contribution”). The

intervenor often confers a benefit on the membership “by identifying, investigating

and presenting for the Secretary’s ultimate prosecution, evidence of union violations.”

Donovan, 784 F.2d at 106.

429. Mills, 396 U.S. at 396 (quoting Bosch v. Meeker Coop. Light & Power Ass’n,

101 N.W.2d 423 (Minn. 1960)).

430. But cf. Southerland, 845 F.2d at 800–01 (equating substantial benefit with

“valuable service”).
86 Awarding Attorneys’ Fees and Managing Fee Litigation

example, an improper election or a violation of free speech, the remedy affects all members only insofar as they are presumed to benefit

from a more democratic union; this is sufficient for recovery of

fees.431 Indeed, the Third Circuit rejected a claim that an award was

improper because it secured free elections for only one district. The

district court held that “it strains belief to conclude that a benefit bestowed upon District 31, whose membership comprises approximately 9% of the entire union membership, inures to the benefit of

the steelworkers as a whole.”432 But the appellate court held that, “to

the extent that prosecution of [Labor-Management Reporting and

Disclosure Act of 1959] violations supports union democracy, such

activity confers direct and substantial benefit upon the entire union

membership.”433

The Fifth Circuit has suggested that the benefit cannot consist

solely of the likelihood that the defendant will change its practices to

prevent future liability.434 However, no court has so held, and the

Eleventh Circuit explicitly disagreed, finding that a labor union’s “incentive to change” constituted a substantial benefit to the members:

431. See, e.g., Zamora v. Local 11, 817 F.2d 566, 571 (9th Cir. 1987) (where suit

forced union to provide Spanish translation at its meetings, defendant argued that fee

award was improper because most members did not benefit; court disagreed because

the suit “benefits the entire membership, including English-speaking members, by

facilitating discussion and participation at the monthly meetings”).

432. Brennan v. United Steelworkers of Am., 554 F.2d 586, 605 (3d Cir. 1977),

cert. denied, 435 U.S. 977 (1978).

433. Id. Of course, the benefit must be more than that shared by the entire

population. See, e.g., id. at 606 (doctrine inapplicable where “every individual might

be said to benefit”); Crane Co. v. Am. Standard, 603 F.2d 244, 255 (2d Cir. 1979) (denying fees because “[t]he shareholders...received no benefit from this litigation,

other than the incremental benefit which arguably accrues to all participants in the

securities markets whenever violations of the securities laws are uncovered”).

434. Shimman v. Int’l Union of Operating Eng’rs, 744 F.2d 1226, 1235 n.13 (5th

Cir. 1984) (en banc) (“Since there was no injunction...the benefits received by other

union members were achieved not by direct operation of the judgment, but rather

were the result of a realization that the union would have to reform itself or risk exposure to further liability.”), cert. denied, 469 U.S. 1215 (1985). This must be regarded as

dictum, as it consisted of a footnote in an opinion rejecting the fee award on other

grounds.
Common Fund and Substantial Benefit 87

“[W]e do not find such incentive an insubstantial benefit. Substantiality does not rest on compulsory reform or injunctive relief.”435

As a general matter, the substantial benefit need not be achieved

by a formal judgment.436 For example, a suit may confer a substantial

benefit if a settlement is reached,437 or if the defendant takes action

that moots the case.438 In the latter situation, the Third and Ninth

Circuits required the plaintiff to demonstrate that its complaint was

“meritorious.”439

The Sixth Circuit held that a suit conferred a substantial benefit

where a preliminary injunction forced a union to distribute the plaintiffs’ campaign literature. The case was subsequently mooted before

the court could rule on the merits—the suit “did create a ‘common

benefit’ for all of the union members: It ensured free and democratic

elections of candidates for union office.”440 This holding is consistent

with the Eleventh Circuit’s reversal of a fee award where the plaintiff

was granted a preliminary injunction preventing the imposition of a

trusteeship on the union but then lost on the merits.441 The Eleventh

Circuit found the award inappropriate because the plaintiff’s success

procured no meaningful or lasting benefit for the union members.442

435. Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir.), cert. denied, 479 U.S. 961

(1986).

436. See Ramey v. Cincinnati Enquirer, 508 F.2d 1188, 1196 (6th Cir. 1974) (“So

long as a substantial benefit is conferred upon the corporation, it is not necessary that

the litigation be brought to a successful completion.”), cert. denied, 422 U.S. 1048

(1975).

437. See, e.g., Koppel v. Wien, 743 F.2d 129, 135 (2d Cir. 1984).

438. See, e.g., Lewis v. Anderson, 692 F.2d 1267, 1270 (9th Cir. 1982); Ramey,

508 F.2d at 1196.

439. Lewis, 692 F.2d at 1270–71; Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.),

cert. denied, 398 U.S. 950 (1970).

440. Bliss v. Holmes, 867 F.2d 256, 258 (6th Cir. 1988).

441. Markham v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,

901 F.2d 1022 (11th Cir. 1990). See also Benda v. Grand Lodge, 584 F.2d 308 (9th Cir.

1978) (finding award premature where plaintiff was granted preliminary injunction

but decision on the merits had yet to be reached), cert. dismissed, 441 U.S. 937 (1979).

442. Markham, 901 F.2d at 1028. The court explicitly held open the possibility of

fees where a preliminary injunction “form[ed] a vital function in changing the legal

relationship between the parties.” Id.
88 Awarding Attorneys’ Fees and Managing Fee Litigation

The Ninth Circuit held that fees are inappropriate for a labor union defendant that succeeds in defending a suit.443 Such an award

would shift costs away from the beneficiaries and on to the opposing

party—this is not the rationale in substantial benefit cases.444

b. Do the defendant and the beneficiaries share an identity of

interests?

In keeping with Mills and Hall, substantial benefit awards are usually

made in suits by a shareholder against a corporation or by a labor

union member against a union.445 Fees are paid by the defendant, because it is the alter ego of the beneficiaries who would otherwise be

unjustly enriched by the suit. If the defendant and the beneficiaries

443. Ackley v. W. Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992).

444. In Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), the Ninth Circuit applied the same reasoning in a non-labor case, holding that a victorious defendant could not be awarded fees against the plaintiff because the plaintiff “has not

benefited from this action. To saddle him with the attorney’s fee will only increase his

losses from this action, not correlate costs with benefits.” Id. at 509. In the union

context, the Ninth Circuit has stated a second rationale for the denial of fees against

the plaintiff: The “mere prospect of such an award would ‘chill union members in the

exercise of their statutory right to sue the union.’” Ackley, 958 F.2d at 1479 (quoting

Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983)).

445. The shareholder suits are generally class actions or derivative suits. The

courts are split on whether the substantial benefit doctrine applies when the plaintiff

brings suit as an individual shareholder. Compare Bailey v. Meister Brau, 535 F.2d

982, 995 (7th Cir. 1976) (doctrine inapplicable because award would shift costs to

losing party), with Reiser v. Del Monte Props., 605 F.2d 1135, 1139 (9th Cir. 1979) (to

require that suit be brought derivatively or representatively misconstrues the purpose

of the doctrine). The Reiser court made a strong case that as long as the suit benefits

shareholders, recovery should not depend on the status of the plaintiff. See also Meister Brau, 535 F.2d at 997 (Swygert, J., dissenting) (“The majority employs a formalistic approach...which obscures the purpose of the [substantial benefit] rule...and

thereby achieves an inequitable result. That purpose is to insure that the costs of litigation are not borne solely by one or a few shareholders” where a benefit is conferred

on all the shareholders.).

Successful shareholder derivative actions qualify for a substantial benefit award

only when they produce nonmonetary relief. When they produce a monetary recovery

for the corporation, the common fund doctrine applies.
Common Fund and Substantial Benefit 89

have no such identity of interests, an award against the defendant is

improper because it would shift the costs unfairly.446

A Ninth Circuit case illustrates this point. A suit by residents of an

irrigation district forced the Secretary of the Interior to free up land

for the residents to buy at a below-market price. The plaintiffs sought

fees from the district, since members of the district benefited from the

suit. However, the Ninth Circuit found an award inappropriate because

the result achieved is not beneficial to all landowners within the District.

Those who own excess lands will be required to sell the excess at belowmarket prices, or will no longer receive water for irrigating those lands. If

appellants’ attorneys’ fees were drawn from the District’s general revenues,

there would be no congruence between the funds disbursed as the fee award

and the funds taken in from the beneficiary class in whose name that award

is made.447

Even in shareholder suits or suits by labor union members against

a union, an award may be inappropriate because of insufficient congruence between the defendant and the beneficiaries; that is, the suit

may not benefit all shareholders or union members, and therefore, a

fee award unfairly penalizes the nonbeneficiaries. Thus, the Ninth

Circuit found an award inappropriate where a suit established that a

union’s policy, as it applied to the plaintiff, resulted in the unfair denial of pension benefits: Not all—or even most—union members

446. See, e.g.,Johnson v. HUD, 939 F.2d 586, 590 (8th Cir. 1991) (denying award

because “defendants are neither the alter ego nor the representative of the benefited

class”); Oster v. Bowen, 682 F. Supp. 853, 857 (E.D. Va.) (“Where the common benefit rule is invoked against a stock corporation or a union, the beneficiaries may incur

their share of the costs by such means as reduced dividends or higher union dues.

MSVRO, however, is a non-stock corporation. Plaintiff has demonstrated no financial

relationship whatsoever between MSVRO and the physicians who may benefit from

the new procedures.”), appeal dismissed, 859 F.2d 150 (4th Cir. 1988), cert. denied, 489

U.S. 1019 (1989). See also Home Sav. Bank v. Gillam, 952 F.2d 1152, 1163 (9th Cir.

1991) (where bank sued and recovered severance benefits from its former CEO, award

of fees was reversed because defendant was hurt by the suit, and where “the party

ordered to pay fees is not a beneficiary...the common benefit exception does not

apply”).

447. United States v. Imperial Irrigation Dist., 595 F.2d 525, 531 (9th Cir. 1979),

rev’d in part, vacated and remanded on other grounds, 447 U.S. 352 (1980).
90 Awarding Attorneys’ Fees and Managing Fee Litigation

benefited from the suit.448 Moreover, the change in policy resulting

from the suit would not make the union more democratic; its only

benefit was to the handful of employees whose pensions would be increased.

Similarly, most courts reject the applicability of the substantial

benefit doctrine in suits against the government.449 If only some

members of the population benefit from the suit, an award from the

government treasury is inappropriate because it would involve all taxpayers in the fee sharing.450 Indeed, because of the required identity of

448. Burroughs v. Bd. of Trustees, 542 F.2d 1128, 1132 (9th Cir. 1976). The court

also noted that because “no records...reveal[ ] the identity of persons benefited by

[the] action,” the class of beneficiaries is “of indeterminable size and not easily identifiable.” This focus is misleading because even if the beneficiaries were identified, an

award would have been improper because many members of the union were not

beneficiaries yet would have shared in the costs of any fee award. These two concerns—unequal benefits and difficulty identifying beneficiaries—often overlap. See,

e.g., Edwards v. Heckler, 789 F.2d 659, 660 (9th Cir. 1985) (reversing award where suit

resulted in more lenient standard for Social Security benefits: “the class of persons

benefited is not easily identifiable because it includes all who will benefit in the future

from the new standard....The benefit will be difficult to trace because each class

member will receive a different amount depending upon his or her circumstances.

Lastly, the costs cannot be shifted with exactitude [for these reasons].”); Cantwell v.

San Mateo, 631 F.2d 631, 639 (9th Cir. 1980) (fees properly denied where suit required county to change policy with respect to retirement benefits: “The decision in

this case will affect all county employees in the entire state of California....There is

no ready way to identify all the employees who might be able to avail themselves....More importantly, for the same reason, there is no method of shifting the

costs with some exactitude.”).

449. See, e.g., Linquist v. Bowen, 839 F.2d 1321, 1326 (8th Cir.), cert. denied, 488

U.S. 908 (1988); In reHill, 775 F.2d 1037, 1041 (9th Cir. 1985); Grace v. Burger, 763

F.2d 457, 459 (D.C. Cir.), cert. denied, 474 U.S. 1026 (1985); Jordan v. Heckler, 744

F.2d 1397, 1400 (10th Cir. 1984).

450. As noted supra note 343, if all citizens or taxpayers benefit, courts generally

reject an award because it would merge the substantial benefit doctrine into the rejected private-attorney general concept. In Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975), the Supreme Court noted that in its substantial benefit

and common fund cases, the beneficiaries were “small in number.” Id. at 265 n.39.

However, the number of beneficiaries does not appear to be a ground for denial of

fees except in suits against the government. In one substantial benefit case, the Third

Circuit rejected the contention that an award was inappropriate because there were

too many beneficiaries:
Common Fund and Substantial Benefit 91

interests shared by the defendant and the beneficiaries, claims for fees

based on the substantial benefit doctrine infrequently succeed outside

the corporate and labor union contexts.

c. Has the plaintiff benefited disproportionately?

The Sixth Circuit has held several times that when the plaintiff receives a damage award from a labor union, a fee award would shift the

costs unfairly.451 As the Fifth Circuit observed, if the plaintiff who received a personal award were also awarded fees,

he would pay no greater portion of the fees than any other union member

who benefited only incidentally. The fee award would not distribute fees in

proportion to benefits.

This is clearly not a case where the plaintiff “benefits a group of others in

the same manner as himself.”...[Plaintiff] obtained redress for personal

injuries not shared by other union members. The purpose of the common

benefit exception is to shift the costs of litigation to “the class that benefited

from them and that would have had to pay them had it brought the

suit.”...Other union members could not have brought suit to redress

[plaintiff’s] personal injuries.452

Similarly, the D.C. Circuit said that fees are inappropriate where “a

litigant obtain[s] a direct and pecuniary benefit, and the ‘benefit’ to

The magistrate apparently understood that language [in Alyeska] to

mean absolute numbers, and indicated that a class of 1,400,000 was too

large to have been benefited. Like any other statement, that one must

be viewed in context. Given this context, mere size does not support

the contention that the class of USWA members did not receive a

common benefit from [plaintiff’s] activity....In our view, the requirement of identifiability weighs heavily in this determination, and

USWA members, though numerous, are readily identifiable as the

benefited group.

Brennan v. United Steelworkers of Am., 554 F.2d 586, 606 (3d Cir. 1977), cert. denied,

435 U.S. 977 (1978).

451. Black v. Ryder, 970 F.2d 1461, 1472 (6th Cir. 1992); Guidry v. Int’l Union of

Operating Eng’rs, 882 F.2d 929, 944 (6th Cir. 1989), vacated on other grounds, 494

U.S. 1022 (1990).

452. Shimman v. Int’l Union of Operating Eng’rs, 744 F.2d 1226, 1235 (5th Cir.

1984) (en banc), cert. denied, 469 U.S. 1215 (1985) (citations omitted).
92 Awarding Attorneys’ Fees and Managing Fee Litigation

the class...is incremental and relatively intangible.”453 The Tenth

Circuit agreed.454

Courts have awarded fees based on the substantial benefit doctrine even though the plaintiff recovered damages, without discussing

the disproportionality issue.455 In any event, the Sixth Circuit’s position has limited scope. First, it appears to apply only to cases in which

the plaintiff recovers damages personally—not to cases in which damages are ordered paid to the union.456 Second, it does not apply if the

plaintiff receives damages and an injunction that directly benefits the

other union members.457 Finally, it cannot be construed to apply to

awards beyond money damages. Clearly, a fee award should not be

denied simply because the plaintiff benefits more than other beneficiaries, for example, if a suit that overturns a fraudulent election results

in the plaintiff’s becoming elected.458

d. Does the court have jurisdiction to make an award?

As explained earlier, the requirement in common fund cases that the

court have jurisdiction over the fund is generally met because the

453. Am. Ass’n of Marriage v. Brown, 593 F.2d 1365, 1369 (D.C. Cir. 1979).

454. Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d

1480, 1484–85 (10th Cir. 1993).

455. See, e.g., Bise v. Int’l Bhd. of Elec. Workers, 618 F.2d 1299 (9th Cir. 1979),

cert. denied, 449 U.S. 904 (1980); Rosario v. Amalgamated Ladies Garment Cutters

Union, 605 F.2d 1228 (2d Cir. 1979), cert. denied, 446 U.S. 919 (1980); Emmanuel v.

Omaha Carpenters Dist. Council, 560 F.2d 382 (8th Cir. 1977); McDonald v. Oliver,

525 F.2d 1217 (5th Cir.), cert. denied, 429 U.S. 817 (1976).

456. See Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir.) (distinguishing Shimman from case in which damages award was ordered paid to the union), cert. denied,

479 U.S. 961 (1986).

457. Shimman itself could arguably be read to suggest that fees may be in order

in such cases. See Shimman, 744 F.2d at 1235 nn.13, 14. A year later, the Sixth Circuit

removed any doubt. See Murphy v. Int’l Union of Operating Eng’rs, 774 F.2d 114, 127

(6th Cir. 1985), cert. denied, 475 U.S. 1017 (1986).

458. See, e.g., Marshall v. United Steelworkers, 666 F.2d 845, 853 (3d Cir. 1981)

(error to deny fees to plaintiff whose suit overturning union election led to his own

election: “That the individual who brought suit also receives a direct personal benefit

from it is of no matter.”), cert. denied, 459 U.S. 823 (1982). In addition, it is irrelevant

that plaintiff’s motive in bringing the suit may have been to help himself rather than

the union. Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983).
Common Fund and Substantial Benefit 93

court has jurisdiction over the defendant who controls the fund.459 In

substantial benefit cases, in which there is no fund, the “jurisdiction”

or “control” criterion has occasionally proved to be more complex.

In a Sixth Circuit case, the plaintiff sued both his labor union and

an automobile company for various offenses. He prevailed against the

company for making improper payments to union officers. The district court awarded fees against the union, but the Sixth Circuit held

that the district court lacked jurisdiction to make such an award, since

the union was not party to the claim for which fees were awarded:

In holding that the court need only “have ‘jurisdiction over an entity

through which the contribution can be effected,’” the district judge has

confused jurisdiction over the person with jurisdiction over the subject

matter....Liability for attorneys’ fees cannot rest, without more, on the

fortuitous chance that the claim on which a plaintiff seeks recovery of fees

may be joined in the same action with a separate claim against the intended

source of that recovery. The court making the award must have jurisdiction

over the target of that award by virtue of its jurisdiction over the subject

matter of the claim on which the award is based.460

The Ninth Circuit has held that the substantial benefit doctrine

does not create subject matter jurisdiction, and it therefore dismissed

a suit for recovery of fees filed after completion of the underlying litigation.461 After the plaintiffs settled their inverse condemnation proceeding, they brought action for fees in federal court against property

owners who were not parties to the litigation but who had benefited

from the settlement. There was no independent basis for federal jurisdiction, and the Ninth Circuit held that the substantial benefit doctrine did not supply a basis for jurisdiction. The court acknowledged

that this issue had not been raised in the numerous cases awarding

fees based on the substantial benefit doctrine (and common fund

doctrine), but it noted that “in each such case the fee request was part

459. See supra text accompanying notes 345–48.

460. Toth v. UAW, 743 F.2d 398, 406 (6th Cir. 1984) (citations omitted).

461. Sederquist v. Court, 861 F.2d 554, 557 (9th Cir. 1988) (substantial benefit

doctrine is not part of the federal common law but “merely an equitable exception to

the traditional ‘American rule’ governing attorneys’ fees” and does not confer jurisdiction under 28 U.S.C. §331).
94 Awarding Attorneys’ Fees and Managing Fee Litigation

of the original proceeding and the district court’s jurisdiction rested

on grounds independent of the fee request.”462

Note that the plaintiffs could not have recovered from the property owners as part of the original suit because the property owners

were not parties. In general, a court cannot order fees paid by beneficiaries personally if they are not party to the litigation.463

e. Is an award contrary to congressional intent?

As is true in the common fund context, in substantial benefit cases, a

remedial scheme or other evidence that Congress did not intend a fee

award in a particular class of cases will defeat an award.464

2. Method for determining amount of award

The lodestar is generally used to determine the amount of fees in substantial benefit cases.465 The kinds of adjustments to the lodestar permitted in cases under the fee-shifting statutes may be made in substantial benefit cases as well.466 In addition, the Sixth Circuit has said

that an award may be adjusted upward or downward to reflect the

extent of the benefit conferred.467

In substantial benefit cases, work preparing a fee request or litigating over fees is compensable; in common fund cases, it is not.468 In

462. Id.

463. See, e.g., Cantwell v. San Mateo, 631 F.2d 631, 639 (9th Cir. 1980) (rejecting

creative fee-sharing proposal that required non-parties to contribute to attorneys’

fees).

464. Usery v. Local Union No. 639, Int’l Bhd. of Teamsters, 543 F.2d 369, 386–88

(D.C. Cir. 1976).

465. See, e.g., Southerland v. Int’l Longshoremen’s Union, 845 F.2d 796, 800–01

(9th Cir. 1987). See also Rosenbaum v. MacAllister, 64 F.3d 1439, 1447 (10th Cir.

1995) (holding that a “percentage of the fund” approach is not appropriate in substantial benefit cases, and that while the Johnson factors must be considered, the calculation need not be based on the same approach as that used in statutory fee cases).

466. Kinney v. Int’l Bhd. of Elec. Workers, 939 F.2d 690, 695–96 (9th Cir. 1991)

(rejecting argument that adjustment to lodestar “is inappropriate in any case where

the award of fees is based upon” the substantial benefit doctrine).

467. Smillie v. Park Chem. Co., 710 F.2d 271, 275 (6th Cir. 1983).

468. Kinney, 939 F.2d at 693–95; Donovan v. CSEA Local Union 1000, 784 F.2d

98, 106 (2d Cir. 1986); Pawlak v. Greenawalt, 713 F.2d 972, 983–84 (3d Cir. 1983).
Common Fund and Substantial Benefit 95

common fund cases, the work on fees, if compensated, would deplete

the very fund that benefits the beneficiaries. This is not so in substantial benefit cases, in which the benefit conferred by the lawsuit is nonpecuniary.469

3. Issues on appeal

The discussion on appellate issues in common fund

cases470—specifically, the timing of appeals, the scope of review, and

whether the court of appeals can calculate the award itself—applies in

toto to substantial benefit cases.

D. Private Securities Litigation Reform Act of 1995

Congress enacted the Private Securities Litigation Reform Act of 1995

(PSLRA)471 “to prevent frivolous and unmeritorious securities class

actions.”472 The goal of the PSLRA was to replace lawyer-driven litigation with client-driven litigation.473 Debate quickly arose as to

whether trial judges had authority under the PSLRA to conduct an

auction for selecting class counsel.474 The Third Circuit has addressed

469. See Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106; Pawlak, 713 F.2d

at 981.

470. See supra text accompanying notes 413–18.

471. 15 U.S.C. §78u-4 (2000). The PSLRA provides that “[t]he most adequate

plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.” Id. §78u-4(a)(3)(B)(v). The PSLRA also provides that total attorney

fees and expenses awarded by the court “shall not exceed a reasonable percentage of

the amount of any damages . . . actually paid to the class.” 15 U.S.C. §78u-4(a)(6).

Courts still have a duty under Rule 23 to review the reasonableness of fees at the end

of litigation. See, e.g., In re Cendant Corp. Prides Litig., 243 F.3d 722, 730–31 (3d Cir.

2001).

472. See Manual for Complex Litigation (Fourth) §31.3 (2004).

473. Berger v. Compaq Computer Corp., 257 F.3d 475, 484 (5th Cir. 2001) (under the PSLRA “[c]lass action lawsuits are intended to serve as a vehicle for capable,

committed advocates to pursue the goals of the class members through counsel, not

for capable, committed counsel to pursue their own goals through those class members”).

474. Selection of class counsel by an auction or bidding process was developed by

Judge Vaughn Walker in In reOracle Securities Litigation, 131 F.R.D. 688 (N.D. Cal.

1990), modified, 132 F.R.D. 538 (N.D. Cal. 1990), a securities class action that pr e-
96 Awarding Attorneys’ Fees and Managing Fee Litigation

the issue at the stage of selection of lead counsel,475 and the Ninth Circuit has addressed the issue at the stage of selection of lead plaintiff. 476

The Third Circuit ruled that selecting lead counsel by competitive

bidding is generally not permitted under the PSLRA.477 In In re Cendant Corp. Litigation,478 the district court declined to accept the lead

plaintiffs’ choices for lead counsel and concomitant retainer agreements. The court conducted an auction in order to establish reasonable attorneys’ fees through market simulation.479 The Third Circuit

vacated the award of attorneys’ fees made pursuant to the auction

terms.480 Acknowledging that the PSLRA renders plaintiff’s counsel

selection “subject to the approval of the court,”481 the Third Circuit

found that appointing counsel through auction was more than “approving” or “disapproving” the lead plaintiff’s choice.482 The court

explained:

This language makes two things clear. First, the lead plaintiff’s right to select

and retain counsel is not absolute—the court retains the power and the

duty to supervise counsel selection and counsel retention. But second, and

just as importantly, the power to “select and retain” lead counsel belongs, at

least in the first instance, to the lead plaintiff, and the court’s role is confined to deciding whether to “approv[e]” that choice. Because a courtordered auction involves the court rather than the lead plaintiff choosing

dated the PSLRA. See infra text accompanying notes 524–40. See also Proceedings of

the 2001 Third Circuit Task Force on the Selection of Class Counsel, in Third Circuit

Task Force Report on Selection of Class Counsel , 74 Temp. L. Rev. 689 (2001), for an indepth evaluation of and recommendations on auctioning practices under the PSLRA;

and Laural Hooper & Marie Leary, Auctioning the Role of Class Counsel in Class

Action Cases: A Descriptive Study (Federal Judicial Center 2001).

475. In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001). Cendant involves

two actions: the non-Prides claims and the Prides claims. The Third Circuit addressed

the auctioning issue in the non-Prides claims.

476. In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002).

477. Cendant, 264 F.3d at 273.

478. 182 F.R.D. 144 (D.N.J. 1998).

479. Id. at 150. Because the PSLRA affords lead plaintiffs the opportunity to

choose counsel, the court allowed plaintiffs’ counsel to meet the terms of the lowest

bids. Id. at 151. Lawyers for the two lead plaintiffs matched the lowest bids, and the

court appointed each attorney as lead counsel for the respective plaintiff.

480. Cendant, 264 F.3d 201.

481. 15 U.S.C. §78u-4(a)(3)(B)(v) (2000).

482. Cendant, 264 F.3d at 274.
Common Fund and Substantial Benefit 97

lead counsel and determining the financial terms of its retention, this latter

determination strongly implies that an auction is not generally permissible

in a Reform Act case, at least as a matter of first resort.483

Furthermore, the Third Circuit found that the “auction” model

runs contrary to the PSLRA’s “lead plaintiff model” and to its legislative history.484 It stated that the PSLRA “evidences a strong presumption in favor of approving a properly-selected lead plaintiff’s decisions

as to counsel selection and counsel retention.”485 The court stated that

a district court’s “inquiry is appropriately limited to whether the lead

plaintiff’s selection and agreement with counsel are reasonable on

their own terms.”486 The court continued, “the ultimate inquiry is always whether the lead plaintiff’s choices were the result of a good faith

selection and negotiation process and were arrived at via meaningful

arms-length bargaining.”487

The Ninth Circuit rejected conducting an auction to select class

counsel and held that it was error to select the lead plaintiff according

483. Id. at 273.

484. Id. at 273–74.

485. Id. at 276.

486. Id. The court gave a non-exhaustive list of questions to ask:

In making this determination, courts should consider: (1) the quantum of legal experience and sophistication possessed by the lead plaintiff; (2) the manner in which the lead plaintiff chose what law firms to

consider; (3) the process by which the lead plaintiff selected its final

choice; (4) the qualifications and experience of counsel selected by the

lead plaintiff; and (5) the evidence that the retainer agreement negotiated by the lead plaintiff was (or was not) the product of serious negotiations between the lead plaintiff and the prospective lead counsel.

Id.

487. Id. (emphasis added). In In re Lucent Technologies, Inc., Securities Litigation,

194 F.R.D. 137 (D.N.J. 2000), a case that predates Cendant, the district court held a

sealed-bid auction to select class counsel because it seemed “unlikely that there ha[d]

been a great deal of (if any) independent, arm’s length negotiating between Lead

Plaintiff and the proposed lead counsel.” Id. at 156. The court’s decision to hold an

auction was also based on judicial economy—the auction was “an effort to keep this

matter moving” and “recognized” that the provisional lead plaintiff may be replaced.

Id.
98 Awarding Attorneys’ Fees and Managing Fee Litigation

to how advantageous an attorneys’ fee arrangement was negotiated.488

The district court judge had refused to appoint as lead plaintiff the

party with the largest stake in the controversy because there were

“significant differences in potential attorney fees” among parties.489

Finding no other plaintiffs to be “adequate,” the district court appointed a nominal plaintiff and conducted an auction to select class

counsel.

The Ninth Circuit vacated the order appointing the nominal

plaintiff490 and expressed its disfavor with auctions for selecting class

counsel.491 It explained that under the PSLRA, the plaintiff with the

largest financial stake becomes the presumptive lead plaintiff if he or

she meets Federal Rule of Civil Procedure 23(a)’s492 typicality and

adequacy requirements.493 The court rejected “deficiencies in the [ ]

fee agreement” as evidence that the potential lead plaintiff was inadequate, and thus allowed the court to conduct an auction.494 It stated:

The presumptive lead plaintiff’s choice of counsel and fee arrangements

may be relevant in ensuring that the plaintiff is not receiving preferential

treatment through some back-door financial arrangement with counsel, or

proposing to employ a lawyer with a conflict of interest. But this is not a

beauty contest; the district court has no authority to select for the class what

it considers to be the best possible lawyer or the lawyer offering the best

possible fee schedule. Indeed, the district court does not select class counsel

at all.495

The Third Circuit did hold open the door to selection of lead

counsel through auctions in limited situations. The court noted that if

it appeared that the lead plaintiff’s choice of counsel and fee arrange488. In re Cavanaugh, 306 F.3d 726, 731–36 (9th Cir. 2002). In Cavanaugh, the

Ninth Circuit held that the PSLRA did not change the standard for adequacy under

Fed. R. Civ. P. 23(a). Id. at 736. The Fifth Circuit came to a different conclusion in

Berger v. Compaq ComputerCorp., 257 F.3d 475, 483 (5th Cir. 2001), reh’g denied, 279

F.3d 313 (5th Cir. 2002).

489. In re Quintus Sec. Litig., 201 F.R.D. 475, 488 (N.D. Cal. 2001).

490. Cavanaugh, 306 F.3d at 739.

491. Id. at 734 n.14.

492. Fed. R. Civ. P. 23(a).

493. Cavanaugh, 306 F.3d at 730.

494. Id. at 732.

495. Id.
Common Fund and Substantial Benefit 99

ments were not reasonable, then the court should give the plaintiff a

chance to renegotiate. If the plaintiff chose not to renegotiate a more

fair arrangement, then the court could designate that plaintiff as “not

adequate” and choose an alternative. In the rare situation that no

other “adequate” plaintiff existed, the court could appoint lead counsel through an auction.496

In Cendant, the Third Circuit set forth guidelines for reviewing

the “reasonableness” of an attorneys’ fees award. The court stated that

“under the PSLRA, courts should accord a presumption of reasonableness to any fee request submitted pursuant to a retainer agreement that was entered into between a properly-selected lead plaintiff

and a properly-selected lead counsel.”497 This presumption could be

rebutted “by a prima facie showing that the (properly submitted) retained agreement fee is clearly excessive.”498 If the presumption were

496. Cendant, 264 F.3d at 277. District courts have selected lead counsel through

an auction when the court doubted the “adequacy” of the lead plaintiff. See, e.g., In re

Commtouch Software Ltd. Sec. Litig., No. 01-C-00719, Order Re Lead Plaintiff Selection and Class Counsel Selection 2 (N.D. Cal. June 27, 2001) (district court ordered

lead plaintiff to conduct an auction under court-established procedures when the only

choice for lead plaintiff had limited English skills and was therefore not able to exercise due diligence in selecting counsel).

On a related note, one district court refused to appoint a group of four unrelated

institutional investors as lead plaintiff because the group was “cobbled together by

cooperating counsel for the obvious purpose of creating a large enough grouping of

investors to qualify as ‘lead counsel.’” In re Razorfish Inc. Sec. Litig., 143 F. Supp.2d

304, 308–09 (S.D.N.Y. 2001). See also In re Gemstar-TV Guide International, Inc. Securities Litigation, 209 F.R.D. 447, 451–52 (C.D. Cal. 2002), for a list of cases in which

district courts refused to appoint groups of unrelated investors as lead plaintiffs.

497. Cendant, 264 F.3d at 282.

498. Id. at 283. In Cendant, the Third Circuit said that courts should be guided

by the factors it set forth in Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1

(3d Cir. 2000), in determining whether the retainer is excessive:

(1)the size of the fund created and the number of persons benefited;

(2)the presence or absence of substantial objections by members of

the class to the settlement terms and/or fees requested by counsel;

(3)the skill and efficiency of the attorneys involved; (4)the complexity

and duration of the litigation; (5)the risk of nonpayment; (6)the

amount of time devoted to the case by plaintiffs’ counsel; and (7)the

awards in similar cases.
100 Awarding Attorneys’ Fees and Managing Fee Litigation

rebutted, “the court would need to set a reasonable fee according to

the standards our previous cases have set down for class actions not

governed by the PSLRA.”499

The Ninth Circuit held that the PSLRA does not require that attorneys’ fees be calculated on the basis of a percentage of recovery minus expenses.500

Cendant, 264 F.3d at 283. The court noted that under the PSLRA, factors 3 and 7

should be given less weight. Id. at 284. It also stated that a lodestar “cross-check” may

be appropriate. Id.

499. Cendant, 264 F.3d at 285.

500. Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000) (interpreting 15

U.S.C. §78u-4(a)(6) language that fees “shall not exceed a reasonable percentage of

the amount of any damages and prejudgment interest actually paid to the class”).
101

III

The Obligation of Bankruptcy Courts

to Examine Fee Petitions

The usual professional fee petition in bankruptcy court does not present an adversarial situation. Because the estate, not the opposing

party, pays the award of attorneys’ fees, petitions are often unopposed.

This puts an additional burden on the bankruptcy court if it scrutinizes the fee petition. The question arises, however, whether bankruptcy judges are obligated (or even authorized) to scrutinize fee petitions sua sponte pursuant to 11 U.S.C. §330.501

The overwhelming number of bankruptcy courts that have addressed the question have held that bankruptcy courts have not only

the power but also the obligation to scrutinize fee petitions sua

sponte.502 The district courts that have addressed the issue have generally concurred.503

501. 11 U.S.C. §330 (2000) (compensation for services and reimbursement of

expenses for estate officers). The following discussion involves bankruptcy cases

wherein professional fees have not been preapproved by the court pursuant to 11

U.S.C. §328 (2000) (authorizing the trustee, with court approval, to retain professional services). Where a section 328 retention order is granted, a section 330 “reasonableness review” is not appropriate, and the terms of fee payment cannot be altered absent a finding that the original terms are “improvident in light of

developments not capable of being anticipated at the time of the fixing of such terms

and conditions.” 11 U.S.C. §328(a) (2000). SeeIn re Nat’l Gypsum Co., 123 F.3d 861,

862 (5th Cir. 1997); In re Reimers, 972 F.2d 1127, 1128 (9th Cir. 1992).

502. See, e.g., In re Gillett Holdings, 137 B.R. 462, 466 (Bankr. D. Colo. 1992); In

re Bank of New England, 134 B.R. 450, 453 (Bankr. E.D. Mass. 1991); In re Bush, 131

B.R. 364, 365 (Bankr. W.D. Mich. 1991); In reGold Seal Prods., 128 B.R. 822, 827–28

(Bankr. N.D. Ala. 1991); In re Concept Clubs, 125 B.R. 634, 636 (Bankr. D. Utah

1991); In re Saunders, 124 B.R. 234, 236 (Bankr. W.D. Tex. 1991); In re E Z Feed

Cube, 123 B.R. 69, 73 (Bankr. D. Or. 1991); In re Sounds Distrib. Corp., 122 B.R. 952,
102 Awarding Attorneys’ Fees and Managing Fee Litigation

In response to a flurry of district court orders in the Eastern District of Pennsylvania stating that bankruptcy courts do not have

authority to review fee petitions sua sponte,504 the Third Circuit addressed the issue. The court held that “[b]eyond possessing the power,

...the bankruptcy court has a duty to review fee applications, notwithstanding the absence of objections ....”505

The Third Circuit emphasized, however, that it did not intend for

bankruptcy courts to “‘become enmeshed in a meticulous analysis of

every detailed facet of the professional representation.’”506 Rather,

noting that bankruptcy courts’ time is precious, the court clarified

that the bankruptcy court faced with an unopposed fee application

“need only correct reasonably discernible abuses, not pin down to the

nearest dollar the precise fee to which the professional is ideally entitled.”507

The Third Circuit made a compelling case that bankruptcy judges

may—indeed must—review fee applications even when there is no

objection. The Third Circuit recognized the potential burden on judicial administration and recommended appropriate measures to re957 (Bankr. W.D. Pa. 1991); In re CVC, Inc., 120 B.R. 874, 876–77 (Bankr. N.D. Ohio

1990); In re Great Sweats, Inc., 113 B.R. 240, 242 (Bankr. E.D. Va. 1990); In re Gary

Fairbanks, Inc., 111 B.R. 809, 811 (N.D. Iowa 1990); In re Oberreich, 109 B.R. 936,

937 (Bankr. D. Wis. 1990); In reInslaw, Inc., 106 B.R. 331, 333 (Bankr. D.D.C. 1989);

In re Miami Optical Exp., Inc., 101 B.R. 383, 384 (Bankr. S.D. Fla. 1989). This list is

partial; many other cases reach the same conclusion.

503. In re Taxman Clothing Co., 134 B.R. 286, 290–91 (N.D. Ill. 1991); In re

NRG Res., Inc., 64 B.R. 643, 650 (W.D. La. 1986).

504. In re Ross, 135 B.R. 230, 239 (E.D. Pa. 1991); In re T & D Tool & Die, Inc.,

132 B.R. 525, 528 n.1 (E.D. Pa. 1991); In reJensen’s Interiors, 132 B.R. 105, 106 (E.D.

Pa. 1991); In re Pendleton, No. CIV.A.90-1091, 1990 WL 29645, at *1 (E.D. Pa. March

15, 1990); Fleet v. United States Consumer Council, Inc., No. CIV.A.89-7527, 1990

WL 18926, at *1 (E.D. Pa. Feb. 23, 1990). The sentiment was not unanimous, however. In In re Rheam, 137 B.R. 151, 152 (Bankr. E.D. Pa.), vacated in part on other

grounds, 142 B.R. 698 (E.D. Pa. 1992), the bankruptcy court thoroughly addressed

“the now-controversial issue” and held that there is the “right and duty” to review

uncontested fee petitions.

505. In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 841 (3d Cir. 1994).

506. Id. at 845 (quoting Lindy Bros. Builders v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (en banc)).

507. Id.
The Obligation of Bankruptcy Courts to Examine Fee Petitions 103

duce it. Much more can be done to control the attorneys’ fees process

(in both the district courts and the bankruptcy courts) by case management, discussed infra Part 4.
This page is left blank intentionally to facilitate printing of

this document double-sided.
105

IV

Techniques for Managing

Attorneys’ Fees

This part covers case-management techniques that judges use for

controlling the attorneys’ fees process. Most of the ideas were gleaned

from interviews with judges conducted in 1993 and 2001.508 When

possible, those interviewed in 1993 updated their statements for this

monograph’s revision. Lawyers, computer specialists, and U.S. trustees were also interviewed.

Most of the time that judges spend on fees involves reviewing fee

applications and conducting hearings. We consider methods for performing each of these tasks. We also discuss selecting lead counsel

through a competitive bidding process. Finally, we discuss rules of

thumb that may apply to either hearings or review of fee applications.

A. Facilitating Review of Fee Applications

According to most of the judges interviewed, reviewing fee applications to ensure their reasonableness is the most burdensome aspect of

the attorneys’ fees process. Determining the appropriate rate can be

difficult, and assessing the reasonableness of the hours claimed is

more difficult. A number of methods are available to make this process more manageable.

508. For further discussion of judges’ practices in managing and reviewing attorney fee petitions, see Manual for Complex Litigation (Fourth) §14.2 (2004). For

guidance in managing fee litigation, see Fed. R. Civ. P. 23(h) and accompanying

Committee Note.
106 Awarding Attorneys’ Fees and Managing Fee Litigation

1. Sampling

The law permits courts to award only “reasonable” fees, but examining every item in a fee petition can be enormously timeconsuming. A few judges test the reasonableness of the hours claimed

without scrutinizing the entire petition: They “sample” certain parts

of the petition and apply the findings to the entire petition.509 Sampling can be done randomly—for example, every tenth page or tenth

day—or can be done by looking at a discrete activity.510

In Evans v. City of Evanston,511 the Seventh Circuit approved this

approach: “This sampling procedure operates on the reasonable

premise that a lawyer’s billing and work habits and practices are, in

fact, habits and practices, which will uniformly apply to all of the lawyer’s work.”512 Judge James Zagel, the trial judge in that case, explained that he allowed each Evanston defense attorney to select three

stages of the case to be scrutinized. Judge Zagel applied the billing determinations he made in these samples to the entire case.513

509. For example, a former U.S. bankruptcy trustee reported that when she sampled hours billed for “internal communications,” she found they accounted for more

than 50% of the bill. She concluded that too much time was spent on internal communications, and made an across-the-board objection to the entire fee petition. Telephone Interview by Diane Sheehey with Marcy Tiffany, former U.S. trustee (Bankr.

C.D. Cal.) (Apr. 6, 1993).

510. When choosing a discrete activity to sample, Judge Charles E. Matheson

(retired) favored choosing an activity that had been litigated in front of him and with

which he was familiar. Telephone Interview by Diane Sheehey with Judge Charles E.

Matheson (Bankr. D. Colo.) (Apr. 22, 1993).

511. 941 F.2d 473 (7th Cir. 1991).

512. Id. at 476.

513. Telephone Interview by Diane Sheehey with Judge James B. Zagel (N.D. Ill.)

(Apr. 22, 1993). Because he was not satisfied with the three stages chosen by defense

counsel, Judge Zagel chose a fourth stage for sampling. The Seventh Circuit approved

this technique, but expressed a preference for allowing both parties to suggest which

tasks are to be sampled. Evans, 941 F.2d at 476.
Techniques for Managing Attorneys’ Fees 107

2. Requiring a pretrial estimate of fees

Some judges require attorneys at the beginning of the case to submit

an estimate of the hours they anticipate the case will entail.514 A pretrial plan or budget helps a court ensure that counsel approached the

case reasonably from the beginning—the court will be less prone to

make its assessment of reasonableness of fees according to how the

case turned out.515 It also facilitates review of the fee application, because hours in excess of the submission can be presumed unreasonable (although the presumption may be rebutted). In addition, attorneys should be familiar with estimating anticipated hours because

many clients require attorneys to submit estimates for legal work.

3. Computerized billing programs

Computerized billing programs enable judges to analyze fee requests

rapidly and discern such indicia of reasonableness as the ratio of partners to associates and the time spent on various activities, such as discovery, research, intra-office conferences, and travel. A former U.S.

bankruptcy trustee stated that she had used a computerized billing

program’s “sorting” capabilities to discover oddities, such as one attorney’s billing more than twenty-four hours in a single day and attorneys’ use of “rounding,” by which they bill the same amount of

time every day.516

4. Requiring attorneys to categorize records

Difficulty in reviewing fee applications can stem from the opacity of

the information they contain. For instance, if the hours are listed

chronologically by attorney (a common format for client billing), it is

hard to ascertain how many hours are spent on a discrete activity.

Therefore, some judges require that hours be categorized. Judge

Grady, in In re Continental Illinois Securities Litigation,

517 required at514. For example, Judge Ivan Lemelle reported requiring a confidential, pretrial

estimate of hours in order to facilitate settlement of fee disputes. Telephone Interview

by Diane Sheehey with Judge Ivan L.R. Lemelle (E.D. La.) (Apr. 27, 1993).

515. See supra text accompanying notes 152–53.

516. Telephone Interview by Diane Sheehey with Marcy Tiffany, former U.S.

trustee (Bankr. C.D. Cal.) (Apr. 6, 1993).

517. 572 F. Supp. 931 (N.D. Ill. 1983).
108 Awarding Attorneys’ Fees and Managing Fee Litigation

torneys to submit time records chronologically by activity rather than

by attorney.518

Local rules and guidelines may also require categorization. For

example, in civil rights and discrimination cases, the U.S. District

Court for the District of Maryland requires that time records be organized by litigation phase.519 The U.S. Bankruptcy Court for the

Northern District of California has guidelines that encourage categorized time records and discourage “clumping,” that is, grouping several discrete tasks into one time entry.520

5. Having defendants submit records

Many judges agree withJudge Edward Becker of the Third Circuit that

“the most difficult aspect of handling fee awards is assessing how

much time it should have taken a lawyer to do a given piece of

work.”521 Some judges make this task easier, and reduce disputes, by

requiring defense counsel to submit their own billing records. These

records provide a reference point for particular activities: If defendants claim that plaintiffs spent too much time researching an issue, it

is instructive to see how much time their counsel spent.522 On occasion, this method will uncover blatant contradictions, such as billing

unequal hours for attending the same conference. However, there

cannot always be an exact correspondence between the defendant’s

hours and the plaintiff’s hours. For example, if a plaintiff spends few

hours writing a complaint and it contains vague legal theories, the

defendant will need to spend more time figuring out the complaint.523

518. Id. at 934. See also Tom Willging, Judicial Regulation of Attorneys’ Fees:

Beginning the Process at Pretrial (Federal Judicial Center 1984) 30–32.

519. See infra Appendix A (Appendix B to Local Rules, paragraph 1b).

520. Guidelines for Compensation and Expense Reimbursement of Professionals

and Trustees, attached as Appendix B.

521. Telephone Interview by Diane Sheehey with Judge Edward Becker (3d Cir.)

(May 25, 1993).

522. For example, Judge William Browning found “a significant amount of discrepancies” when he required defendants to submit their records in one case. Telephone Interview by Diane Sheehey with Judge William D. Browning (D. Ariz.) (Apr.

21, 1993).

523. Telephone Interview by Diane Sheehey with Judge James B. Zagel (N.D. Ill.)

(Apr. 22, 1993).
Techniques for Managing Attorneys’ Fees 109

B. Selection of Lead Counsel by Competitive Bidding

Judge Vaughn Walker developed a method for awarding fees in common fund cases—selecting class counsel through competitive bidding.

In a celebrated case,524 he had each firm that wanted to represent the

class submit an application (under seal) that established the firm’s

qualifications and specified a schedule of percentages according to

which it would request fees.525 He reasoned that bidding “most closely

approximates the way class members themselves would make these

decisions and should result in selection of the most appropriately

qualified counsel at the best available price.”526 In a subsequent opinion, Judge Walker expressed satisfaction with the result: he described

“arrangements fully consistent with the...standard of reasonable

compensation” and “accomplished without the ‘protracted, complicated, and exhausting’ fee litigation that typically accompanies lodestar determinations.”527

Judge Walker has used the method more than once.528 He notes

that he does not necessarily appoint the lowest bidder as class counsel—quality and experience must be considered.529

Over time, judges who have used bidding to select counsel have

developed guidelines or required specific procedures. The following is

a brief overview of these guidelines and procedures.530

524. In re Oracle Sec. Litig., 131 F.R.D. 688 (N.D. Cal.), modified, 132 F.R.D. 538

(N.D. Cal. 1990). See supra note 474.

525. The bid of the firm selected called for different percentages for different

ranges of recovery: 24% of the first $1 million recovered, 20% of the next $4 million,

16% of the next $10 million, and 12% of any additional recovery. These percentages

were to apply if the case was resolved within a year; higher percentages were to apply

otherwise.

526. Oracle, 131 F.R.D. at 690.

527. Oracle, 132 F.R.D. at 547–48.

528. In re Quintus Sec. Litig., 201 F.R.D. 475 (N.D. Cal. 2001); Wenderhold v.

Cylink Corp., 189 F.R.D. 570 (N.D. Cal. 1999); In re California Micro Devices Sec.

Litig., 168 F.R.D. 257 (N.D. Cal. 1996); In re Wells Fargo Sec. Litig., 156 F.R.D. 223

(N.D. Cal. 1994).

529. Telephone Interview by Diane Sheehey with Judge Vaughn Walker (N.D.

Cal.) (Apr. 21, 1993).
110 Awarding Attorneys’ Fees and Managing Fee Litigation

• Discovery: Bidding is usually performed prior to discovery.531

Judge Milton Shadur explained that because the object of

bidding is to simulate the market, where clients and attorneys

negotiate fees without the benefit of discovery, discovery

should not be a component.532

• Limits on field of potential bidders: Most district courts have

opened bidding to any interested attorney or firm.533 In a

PSLRA case, Judge William Alsup ordered that an invitation

for bidding proposals from potential class counsel be placed

on the case’s Web site.534

• Sealed bids: Sealed bids are usually required.

• Joint bids: Joint bids have been allowed,535 but judges caution

that allowing large firms to collude may chill competition in

the marketplace.536

530. This overview draws heavily from Laural L. Hooper & Marie Leary, Auctioning the Role of Class Counsel in Class Action Cases: A Descriptive Study (Federal

Judicial Center 2001).

531. For cases filed after the Private Securities Litigation Reform Act of 1995,

discovery is stayed until after selection of lead plaintiff and class counsel. 15 U.S.C.

§§772-1(b)(1),78u-4(b)(3)(B) (2000).

532. Hooper & Leary, supra note 530, at 30, n.161 (Telephone Interview by

Laural Hooper and Marie Leary with Senior Judge Milton I. Shadur (N.D. Ill.) (July 6,

2001)).

533. Judge Shadur limits bidding to attorneys of record and attorneys who filed

timely motions. Id.

534. See In re Commtouch Software Ltd. Sec. Litig., No. 01-C-00719, Order Re

Lead Plaintiff Selection and Class Counsel Selection 4 (N.D. Cal. June 27, 2001). See

supra text accompanying notes 471–500 for a discussion of when bidding is not allowed under the PSLRA.

535. See In re Comdisco Sec. Litig., 141 F. Supp.2d 951, 955 (N.D. Ill. 2001); In re

Bank One Shareholders Class Actions, 96 F. Supp. 2d 780 (N.D. Ill. 2000); In reCendant Corp. Litig., 182 F.R.D. 144, 151 (D.N.J. 1998).

536. Judge Shadur believes that allowing previously unassociated firms to engage

in joint discussions lessens the quality and freedom of bidding by chilling the market.

Telephone Interview by Laural Hooper and Marie Leary with Senior Judge Milton I.

Shadur (N.D. Ill.) (July 6, 2001). In one case, Judge Vaughn Walker banned two firms

from submitting a joint bid because allowing the well-financed firms to collude

“might very well eliminate whatever possibility remains in this case of a meaningful

competition to secure class counsel designation.” In re Wells Fargo Sec. Litig., 156

F.R.D. 223, 226 (N.D. Cal. 1994). Judge Walker noted, however, that a “joint bid by
Techniques for Managing Attorneys’ Fees 111

• Expenses included in bids: Judge Walker, who has required expenses to be included in all of his bidding cases, explains that

to not include costs would “encourage[ ] counsel to inflate

cost calculations ... . It creates an incentive for the firm to

categorize as costs anything that could conceivably be so considered and diminishes the incentives for the firm to economize.”537

• Time period for bid submission: In cases surveyed,538 time periods for bid submission ranged from eight to fifty-four calendar days.539

Even judges who have not used the “bidding” approach recommend negotiating a fee at the outset of a case that is likely to create a

common fund.540

C. Eliminating or Streamlining Hearings

A number of judges have adopted measures that preclude the need for

or at least streamline fee hearings.

1. Tentative ruling

To avoid unnecessary hearings, Judge Geraldine Mund issues a tentative ruling on the fee petition.541 Judge Mund’s judicial assistant faxes

two or more firms otherwise too small to take on class counsel responsibilities would

introduce a new competitor to the selection process.” Id.

537. Wenderhold v. Cylink Corp., 189 F.R.D. 570, 573 (N.D. Cal. 1999).

538. See Hooper & Leary, supra note 530, at 49.

539. The latter time period covers an extension of the bidding period in one case

and a second round of bidding in another. Hooper & Leary, supra note 530, at 49.

540. The Third Circuit Task Force recommended establishing a percentage at the

“earliest practicable moment.” Court Awarded Attorney Fees: Report of the Third

Circuit Task Force, reprinted in 108 F.R.D. 237, 255 (1985). Even if the percentage is

not established early on, the court can tell the parties that the percentage method will

be used. This will reduce their incentive to increase hours expended and can induce

early settlement. As a case progresses, the court may find that the lodestar is more

suitable than a percentage, and thus may want to shift from a percentage to the lodestar. See id. at 272. Therefore, the court might require plaintiff’s counsel to maintain

billing records.

541. Telephone Interview by Diane Sheehey with Judge Geraldine Mund (C.D.

Cal.) (Apr. 2, 1993) (updated by mail Jan. 6, 2004).
112 Awarding Attorneys’ Fees and Managing Fee Litigation

the tentative ruling to lead counsel with instructions that the ruling be

given to each legal professional involved in the case. If counsel submits to the ruling, he or she faxes back an acceptance letter and does

not appear. If a party shows up at the hearing and objects, Judge

Mund continues the matter. If there is no objection, the tentative

ruling becomes final and counsel submits an order on it. However, if

counsel chooses not to submit to the tentative ruling and argues

against it, Judge Mund will not reimburse counsel for the appearance

if she is not persuaded to change the ruling. The form Judge Mund

faxes to lead counsel is reproduced infra Appendix C. Although Judge

Mund sits in bankruptcy court, tentative rulings could cut down on

the number of hearings in district courts as well. And by alerting

counsel to parts of the petition that the judge finds troublesome, tentative rulings help focus hearings that do take place.

2. Written declaration in lieu of testimony

To streamline contested fee hearings, attorneys may present evidence

of their hours by way of written declaration in lieu of direct testimony.542

3. Informal conference

An informal conference can either eliminate the need for or focus a

fee hearing. Judge William Schwarzer sees great potential in holding

an informal conference to narrow and define issues before a hearing.543

D. General Techniques

The above techniques are specific measures for facilitating review of

applications and avoiding or streamlining hearings. Some more general ideas for managing fees also emerged from our interviews.

542. See Charles Richey, A Modern Management Technique for Trial Courts to

Improve the Quality of Justice: Requiring Direct Testimony to Be Submitted in Written

Form Prior to Trial, 72 Geo. L.J. 73 (1983) (advocating this technique for trials).

543. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.),

Washington, D.C. (Mar. 18, 1993).
Techniques for Managing Attorneys’ Fees 113

1. Setting a framework early in the case

Many judges stress the importance of informing attorneys, early in the

case, what is expected of them in regard to attorneys’ fees. Some

judges lay down specific instructions at the outset of the case.544

Ground rules can cover staffing at depositions, hearings, and trials;

rates of compensation for various levels of legal work; communications among attorneys; and expenses.545 Judges should not hesitate to

require lawyers to resubmit unclear or incomprehensible fee petitions.

2. Local rules, guidelines, and written opinions

A number of courts have adopted billing guidelines or local rules on

attorneys’ fees. For example, the U.S. District Court for the District of

Maryland adopted guidelines for determining attorneys’ fees in civil

rights and discrimination cases.546 The guidelines require that the fee

application be organized by litigation phase.547 The guidelines also list

compensable and non-compensable time, and set hourly rate ranges

for attorneys.

In contrast to this last aspect of the Maryland guidelines, the

Southern District of Texas Bankruptcy Court’s Order Regarding

Chapter 13 Attorney’s Fees548 set aside previously adopted benchmark

fees. Instead the court adopted a market approach to attorneys’

fees.549

Many bankruptcy courts publish ground rules for reimbursement

of attorneys and other professionals so that no one is surprised at the

end of the proceeding.550

544. See, e.g., In re Cont’l Ill. Sec. Litig., 572 F. Supp. 931 (N.D. Ill. 1983). See

also Tom Willging, Judicial Regulation of Attorneys’ Fees: Beginning the Process at

Pretrial (Federal Judicial Center 1984), a study demonstrating the legal profession’s

support for Judge Grady’s pretrial order regulating attorneys’ fees in that case.

545. Cont’l Illinois, 572 F. Supp. at 933–35.

546. See infra Appendix A.

547. See supra text accompanying notes 517–20.

548. Sept. 4, 2002.

549. See infra Appendix D.

550. See supra text accompanying notes 544–45. A copy of the Northern District

of California Bankruptcy Court’s Guidelines for Compensation and Expense Reimbursement of Professionals and Trustees is presented in Appendix B.
114 Awarding Attorneys’ Fees and Managing Fee Litigation

Many judges emphasize that, one way or another, it is helpful for

a court to establish and publicize a modus operandi concerning attorneys’ fees. Guidelines should at least direct attorneys to submit fee

applications in a readable and comprehensible form and to provide

appropriate informative summaries to save the judge from having to

plow through voluminous backup data.

3. Delegation

At every stage of the fee process, the court should consider calling on

others for assistance.

a. Law clerks, assistants, and deputies

Law clerks, judicial assistants, and even deputies can help with the

sometimes onerous task of cross-checking attorneys’ claims for time

against court records. For example, an assistant can compare an attorney’s claim for appearances against the court reporter’s or deputy’s

time records.551 A law clerk can pull a motion out of the court file to

check if time billed for it is reasonable.552 Clerks can also check final

petitions against interim submissions.553

b. Magistrate judges

Referral of attorneys’ fees issues to magistrate judges varies throughout the courts. Many judges call on magistrate judges to handle fees in

complex cases. Judge Jack Weinstein says that in large cases that settle,

and in which the magistrate judge has handled discovery, he refers the

attorneys’ fees issue to the magistrate judge with guidelines on what is

compensable.554 In a fully tried complex case, however, Judge Wein551. Telephone Interview by Diane Sheehey with Judge William D. Browning

(D. Ariz.) (Apr. 21, 1993).

552. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.),

Washington, D.C. (Mar. 18, 1993).

553. Telephone Interview by Diane Sheehey with Judge Norma Shapiro (E.D.

Pa.) (May 12, 1993).

554. Telephone Interview by Diane Sheehey with Judge Jack B. Weinstein

(E.D.N.Y.) (Apr. 6, 1993), updated by mail (Jan. 5, 2004).
Techniques for Managing Attorneys’ Fees 115

stein handles the fees issues because he has seen the legal work played

out before him.555

c. Special masters and alternative dispute resolution

Some judges appoint special masters to assist with attorneys’ fees, especially in complex cases. Professor Laura Bartell, who has served as a

special master, notes that the parties liked it

because it meant the fee application was going to be decided fast. They were

very happy to see that somebody had responsibility for this who was not

going to be distracted by a docket, by the Speedy Trial Act, or anything else,

and was just going to focus on this, decide it, write the opinion, and issue it

so they could get paid.556

Depending on the practices in their district, judges may also wish

to consider alternative dispute resolution for especially complex fee

disputes.

d. Experts

On occasion, a judge may need expert assistance in reviewing fee applications if the judge feels that he or she has been away from practice

so long that he or she is out of touch with billing practices and rates.

Judges are increasingly availing themselves of expert assistance, especially in bankruptcy court.557 Finding such experts is getting easier, as

more lawyers, bar committees, and other consultants are offering to

provide these services.

e. Lead counsel and class actions

The management of attorneys’ fees in class actions presents unique

issues and options. First, the selection of class counsel can be tied to

the attorneys’ fees process. Second, Federal Rule of Civil Procedure

555. Id.

556. Telephone Interview by Diane Sheehey with Laura B. Bartell (Apr. 9, 1993),

updated by mail (Jan. 5, 2004). At the time of the interview, Professor Bartell was a

partner with Shearman & Sterling. She is now Associate Professor at Wayne State

University Law School.

557. Judge Sidney Brooks, for example, has used court-appointed experts to examine fees in several cases. Telephone Interview by Diane Sheehey with Chief Judge

Sidney Brooks (Bankr. D. Colo.) (Apr. 1, 1993), updated by mail (Jan. 2004).
116 Awarding Attorneys’ Fees and Managing Fee Litigation

23(e) requires court approval of class action settlements, many of

which include attorneys’ fees, and courts can take measures that make

fee settlement fairer and easier for the court to review.

Additionally, in class actions, lead counsel can be given chores

that facilitate the judge’s management of fees. For example, lead counsel can supervise fee petitions submitted by all law firms.558

E. Conclusion

The techniques described in this section are not exhaustive. Apart

from presenting ideas for judges to consider, this discussion is intended to encourage innovation in judges’ efforts to manage the attorneys’ fees process.

558. Telephone Interview by Diane Sheehey with Judge Norma Shapiro (E.D.

Pa.) (May 12, 1993), updated by mail (Dec. 29, 2003).
117

Appendix A

Local Rules of the U.S. District Court

for the District of Maryland,

Appendix B (2004)

APPENDIX B: RULES AND GUIDELINES FOR DETERMINING

LODESTAR ATTORNEYS’ FEES IN CIVIL RIGHTS

AND DISCRIMINATION CASES1

1. Mandatory Rules Regarding Billing Format, Time Recordation,

and Submission of Quarterly Statements

a. Time shall be recorded by specific task and lawyer or other

professional performing the task as set forth more fully in L.R.

109.2.b.

b. Fee applications, accompanied by time records, shall be submitted in the following format organized by litigation phase2

1. These rules and guidelines apply to cases in which a prevailing party would be

entitled to reasonable attorneys’ fees under 42 U.S.C. § 1988(b) and to cases brought

under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans With Disabilities Act, ERISA, the Rehabilitation Act, the Individuals With Disabilities Education Act, the Family and Medical Leave Act, the Fair Credit Reporting Act, and equivalent statutes. They do not

apply to Social Security cases.

2. In general, preparation time and travel time should be reported under the

category to which they relate. For example, time spent preparing for and traveling to

and from a Court hearing should be recorded under the category “Court hearings.”

Factual investigation should also be listed under the specific category to which it relates. For example, time spent with a witness to obtain an affidavit for a summary

judgment motion or opposition should be included under the category “motions
118 Awarding Attorneys’ Fees and Managing Fee Litigation

i. case development, background investigation and case

administration (includes initial investigations, file setup,

preparation of budgets, and routine communications

with client, co-counsel, opposing counsel, and the Court);

ii. pleadings;

iii. interrogatories, document production, and other written

discovery;

iv. depositions (includes time spent preparing for depositions);

v. motions practice;

vi. attending Court hearings;

vii. trial preparation and post-trial motions;

viii. attending trial;

ix. ADR; and

x. fee petition preparation.

c. Counsel for a party intending to seek fees if the party prevails

shall submit to opposing counsel quarterly statements showing the amount of time spent on the case and the total value

of that time. These statements need not be in the “litigation

phase” format provided in Guideline 1.b or otherwise reflect

how time has been spent. The first such statement is due at

the end of the first quarter in which the action is filed.

d. Upon request by the Judge (or private mediator agreed upon

by the parties) presiding over a settlement conference, counsel

for all parties (with the exception of public lawyers who do

not ordinarily keep time records) shall turn over to that officer (or mediator) statements of time and the value of that

practice.” Similarly, a telephone conversation or a meeting with a client held for the

purpose of preparing interrogatory answers should be included under the category

“Interrogatories, document production and other written discovery.” Of course, each

of these tasks must be separately recorded in the backup documentation in accordance with Guideline 1.a.
Appendix A 119

time in the “litigation phase” format provided in Guideline

1.b.

e. If during the course of a fee award dispute a Judge orders that

the billing records of counsel for the party opposing fees must

be turned over to the party requesting fees, those billing records shall be submitted in the “litigation phase” format.

2. Guidelines Regarding Compensable and Non-compensable Time

a. Where plaintiffs with both common and conflicting interests

are represented by different lawyers, there shall be a lead attorney for each task (e.g., preparing for and speaking at depositions on issues of common interest and preparing pleadings,

motions, and memoranda), and other lawyers shall be compensated only to the extent that they provide input into the

activity directly related to their own client’s interests.

b. Only one lawyer for each separately represented party shall be

compensated for attending depositions..3

c. Only one lawyer for each party shall be compensated for client

and third party conferences.

d. Only one lawyer for each party shall be compensated for attending hearings.4

3. Departure from this guideline would be appropriate upon a showing of a valid

reason for sending two attorneys to the deposition, e.g. that the less senior attorney’s

presence is necessary because he organized numerous documents important to the

deposition but the deposition is of a critical witness whom the more senior attorney

should properly depose. Departure from the guideline also would be appropriate

upon a showing that more than one retained attorney representing the defendant

attended the deposition and charged the time for her attendance. (If two lawyers from

a public law office representing a defendant attend a deposition, the Court should

consider this fact and the role played by the second lawyer, i.e., whether she provided

assistance, including representation of a separate public agency or individual defendant, or was present for merely educational purposes, in determining whether plaintiff should also be compensated for having a second lawyer attend.)

4. The same considerations discussed in footnote 3 concerning attendance by

more than one lawyer at a deposition also apply to attendance by more than one lawyer at a hearing. There is no guideline as to whether more than one lawyer for each
120 Awarding Attorneys’ Fees and Managing Fee Litigation

e. Generally, only one lawyer is to be compensated for intraoffice conferences. If during such a conference one lawyer is

seeking the advice of another lawyer, the time may be charged

at the rate of the more senior lawyer. Compensation may be

paid for the attendance of more than one lawyer at periodic

conferences of defined duration held for the purpose of work

organization and delegation of tasks in cases where such conferences are reasonably necessary for the proper management

of the litigation.

f. Travel

i. Whenever possible time spent in traveling should be devoted to doing substantive work for a client and should be

billed (at the usual rate) to that client. If the travel time is

devoted to work for a client other than the matter for

which fees are sought, then the travel time should not be

included in any fee request. If the travel time is devoted to

substantive work for the client whose representation is the

subject of the fee request, then the time should be billed

for the substantive work, not travel time.

ii. Up to 2 hours of travel time (each way and each day) to

and from a Court appearance, deposition, witness interview, or similar proceeding that cannot be devoted to

substantive work may be charged at the lawyer’s hourly

rate.

iii. Time spent in long-distance travel above the 2 hours limit

each way, that cannot be devoted to substantive work,

may be charged at one-half of the lawyer’s hourly rate.

party is to be compensated for attending trial. This must depend upon the complexity

of the case and the role that each lawyer is playing. For example, if a junior lawyer is

present at trial primarily for the purpose of organizing documents but takes a minor

witness for educational purposes, consideration should be given to billing her time at

a paralegal’s rate.
Appendix A 121

3. Guidelines Regarding Hourly Rates5

a. Lawyers admitted to the bar for less than five years: $135-170.

b. Lawyers admitted to the bar for five to eight years: $150-225.

c. Lawyers admitted to the bar for more than eight years: $200-

275.

d. Paralegals and law clerks: $90.

4. Reimbursable Expenses

a. Generally, reasonable out-of-pocket expenses (including longdistance telephone calls, express and overnight delivery services, computerized on-line research and faxes) are compensable at actual cost.

b. Mileage is compensable at the rate of reimbursement for official government travel in effect at the time the expense was

incurred.

c. Copy work is compensable at the rate established by the Court

for taxation of costs.

5. These rates are intended solely to provide practical guidance to lawyers and

judges when requesting, challenging and awarding fees. The factors established by

case law obviously govern over them. However, the guidelines may serve to make the

fee petition less onerous by narrowing the debate over the range of a reasonable

hourly rate in many cases. The guidelines were derived by informally surveying members of the bar concerning hourly rates paid on the defense side in employment discrimination and civil rights cases and adding an upward adjustment to account for

the risk of nonpayment faced by a plaintiff’s lawyer in the event that her client does

not prevail. The guideline rates also are generally comparable to those applied by the

Court in several recent cases involving the award of fees to plaintiffs’ counsel after

considering affidavits submitted in support of such rates. They do not apply to cases

governed by the Prison Litigation Reform Act, which sets an hourly rate by statute.
This page is left blank intentionally to facilitate printing of

this document double-sided.
123

Appendix B

Guidelines for Compensation and

Expense Reimbursement of

Professionals and Trustees,

U.S. Bankruptcy Court for the

Northern District of California

United States Bankruptcy Court

Northern District of California

Guidelines for Compensation and Expense Reimbursement

of Professionals and Trustees

The following guidelines are promulgated pursuant to B.L.R. 9029-1

and govern the most significant issues related to applications for

compensation and expense reimbursement. The guidelines cover the

narrative portion of an application, time records and expenses. They

apply in their entirety to professionals seeking compensation under 11

U.S.C. § 330 and, where indicated, to Chapter 7 and Chapter 11 trustees. The guidelines are not intended to cover every situation. The

court is advised that compliance with these guidelines will satisfy the

requirements of the United States Trustee.

I. Guidelines Applicable to Attorneys and Other Professionals

The Narrative

1. Employment and Prior Compensation—The application

should disclose the date of the order approving applicant’s

employment and contain a clear statement itemizing the date
124 Awarding Attorneys’ Fees and Managing Fee Litigation

of each prior request for compensation, the amount requested, the amount approved and the amount paid.

2. Case Status—With respect to interim requests, the application should briefly explain the history and the present posture

of the case.

In Chapter 11 cases, the information furnished should describe the general operations of the debtor; whether the business of the debtor, if any, is being operated at a profit or loss;

the debtor’s cash flow; whether a plan has been filed, and if

not, what the prospects are for reorganization and when it is

anticipated that a plan will be filed and a hearing set on the

disclosure statement.

In Chapter 7 cases, the application should contain a report of

the administration of the case including the disposition of

property of the estate; what property remains to be disposed

of; why the estate is not in a position to be closed; and

whether it is feasible to pay an interim dividend to creditors.

In both Chapter 7 and Chapter 11 cases, the application

should state the amount of money on hand in the estate and

the estimated amount of other accrued expenses of administration. On applications for interim fees, the applicant

should orally supplement the application at the hearing to

inform the Court of any changes in the current financial

status of the debtor’s estate since the filing of the application.

With respect to final requests, applications should meet the

same criteria except, where a Chapter 7 Trustee’s final account is being heard at the same time, the financial information in the final account need not be repeated.

Fee applications submitted by special counsel seeking compensation from a fund generated directly by their efforts, auctioneers, real estate brokers, or appraisers do not have to

comply with the above. For all other applications, when more

than one application is noticed for the same hearing, they
Appendix B 125

may, to the extent appropriate, incorporate by reference the

narrative history furnished in a contemporaneous application.

3. Project Billing—In any application exceeding $10,000, or

when the professional’s anticipated services for the case will

exceed $20,000, the narrative should categorize by subject

matter and separately discuss each project or task. All work

for which compensation is requested should be in a category.

The professional may use reasonable discretion in defining

projects for this purpose, provided that the application provides meaningful guidance to the Court as to the complexity

and difficulty of the task, the professional’s efficiency, and the

results achieved. The number of billing categories created

should take account of the total amount of fees and expenses

sought in the case. Thus, for example, an application totaling

$100,000 should generally be broken into more categories

than an application totaling $10,000, even if the nature of the

work represented in the two applications is otherwise similar.

There is no minimum amount necessary to justify the creation of a new billing category. The maximum amount that

should be included in a single category should generally be

$20,000. This cap may be exceeded where further breakdown

is impractical (e.g., courtroom time in a long trial). Generally,

each category should contain less than $20,000. Miscellaneous

items may be included in a category such as case administration, but such a category should not generally represent more

than 15% of the fee request.

Work in a main case should be broken into categories appropriate to the size, chapter, and complexity of the case, and the

role of the professional. Generally, each adversary proceeding

should be set forth in a separate category. Within each adversary proceeding, subcategories should be created for pleadings,

discovery, motions, and trial. In complex adversary proceedings, additional categories may be appropriate.

With respect to each project or task, the number of hours

spent, the results obtained, and the amount of compensation
126 Awarding Attorneys’ Fees and Managing Fee Litigation

and expenses requested should be set forth at the conclusion

of the discussion of that project or task. Please also note the

requirement in Guideline 11 relating to time records by project.

4. Billing Summary—Hours and total compensation requested

in each application should be aggregated and itemized as to

each professional and paraprofessional who provided compensable services.

5. Paraprofessionals—Fees may be sought for paralegals, professional assistants and law clerks only if identified as such and if

the following requirements are met:

a. The services for which compensation is sought would

have had to be done by the professional if not done by the

paraprofessional, and would have been compensable under these guidelines;

b. The person who performed the services is specially

trained or is a law school student, and is not primarily a

secretary or clerical worker; and

c. The application includes a resume or summary of the

paraprofessional’s qualifications.

6. Preparation of Application—Reasonable fees for preparation

of a fee application may be requested. Fees for preparation of

a fee application may not exceed five percent of the total

amount of fees and costs requested in the application. This

five percent guideline is a ceiling rather than a floor; preparation expenses equaling five percent are not presumptively reasonable. The aggregate number of hours spent, the amount

requested and the percentage of the total request which the

amount represents must be disclosed. If the actual time spent

will be reflected and charged in a future fee application, this

fact should be stated but an estimate nevertheless provided.

7. Client Review of Billing Statement—A debtor in possession,

trustee or official committee shall exercise reasonable business

judgment in monitoring the fees and expenses of the estate’s
Appendix B 127

professionals. Billing statements should be sent to the employing entity (debtor in possession, trustee or official committee) on a monthly basis. A fee application shall be sent to

the employing entity at least 20 days prior to the scheduled

hearing date. The application shall be transmitted with a

cover letter that contains the following statement:

The court’s Guidelines for Compensation and Expense Reimbursement of Professionals and Trustees provide that a debtor in

possession, a trustee or an official committee must exercise reasonable business judgment in monitoring the fees and expenses of

the estate’s professionals. We invite you to discuss any objections,

concerns or questions you may have with us. The Office of the

United States Trustee will also accept your comments. The court

will also consider timely filed objections by any party in interest

at the time of the hearing.

A copy of the transmittal letter shall be attached to the application.

8. Certification—Each application for compensation and expense reimbursement must contain a certification by the

professional designated by the applicant with the responsibility in the particular case for compliance with these guidelines

(“Certifying Professional”) that: (a) the Certifying Professional has read the application; (b) to the best of the Certifying Professional’s knowledge, information and belief, formed

after reasonable inquiry, the compensation and expense reimbursement sought is in conformity with these guidelines,

except as specifically noted in the certification application;

and (c) the compensation and expense reimbursement requested are billed at rates, in accordance with practices, no

less favorable than those customarily employed by the applicant and generally accepted by the applicant’s clients.

9. Short Form Applications—Where the professional is filing

only a final request for compensation in a Chapter 7 case and

the request, exclusive of costs, does not exceed $15,000 for the

case, and has not charged in excess of one hour of time for
128 Awarding Attorneys’ Fees and Managing Fee Litigation

preparation of the application, the professional has the option

of utilizing the approved Chapter 7 form application.

In a Chapter 13 case, where the professional has utilized and

filed the Rights and Responsibilities of Chapter 13 Debtors

and their Attorneys, the professional has the option of utilizing the approved Chapter 13 form application when seeking

compensation in excess of that approved at the time of confirmation.

Copies of the approved form applications are available in the

Clerk’s Office.

Time Records 

10. Time Records Required—All professionals, except auctioneers, real estate brokers, appraisers and those employed on a

contingency fee basis, must keep accurate contemporaneous

time records. The Court may, however, specifically direct that

time records be kept on a contingent fee matter.

11. Time Records By Project—In any application exceeding

$10,000, or where the professional’s anticipated services for

the case will exceed $20,000, time records should be kept by

categories as described in Paragraph 3 relating to Project

Billing above. Time records should be sorted, assembled and

attached to the application by category corresponding to the

discussion in the narrative.

12. Increments—Professionals are required to keep time records

in minimum increments no greater than six minutes. Professionals who utilize a minimum billing increment greater than

.1 hour are subject to a substantial reduction of their requests.

13. Descriptions—At a minimum, the time entries should identify the person performing the services, the date performed,

what was done and the subject involved. Mere notations of

telephone calls, conferences, research, drafting, etc., without

identifying the matter involved, may result in disallowance of

the time covered by the entries.
Appendix B 129

14. Clumping—If a number of separate tasks are performed on a

single day, the fee application should disclose the time spent

for each such task (i.e., no “grouping” or “clumping”).

15. Conferences—Professionals should be prepared to explain

time spent in conferences with other professionals or paraprofessionals in the same firm. Failure to justify this time may

result in disallowance of all fees related to such conferences.

16. Multiple Professionals—Professionals should be prepared to

explain the need for more than one professional or paraprofessional from the same firm at the same court hearing,

deposition or meeting. Failure to justify this time may result

in compensation for only the person with the lowest billing

rate.

17. Airplane Travel Time—Airplane travel time is not compensable, but work actually done during a flight is compensable. If significant airplane travel time is expected in a

case, specific guidelines should be obtained for that case.

18. Administrative Tasks—Time spent in addressing, stamping

and stuffing envelopes, filing, photocopying or “supervising”

any of the foregoing is not compensable, whether performed

by a professional, paraprofessional or secretary.

Expenses 

19. Firm Practice—All expenses for which reimbursement is

sought must be of the kind, and at the least expensive rate, the

applicant customarily charges nonbankruptcy/insolvency clients.

20. Actual Cost—Is defined as the amount paid to a third party

provider of goods or services without enhancement for handling or other administrative charge.

21. Documentation—Must be retained and made available upon

request for all expenditures in excess of $50.00. Where possible, receipts should be obtained for all expenditures.
130 Awarding Attorneys’ Fees and Managing Fee Litigation

22. Office Overhead—Not reimbursable. Overhead includes: secretarial time, secretarial overtime, word processing time,

charges for after-hour and weekend air conditioning and

other utilities, and cost of meals or transportation provided to

professionals and staff who work late or on weekends.

23. Word Processing—Not reimbursable.

24. Computerized Research—Actual cost.

25. Paraprofessional Services—May be compensated as a paraprofessional under § 330 but not charged or reimbursed as an

expense.

26. Professional Services—A professional employed under §327

may not employ, and charge as an expense, another professional (e.g., special litigation counsel employing an expert

witness) unless the employment of the second professional is

approved by the Court prior to the rendering of services.

27. Photocopies (Internal)—Charges must be disclosed on an aggregate and per page basis. If the per page cost exceeds 20

cents, the professional must demonstrate to the satisfaction of

the Court, with data, that the per page cost represents a good

faith estimate of the actual cost of the copies, based upon the

purchase or lease cost of the copy machine and supplies

therefor including the space occupied by the machine, but not

including time spent in operating the machine.

28. Photocopies (Outside)—Actual cost.

29. Postage—Actual cost.

30. Overnight Delivery—Actual cost where shown to be necessary.

31. Messenger Service—Actual cost where shown to be necessary.

An in-house messenger service is reimbursable but the estate

cannot be charged more than the cost of comparable services

available outside the firm.
Appendix B 131

32. Facsimile Transmission—Actual cost of telephone charges for

outgoing transmissions are reimbursable. Transmissions received are reimbursable on a per page basis. If the per page

cost exceeds 20 cents, the professional must demonstrate to

the satisfaction of the Court, with data, that the per page cost

represents a good faith estimate of the actual cost of the copies, based upon the purchase or lease cost of the facsimile machine and supplies therefor including the space occupied by

the machine, but not including time spent in operating the

machine.

33. Long Distance Telephone—Actual cost.

34. Automotive Transportation—Travel of one hour or less

round-trip is not reimbursable. Travel expense for trips in excess of one hour round-trip is reimbursable in accordance

with the amount allowed by the Internal Revenue Service.

(IRC § 274(d) and the current applicable I.R.B. Announcement. At this date the amount is 31 cents per mile.) Travel by

a professional, paraprofessional or other staff member between his or her residence and principal place of business is

not reimbursable regardless of the day of the week or time of

day.

35. Parking—Actual cost, provided that parking for professionals,

paraprofessionals or other staff member at their principal

place of business is not reimbursable regardless of the day of

the week or time of day.

36. Air Transportation—Air travel is expected to be at regular

coach fare for all flights.

37. Hotels—Due to wide variation in hotel costs in various cities,

it is not possible to establish a single guideline for this type of

expense. All persons will be required to exercise discretion

and prudence in connection with hotel expenditures.

38. Meals-Travel—The cost of lunches while a party is away from

the Bay Area, or in the Bay Area from another city, is not re-
132 Awarding Attorneys’ Fees and Managing Fee Litigation

imbursable. Reimbursement may be sought for the reasonable

cost of breakfast and dinner while traveling.

39. Meals-Working—Working meals at restaurants or private

clubs are not reimbursable. Reimbursement may be sought

for working meals only where food is catered to the professional’s office in the course of a meeting with clients, such as a

Creditors Committee, for the purpose of allowing the meeting

to continue through a normal meal period.

40. Amenities—Charges for entertainment, alcoholic beverages,

newspapers, dry cleaning, shoe shines, etc. are not reimbursable.

41. Filing Fees—Actual cost.

42. Court Reporter Fees—Actual cost.

43. Witness Fees—Actual cost.

44. Process Service—Actual cost.

45. UCC Searches—Actual cost.

II. Guidelines Applicable to Trustees

Chapter 7 and Chapter 11 trustees must maintain contemporaneous time records in every case. Time records must be maintained

by project categories. At a minimum, project categories should include: (1) Assets Recap (asset analysis and recovery/asset disposition); (2) Investigation of Financial Affairs of the Debtor; (3)

Claims Administration and Objections; and (4) Fee Applications.

Trustees may add additional categories at their discretion. Trustees are also subject to Guidelines 4, 5 (subject to § 326), 10, 12,

13 and 19-45 dealing with expenses.

In cases in which the trustee’s compensation request is anticipated

to be $15,000 or less, the trustee may submit a brief narrative description of the services performed and a statement of the amount

of time spent. In cases in which the final compensation exceeds

$15,000, or where an interim request is made and it is anticipated

that the total compensation requested will exceed $15,000, the

trustee’s application must include time records as well as a narra-
Appendix B 133

tive description of the services performed and comply with the

guidelines referenced above.

The guidelines regarding trustee time records shall apply only to

cases filed on or after January 1, 1997.
This page is left blank intentionally to facilitate printing of

this document double-sided.
135

Appendix C

Notice of Tentative Ruling on Fees,

U.S. Bankruptcy Court for the

Central District of California

The following is a copy of the form Judge Geraldine Mund (Central District of California Bankruptcy Court) uses for tentative rulings on fee applications.

NOTICE OF TENTATIVE RULING ON FEES

[Seal]

DATE:

TO:

FROM:

RE: Notice of Tentative Ruling

In re

Case No.

Attached is the tentative ruling on fee applications.

You are to transmit this cover sheet and the tentative rulings to all

other professionals who have applied for fees (if any) and to the office

of the united states trustee.

If you wish to submit on the tentative ruling without appearance,

please send a fax to [name], my judicial assistant, at [phone number]

and notify her of that fact. The tentative ruling will then become the

order of the court. If there is any opposition received to your application (or any party appears to object at the hearing) and they do not
136 Awarding Attorneys’ Fees and Managing Fee Litigation

also agree that the tentative ruling will be the order of the court, I will

continue this matter to a future date for hearing. If you submit on the

tentative, you are to submit a proposed order to the court with the

correct amounts, hearing date, copies, envelopes, etc.

Geraldine Mund

Bankruptcy Judge
137

Appendix D

Order Regarding

Chapter 13 Attorney’s Fees,

U.S. Bankruptcy Court for the

Southern District of Texas

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE: §

§

PLAINTIFF § CASE NO.

ORDER REGARDING CHAPTER 13 ATTORNEY’S FEES

The Court, sitting en banc, reviewed the fees of debtors’ counsel in

several chapter 13 cases. This Court has jurisdiction of this proceeding

pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding.

The Court is once again struggling to balance compliance with the

Bankruptcy Code’s requirement concerning attorney fee disclosure

and approval, which apply equally to counsel representing a million

dollar corporation and counsel representing a wage earner trying to

make ends meet, with the reality that the wage earner, his counsel, and

creditors bear an economic cost for this compliance disproportionately high compared to the fees sought and the value of the estate. In

the past, this Court analogized the provision of legal services in chapter 13 cases with the production of a standardized commodity with a

fixed cost. Under that view, the Court streamlined the process for
138 Awarding Attorneys’ Fees and Managing Fee Litigation

chapter 13 attorneys to meet the Bankruptcy Code’s requirements for

fee disclosure and approval by establishing a “benchmark” for fees,

below which the Court did not routinely hold a hearing. Unfortunately, this method has as its unintended consequence the effect of

disguising as efficient and productive, debtor representation which is

in fact poor or simply unresponsive to the needs of the client and the

creditors. Moreover, testimony at the en banc hearing made plain that

reasonable minds differ over what services should be included in a

“standard” chapter 13 case entitling counsel to the “benchmark” fee.

Testimony at the hearing came from attorneys practicing primarily or exclusively consumer bankruptcy law. Counsel varied in experience from 4 years in practice to more than 20 years, with chapter 13

case filings per month of 10 to 40 or more and hourly rates of $200

and up. The testimony generally agreed that 25% to 30% of services

rendered in chapter 13 cases are not ultimately paid due to debtor’s

inability to pay or because counsel did not seek payment believing

that the Court would not compensate the services rendered under the

benchmark fee set for chapter 13 cases. Some attorneys deal with the

benchmark by avoiding client phone calls, avoiding preparing written

responses to motions or objectionable claims, or by screening out

potential clients who have problems that cannot be resolved for

$1,500.

Adhering to the benchmark causes burnout, a frantic pace and

mistakes, and pressures counsel to complete each case within a certain

amount of time at a certain cost regardless of whether a particular client wants more responsiveness and is willing to pay more for it.

Courts in other districts alleviate the pressure on counsel under a

benchmark fee by ending counsel’s case responsibilities at confirmation or by limiting the ability of creditors to object to confirmation.

Evidence was proffered concerning the rise of the consumer price index and the employment cost index since this Court last evaluated the

benchmark fee. Testimony indicated that potential chapter 13 clients

seek the lowest possible fee before hiring an attorney. This market

demand combined with the competition of experienced reliable consumer counsel should help maintain the availability of low cost competent counsel for debtors of limited means. With these factors in

mind and with the goal that competent reliable counsel be available to
Appendix D 139

serve the ever-increasing numbers of consumer debtors, the Court

adopts a market approach to chapter 13 attorney fees and sets aside

the benchmark adopted previously. The benefit and necessity of counsel services to the debtor in connection with the case will be evaluated

without regard to the benchmark and solely in accordance with the

factors set forth in 11 U.S.C. § 330. The Standing Order for Fee Applications for Debtors’ Counsel in Chapter 13 Cases entered in 1998,

along with its format for Chapter 13 Fee Notice and Chapter 13 Fee

Application (together General Order 1998-4) are superseded by this

order.1

The Court will require fee applications for all fees sought by

debtor’s counsel for services rendered pre-confirmation. The fee application should be filed and a copy delivered to chambers no later

than 5 days prior to confirmation. An order will be entered at confirmation approving the application or setting it for further hearing. To

facilitate fee application review and to reduce the costs associated with

producing a fee application in the format utilized in chapter 11 cases,

counsel may use the truncated format attached to this order as Exhibit

1 in describing the legal services rendered and the actual time expended in the case. Counsel will, nevertheless, need to maintain contemporaneous time records detailing the time expended and hourly

rates charged on each case in the event the Court requires a hearing or

further submission of information in order to determine the reasonableness or necessity of work performed in a particular case. Counsel

will file the fee application with the Court and serve the fee application on debtor, the trustee, the U.S. Trustee and the 5 largest creditors

in the case and file a certificate of service with the Court. Preconfirmation counsel fees will be approved at confirmation of the

debtor’s plan or set for hearing at that time. Post-confirmation services rendered in the case where debtor’s confirmed chapter 13 plan

provides for vesting of the property of the estate in the debtor upon

confirmation, may be paid directly by debtor, otherwise counsel may

file an additional fee application and be paid through debtor’s plan.

1. Similarly, all prior formats for presentation of chapter 13 attorneys fees, such

as the Fact Form and Fee App are superseded by this order.
140 Awarding Attorneys’ Fees and Managing Fee Litigation

Counsel shall also file a timely Rule 2016(b) statement detailing

the compensation paid or agreed to be paid within one year before

date of filing petition, the source of the compensation, and any

agreement to share the compensation and shall update such information with amended Rule 2016(b) statements throughout the case as

further fees are incurred until the case is closed.
Appendix D 141

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE: * CASE NO.

*

*

CHAPTER 13 FEE APPLICATION

Counsel of Debtor in this case requests allowance of compensation and reimbursement of expenses for the time expended, hourly rates, and expenses

incurred shown below. Counsel received no property from the debtor or in

connection with the case except $ ________ pre-petition which was expended in the manner set out below. Counsel seeks payment under the plan

of $ _______.

Type of Case: Business Case _____ or Consumer Case _____ (check one)

Activity Attorney Time

(approximate)

Paralegal Time

(approximate)

Prepetition Client Consultations

Postpetition Client Consultations

Schedules, Plan

Amendments

341 (Preparation and Attendance)

Creditor Contact

Proof of Claim Review

Motion(s) to Dismiss:

# of Motions to Dismiss: 1 2 3 4 5 (circle

one)

Contested Motions:

# of Contested Motions: 1 2 3 4 5 (circle

one)

Specify Type:

Objections to Confirmation:

# of Objections to Confirmation: 1 2 3 4 5

(circle one)
142 Awarding Attorneys’ Fees and Managing Fee Litigation

Activity Attorney Time

(approximate)

Paralegal Time

(approximate)

Adversary Proceeding(s):

# of Adversary Proceedings: 1 2 3 4 5

(circle one)

Specify Type:

Claims Objections/Valuation:

# of Claims Object./Valuations: 1 2 3 4 5

(circle one)

Specify Type:

Confirmation Hearings:

# of Confirmation Hearings: 1 2 3 4 5

(circle one)

Operating Reports

Name of Attorney/Paralegal Hourly Rate Est. Hours Rate x Hours 

1.

2.

Expenses

1.

2.

Date: 

Counsel Name

Counsel Address
Appendix D 143

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE: §

§

§

DEBTOR(S) § CASE NO.

§

CERTIFICATE OF SERVICE

This is to certify that on the ______ day of ______, 20__, a true

and correct copy of the foregoing Chapter 13 Fee Application has

been mailed to the following parties by first class mail:

Debtors

Trustee

U.S. Trustee

Five Largest Creditors

Date: 

Counsel Name

Counsel Address
144 Awarding Attorneys’ Fees and Managing Fee Litigation

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

IN RE: * CASE NO.

*

DEBTOR and * XX-XXXXX-HX-13

JOINT DEBTOR *

*

DEBTOR(S) * Chapter 13

*

ORDER FOR COMPENSATION

The Court, having considered the Chapter 13 Fee Application of

Debtor’s attorney, [ name of debtor’s attorney ] , has concluded that the

Application sets forth a sufficient factual basis in accordance with the

criteria set forth in the matter of [ case name and date ], to warrant

granting the relief sought. It is therefore

ORDERED that, [ name of debtor’s attorney ], be awarded an allowance of attorney’s fees in the amount of $ , and expenses of

$ as an administrative expense.

SIGNED this day of , 20__

______________________________________

UNITED STATES BANKRUPTCY JUDGE
145

Table of Cases

Abbott, Puller & Myers v. Peyser, 124 F.2d 524 (D.C. Cir. 1941), n.320

Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), n.172

Ackerly Communications v. Somerville, 901 F.2d 170 (1st Cir. 1990), nn.117,

129, 132

Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992),

nn.443–44

ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999), nn.117, 302

Agent Orange Product Liability Litigation, In re, 818 F.2d 226 (2d Cir. 1987),

nn.117, 265, 389, 415

Agent Orange Product Liability Litigation, In re, 611 F. Supp. 1296 (E.D.N.Y.

1985), n.389

Aguinaga v. United Food & Commercial Workers International Union, 993

F.2d 1480 (10th Cir. 1993), n.454

Air Crash Disaster at Florida Everglades, In re, 549 F.2d 1006 (5th Cir. 1977),

n.359

Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), nn.137, 160, 228, 230,

234

Alizadeh v. Safeway, 910 F.2d 234 (5th Cir. 1990), n.244

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), nn.1,

6–7, 340, 343, 426–27, 450

American Ass’n of Marriage v. Brown, 593 F.2d 1365 (D.C. Cir. 1979), n.453

American Booksellers Ass’n v. Virginia, 802 F.2d 691 (4th Cir. 1986), n.89

American Council of the Blind v. Romer, 962 F.2d 1501 (10th Cir. 1992),

n.93

American Federation of Government Employees v. FLRA, 944 F.2d 922 (D.C.

Cir. 1991), n.115

Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir. 2000), n.38

Andrews v. Employees’ Retirement Plan, 938 F.2d 1245 (11th Cir. 1991),

n.291

Andrews v. United States, 122 F.3d 1367 (11th Cir. 1997), nn.181, 206
146 Awarding Attorneys’ Fees and Managing Fee Litigation

Art Janpol Volkswagen v. Fiat Motors of North America, 767 F.2d 690 (10th

Cir. 1985), n.290

Ashley v. Atlantic Richfield, 794 F.2d 128 (3d Cir. 1986), n.97

Bailey v. Heckler, 777 F.2d 1167 (6th Cir. 1985), n.248

Bailey v. Meister Brau, 535 F.2d 982 (7th Cir. 1976), n.445

Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988), nn.307, 316

Bank of New England, In re, 134 B.R. 450 (Bankr. E.D. Mass. 1991), n.502

Bank One Shareholders Class Actions, In re, 96 F. Supp.2d 780 (N.D. Ill.

2000), n.535

BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045 (11th Cir.

1994), n.238

Barlow-Gresham Union High School v. Mitchell, 940 F.2d 1280 (9th Cir.

1991), n.87

Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), n.116

Bebchick v. Washington Metropolitan Area Transit Commission, 805 F.2d

396 (D.C. Cir. 1986), n.394

Begley v. HHS, 966 F.2d 196 (6th Cir. 1992), n.165

Bell v. United Princeton Properties, 884 F.2d 713 (3d Cir. 1989), nn.270, 297

Benda v. Grand Lodge, 584 F.2d 308 (9th Cir. 1978), n.441

Benitez v. Collazo-Collazo, 888 F.2d 930 (1st Cir. 1989), n.76

Bennett v. Yoshina, 259 F.3d 1097 (9th Cir. 2001), n.33

Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001), nn.473,

488

Bigby v. Chicago, 927 F.2d 1426 (7th Cir. 1991), n.81

Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299 (9th

Cir. 1979), n.455

Bishop v. Committee on Professional Ethics, 686 F.2d 1278 (8th Cir. 1982),

n.26

Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984), n.292

Black Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648 (3d

Cir. 1986), n.165

Black v. Ryder, 970 F.2d 1461 (6th Cir. 1992), n.451

Blanchard v. Bergeron, 489 U.S. 87 (1989), nn.84, 109, 350

Blazy v. Tenet, 194 F.3d 90 (D.C. Cir. 1999), n.66

Bliss v. Holmes, 867 F.2d 256 (6th Cir. 1988), n.440

Blum v. Stenson, 465 U.S. 886 (1984), nn.114–15, 120, 163, 220, 223–26,

362–63

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), nn.310, 344, 346, 401, 413
Table of Cases 147

Bolar Pharmaceuticals v. Gackenbach, 800 F. Supp. 1091 (E.D.N.Y. 1992),

n.395

Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), n.397

B.P. North American Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975

(9th Cir. 1986), n.321

Bradley v. School Board of Richmond, 416 U.S. 696 (1974), nn.41, 43, 85

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), n.5

Brennan v. United Steelworkers of America, 554 F.2d 586 (3d Cir. 1977),

nn.427–28, 432, 450

Brown v. General Motors, 722 F.2d 1009 (2d Cir. 1983), n.75

Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir. 1988), nn.366, 384, 412,

416

Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n.141

Broyles v. Director, 974 F.2d 508 (4th Cir. 1992), nn.132, 271

Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997),

n.56

Brzonkala v. Morrison, 272 F.3d 688 (4th Cir. 2001), n.343

Buckhannon Board & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, 532 U.S. 598 (2001), nn.29–32

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), nn.14, 278–79

Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), n.119

Burka v. United States Department of Health & Human Services, 142 F.3d

1286 (D.C. Cir. 1998), nn.64, 67

Burroughs v. Board of Trustees, 542 F.2d 1128 (9th Cir. 1976), n.448

Bush, In re, 131 B.R. 364 (Bankr. W.D. Mich. 1991), n.502

Busy Beaver Building Centers, In re, 19 F.3d 833 (3d Cir. 1994), n.505

Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991), nn.148,

182

California Micro Devices Securities Litigation, In re, 168 F.R.D. 257 (N.D.

Cal. 1996), n.528

Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768 (11th Cir. 1991),

nn.365, 385–86, 410

Cange v. Stotler & Co., 913 F.2d 1204 (7th Cir. 1990), n.205

Cann v. Carpenters’ Pension Trust Fund for Northern California, 989 F.2d

313 (9th Cir. 1993), nn.38, 241

Cantwell v. San Mateo, 631 F.2d 631 (9th Cir. 1980), nn.448, 463

Carey v. Crescenzi, 923 F.2d 18 (2d Cir. 1991), n.248

Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir. 1998),

nn.126, 140, 258
148 Awarding Attorneys’ Fees and Managing Fee Litigation

Catullo v. Metzner, 834 F.2d 1075 (1st Cir. 1987), nn.331, 332

Cavanaugh, In re, 306 F.3d 726 (9th Cir. 2002), nn.476, 488, 490–91, 493–95

Cendant Corp. Litigation, In re, 264 F.3d 201 (3d Cir. 2001), nn.475, 477,

480, 482–87, 496–99

Cendant Corp. Litigation, In re, 182 F.R.D. 144 (D.N.J. 1998), nn.478–79,

535

Cendant Corp. Prides Litigation, In re, 243 F.3d 722 (3d Cir. 2001), nn.383,

471

Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th Cir. 2001),

n.34

Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), nn.2, 305, 396

Charves v. Western Union, 711 F.2d 462 (1st Cir. 1983), n.244

Chemicals Manufacturers Ass’n v. EPA, 885 F.2d 1276 (5th Cir. 1989), n.286

Chicago, Milwaukee, St. Paul & Pacific Railroad, In re, 840 F.2d 1308 (7th

Cir. 1988), n.332

Chin, In re, 31 B.R. 314 (Bankr. S.D.N.Y. 1984), n.44

Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206 (2d Cir.

1987), n.314

Church of Scientology v. United States Postal Service, 700 F.2d 486 (9th Cir.

1983), n.252

City of Klawock v. Gustafson, 585 F.2d 428 (9th Cir. 1978), nn.334, 337–38

Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986), n.183

Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992), n.131

Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir. 1982), n.26

Coalition for Clean Air v. Southern California Edison, 971 F.2d 219 (9th Cir.

1992), n.298

Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), nn.110, 198, 215

Columbus Mills v. Freeland, 918 F.2d 1575 (11th Cir. 1990), n.164

Comdisco Securities Litigation, In re, 141 F. Supp.2d 951 (N.D. Ill. 2001),

n.535

Concept Clubs, In re, 125 B.R. 634 (Bankr. D. Utah 1991), n.502

Connolly v. National School Bus Service, Inc., 177 F.3d 593 (7th Cir. 1999),

n.219

Continental Illinois Securities Litigation, In re, 962 F.2d 566 (7th Cir. 1992),

nn.263, 269, 367, 372–73, 378, 400, 517–18

Continental Illinois Securities Litigation, In re, 572 F. Supp. 931 (N.D. Ill.

1983), nn.544–45

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972), n.5

Cooper v. Utah, 894 F.2d 1169 (10th Cir. 1990), nn.87, 217–18
Table of Cases 149

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), nn.127–28, 264, 405,

407

Corder v. Brown, 25 F.3d 833 (9th Cir. 1994), n.239

Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997),

nn.110, 178, 180, 296

Cowan v. Prudential Insurance, 935 F.2d 522 (2d Cir. 1991), n.202

Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir. 1984),

n.124

Crane Co. v. American Standard, 603 F.2d 244 (2d Cir. 1979), n.433

Crane v. Texas, 766 F.2d 193 (5th Cir. 1985), n.149

Cranston v. Hardin, 504 F.2d 566 (2d Cir. 1974), n.336

Crowder v. Housing Authority of Atlanta, 908 F.2d 843 (11th Cir. 1990), n.92

Cullens v. Georgia Department of Transportation, 29 F.3d 1489 (11th Cir.

1994), nn.110, 206

Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), nn.204, 257

Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), nn.113, 270

Cunningham v. Los Angeles, 859 F.2d 705 (9th Cir. 1988), n.216

Curran v. Department of Treasury, 805 F.2d 1406 (9th Cir. 1986), n.115

CVC, Inc., In re, 120 B.R. 874 (Bankr. N.D. Ohio 1990), n.502

Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), nn.124, 267

Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1992), n.149

Dahlem v. Board of Education, 901 F.2d 1508 (10th Cir. 1990), nn.26, 95

Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986), n.108

Davis County Solid Waste Management v. EPA, 169 F.3d 755 (D.C. Cir.

1999), n.117

Davis v. Macon County, 927 F.2d 1473 (9th Cir. 1991), nn.106, 117

Davis v. San Francisco, 976 F.2d 1536 (9th Cir. 1992), nn.106, 118, 124, 146

Davis v. Southeastern Pennsylvania Transportation Authority, 924 F.2d 51

(3d Cir. 1991), nn.135, 204

Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3 (1st Cir. 1991), nn.119,

248

Demier v. Gondles, 676 F.2d 92 (4th Cir. 1982), n.145

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980), n.153

Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), n.407

Devine v. National Treasury Employees Union, 805 F.2d 384 (Fed. Cir.

1986), n.115

Dexter v. Kirschner, 984 F.2d 979 (9th Cir. 1992), n.24
150 Awarding Attorneys’ Fees and Managing Fee Litigation

Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir.

1998), n.64

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982), n.25

Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), n.26

Domegan v. Ponte, 972 F.2d 401 (1st Cir. 1992), nn.158, 205, 208, 297

Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249 (2d Cir.

1987), n.172

Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), n.5

Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982), n.59

Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n.158

Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986), nn.379, 380,

428, 468, 469

Donovan v. Local Union 70, 661 F.2d 1199 (9th Cir. 1981), n.428

Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D. Pa. 1976), n.322

Dowdell v. Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983), nn.144, 147

Durrett v. Jenkins Brickyard, 678 F.2d 911 (11th Cir. 1982), n.244

Eastwood v. National Enquirer, 123 F.3d 1249 (9thCir. 1997), n.16

Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001), n.238

Echols v. Parker, 909 F.2d 795 (5th Cir. 1990), n.291

Edwards v. Heckler, 789 F.2d 659 (9th Cir. 1985), n.448

El Club del Barrio, Inc. v. United Community Corp., 735 F.2d 98 (3d Cir.

1984), nn.91, 97, 101

Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (10th Cir. 1999),

n.97

Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986), n.97

Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382 (8th Cir.

1977), n.455

Erkins v. Bryan, 785 F.2d 1538 (11th Cir. 1986), nn.435, 456

Evans v. City of Evanston, 941 F.2d 473 (7th Cir. 1991), nn.269, 350, 377,

511–13

Evans v. Jeff D., 475 U.S. 717 (1986), nn.73, 98, 100

Exchange National Bank of Chicago v. Daniels, 763 F.2d 286 (7th Cir. 1985),

n.290

E Z Feed Cube, In re, 123 B.R. 69 (Bankr. D. Or. 1991), n.502

Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th

Cir. 1993), n.143

Farmington Dowel Products v. Forster Manufacturing Co., 421 F.2d 61 (1st

Cir. 1969), n.286
Table of Cases 151

Farrar v. Hobby, 506 U.S. 103 (1992), nn.22–23, 86, 189–90, 191–94, 205, 210

Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112 (2d Cir. 1978),

nn.339, 341

Feher v. Department of Labor & Industrial Relations, 561 F. Supp. 757 (D.

Haw. 1983), n.45

Feick v. Fleener, 653 F.2d 69 (2d Cir. 1981), n.324

Fidelity Bancorporation Securities Litigation, In re, 750 F. Supp. 160 (D.N.J.

1990), n.388

Figueroa–Torres v. Todelo-Davilla, 232 F.3d 270 (1st Cir. 2000), n.173

Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989), nn.39, 149

Fine Paper Antitrust Litigation, In re, 751 F.2d 562 (3d Cir. 1984), nn.266,

352, 372, 373, 379, 406, 411

Fleet v. United States Consumer Council, Inc., No. CIV.A.89-7527, 1990 WL

18926 (E.D. Pa. Feb. 23, 1990), n.504

Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991), nn.181, 258

Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990), n.238

Florida v. Dunne, 915 F.2d 542 (9th Cir. 1990), nn.368, 369, 391, 392

Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994), n.395

Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991), n.261

Fort v. Roadway Express, 746 F.2d 744 (11th Cir. 1984), n.291

Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir.

1989), nn.161, 258

Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 765 F.2d 1278 (5th Cir. 1985), n.25

Friend v. Kolodzieczak, 72 F.3d 1386 (9th Cir. 1995), n.238

Gagne v. Town of Enfield, 734 F.2d 902 (2d Cir. 1984), n.39

Gary Fairbanks, Inc., In re, 111 B.R. 809 (N.D. Iowa 1990), n.502

Gates v. Central Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 1986),

n.291

Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992), nn.117, 232, 265, 268

Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001),

n.209

Gekas v. Attorney Registration & Disciplinary Commission, 793 F.2d 846

(7th Cir. 1986), n.257

Gemstar-TV Guide International, Inc. Securities Litigation, In re, 209 F.R.D.

447 (C.D. Cal. 2002), n.496

General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, In re, 55 F.3d 768 (3d Cir. 1995), n.395

Gilbert v. Little Rock, Arkansas, 867 F.2d 1063 (8th Cir. 1989), n.181
152 Awarding Attorneys’ Fees and Managing Fee Litigation

Gillett Holdings, In re, 137 B.R. 462 (Bankr. D. Colo. 1992), n.502

Gisbrecht v. Barnhart, 535 U.S. 789 (2002), n.108

Glass v. HHS, 822 F.2d 19 (6th Cir. 1987), n.260

Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), nn.145, 164

Gold Seal Products, In re, 128 B.R. 822 (Bankr. N.D. Ala. 1991), n.502

Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), nn.366,

383

Goodwin v. Metts, 973 F.2d 378 (4th Cir. 1992), n.133

Goos v. National Ass’n of Realtors, 68 F.3d 1380 (D.C. Cir. 1995), n.180

Grace v. Burger, 763 F.2d 457 (D.C. Cir. 1985), nn.343, 449

Granada Investments v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992), n.399

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), n.26

Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992), nn.152, 180, 232

Great Sweats, Inc., In re, 113 B.R. 240 (Bankr. E.D. Va. 1990), n.502

Greater L.A. Council on Deafness v. Community Television of Southern

California, 813 F.2d 217 (9th Cir. 1987), n.136

Grendel’s Den v. Larkin, 749 F.2d 945 (1st Cir. 1984), nn.133, 159

Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001), n.33

Grove v. Mead School District, 753 F.2d 1528 (9th Cir. 1985), n.57

Guam Society of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir.

1996), n.230

Guidry v. International Union of Operating Engineers, 882 F.2d 929 (6th Cir.

1989), n.451

Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414

(3d Cir. 1993), n.151

Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000), nn.364, 412,

498

Gusman v. Unisys, 986 F.2d 1146 (7th Cir. 1993), n.118

Hall v. Cole, 412 U.S. 1 (1973), nn.423–25

Hamilton v. Daley, 777 F.2d 1207 (7th Cir. 1985), n.246

Hanrahan v. Hampton, 446 U.S. 754 (1980), n.20

Harman v. Lyphomed, 945 F.2d 969 (7th Cir. 1991), n.366

Haroco, Inc. v. American National Bank & Trust Co., 38 F.3d 1429 (7th Cir.

1994), n.106

Harper v. Better Business Service, 768 F. Supp. 817 (N.D. Ga. 1991), n.115

Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982), n.24

Hart v. Bourque, 798 F.2d 519 (1st Cir. 1986), n.136

Hatrock v. Jones & Co., 750 F.2d 767 (9th Cir. 1984), n.273

Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980), n.39
Table of Cases 153

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), n.221

Hensley v. Eckerhart, 461 U.S. 424 (1983), nn.9, 10, 12, 48, 84, 107, 108,

127–28, 154, 167–70, 178, 247, 295

Henson v. Columbus Bank & Trust Co., 651 F.2d 320 (5th Cir. 1981), n.254

Hepburn, In re, 84 B.R. 855 (S.D. Fla. 1988), n.44

Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981), n.250

Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989), n.180

Hewitt v. Helms, 482 U.S. 755 (1987), n.19

Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), n.40

Hill, In re, 775 F.2d 1037 (9th Cir. 1985), nn.343, 449

Holbrook v. Pitt, 748 F.2d 1168 (7th Cir. 1984), n.314

Hollowell v. Gravett, 723 F. Supp. 107 (E.D. Ark. 1989), n.227

Home Savings Bank v. Gillam, 952 F.2d 1152 (9th Cir. 1991), n.446

Homeward Bound, Inc. v. Hissom Memorial Hospital, 963 F.2d 1352 (10th

Cir. 1992), n.298

Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978), n.45

Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992), n.21

Hyman Construction Co. v. Brooks, 963 F.2d 1532 (D.C. Cir. 1992), n.176

Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989),

n.80

Independent School District v. Digre, 893 F.2d 987 (8th Cir. 1990), n.151

Inslaw, Inc., In re, 106 B.R. 331 (Bankr. D.D.C. 1989), n.502

International Nickel Co. v. Trammel Crow Distribution Corp., 803 F.2d 150

(5th Cir. 1986), n.214

Iqbal v. Golf Course Superintendents, 900 F.2d 227 (10th Cir. 1990), n.149

Islamic Center of Mississippi v. Starkville, Mississippi, 876 F.2d 465 (5th Cir.

1989), n.113

Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), n.180

Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), nn.180, 298

Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995), n.180

Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), n.161

Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992), n.82

Jenkins v. Missouri, 931 F.2d 1273 (8th Cir. 1991), n.238

Jensen’s Interiors, In re, 132 B.R. 105 (E.D. Pa. 1991), n.504

John v. Barron, 897 F.2d 1387 (7th Cir. 1990), n.292

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), nn.108,

187, 244

Johnson v. HUD, 939 F.2d 586 (8th Cir. 1991), n.446
154 Awarding Attorneys’ Fees and Managing Fee Litigation

Johnson v. Lafayette Fire Fighters Ass’n Local 471, 51 F.3d 726 (7th Cir.

1995), nn.16, 195

Johnson v. New York City Transit Authority, 823 F.2d 31 (2d Cir. 1987),

n.258

Johnson v. Orr, 739 F. Supp. 945 (D.N.J. 1988), n.115

Johnson v. Rodriguez, 260 F.3d 493 (5th Cir. 2001), n.33

Johnston v. Comerica Mortgage Co., 83 F.3d 241 (8th Cir. 1996), n.366

Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984), nn.343, 449

Junker v. Cory, 650 F.2d 1349 (5th Cir. 1981), nn.329–30

Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970), n.439

Kargman v. Sullivan, 589 F.2d 63 (1st Cir. 1978), n.307

Kay v. Ehrler, 499 U.S. 432 (1991), nn.62, 63

Kean v. Stone, 966 F.2d 119 (3d Cir. 1992), n.115

Keely v. City of Leesville, 897 F.2d 172 (5th Cir. 1990), n.39

Kelley v. Metropolitan County Board of Education, 773 F.2d 677 (6th Cir.

1985), nn.113, 284, 286

Kentucky v. Graham, 473 U.S. 159 (1985), n.79

Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975), n.108

King v. McCord, 621 F.2d 205 (5th Cir. 1980), n.255

Kinney v. International Brotherhood of Electrical Workers, 939 F.2d 690 (9th

Cir. 1991), nn.379, 380, 466, 468, 469

Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999), n.66

Kopet v. Esquire Realty, 523 F.2d 1005 (2d Cir. 1975), n.325

Koppel v. Wien, 743 F.2d 129 (2d Cir. 1984), n.326

Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541 (11th Cir. 1985),

nn.108, 244

Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985), n.24

Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir. 1957), n.323

Lattimore v. Oman Construction, 868 F.2d 437 (11th Cir. 1989), nn.234, 286

Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), n.88

Leffler v. Meer, 936 F.2d 981 (7th Cir. 1991), n.245

Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990), n.123

Lewis v. Anderson, 692 F.2d 1267 (9th Cir. 1982), nn.438–39

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n.142

Libby v. Illinois High School Ass’n, 921 F.2d 96 (7th Cir. 1990), n.27

Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987), n.159

Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp.,

540 F.2d 102 (3d Cir. 1976), nn.156, 307, 361, 397, 506
Table of Cases 155

Linquist v. Bowen, 839 F.2d 1321 (8th Cir. 1988), n.449

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992), nn.103, 138, 158, 171,

229–300

Loggerhead Turtle v. County Council, 307 F.3d 1318 (11th Cir. 2002), n.34

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir. 1995),

nn.238, 301

Louisville Black Police Officers Organization v. Louisville, 700 F.2d 268 (6th

Cir. 1983), n.132

Lowrance v. Hacker, 966 F.2d 1153 (7th Cir. 1992), n.77

Lucent Technologies, Inc., Securities Litigation, In re, 194 F.R.D. 137 (D.N.J.

2000), n.487

Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987), nn.163, 165

Macdissi v. Valmont Industries, 856 F.2d 1054 (8th Cir. 1988), n.162

Maher v. Gagne, 448 U.S. 122 (1980), n.28

Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir.

1966), n.335

Maine v. Thiboutot, 448 U.S. 1 (1980), n.36

Maldonado v. Lehman, 811 F.2d 1341 (9th Cir. 1987), n.118

Marek v. Chesny, 475 U.S. 717 (1986), nn.211, 286

Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986), n.262

Maristuen v. National States Insurance Co., 57 F.3d 673 (8th Cir. 1995),

n.289

Markham v. International Ass’n of Bridge, Structural & Ornamental Iron

Workers, 901 F.2d 1022 (11th Cir. 1990), nn.441–42

Marshall v. United Steelworkers, 666 F.2d 845 (3d Cir. 1981), nn.428, 458

Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1990), n.39

Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988), n.238

McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983), n.159

McDonald v. Doe, 748 F.2d 1055 (5th Cir. 1984), n.39

McDonald v. McCarthy, 966 F.2d 112 (3d Cir. 1992), nn.284, 286, 290

McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1976), n.455

McKenzie v. Kennickell, 669 F. Supp. 529 (D.D.C. 1987), n.43

McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980), n.149

McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), nn.332, 343

Meese, In re, 907 F.2d 1192 (D.C. Cir. 1990), n.124

Miami Optical Export, Inc., In re, 101 B.R. 383 (Bankr. S.D. Fla. 1989), n.502

MidAmerica Federal Savings & Loan v. Shearson/American, 962 F.2d 1470

(10th Cir. 1992), nn.238, 273
156 Awarding Attorneys’ Fees and Managing Fee Litigation

Miele v. New York State Teamsters Conference Pension & Retirement Fund,

831 F.2d 407 (2d Cir. 1987), n.165

Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), nn.186–88, 207

Miller v. Los Angeles, 827 F.2d 617 (9th Cir. 1987), n.244

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), n.57

Miller-Wohl Co. v. Commissioner of Labor & Industry, State of Montana,

694 F.2d 203 (9th Cir. 1982), n.70

Milton v. Des Moines, Iowa, 47 F.3d 944 (8th Cir. 1995), n.199

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), n.40

Missouri v. Jenkins, 491 U.S. 274 (1989), nn.102–03, 112, 232

Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986), n.44

Montgomery & Associates, Inc. v. Commodity Futures Trading Commission,

816 F.2d 783 (D.C. Cir. 1987), n.285

Moore v. Matthews, 682 F.2d 830 (9th Cir. 1982), n.119

Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996), nn.108, 110, 197

Morales v. Turman, 820 F.2d 728 (5th Cir. 1987), n.69

Morgan v. Union Metal, 757 F.2d 792 (6th Cir. 1985), n.291

Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695 (9th Cir.

1989), n.97

Munson v. Friske, 754 F.2d 683 (7th Cir. 1985), n.244

Murphy v. International Union of Operating Engineers, 774 F.2d 114 (6th

Cir. 1985), n.457

Murphy v. Reliance Standard Life Insurance Co., 247 F.3d 1313 (11th Cir.

2001), n.241

NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), n.165

National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319

(D.C. Cir. 1982), nn.248, 251

National Gypsum Co., In re, 123 F.3d 861 (5th Cir. 1997), n.501

National Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir. 1975),

n.315

Natural Resources Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973), n.5

Nensel v. Peoples Heritage Financial Group, Inc., 815 F. Supp. 26 (D. Me.

1993), n.395

New York Gaslight Club v. Carey, 447 U.S. 54 (1980), nn.37, 85

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), nn.84–85

Nicodemus v. Chrysler Corp., 445 F. Supp. 559 (N.D. Ohio 1977), n.45

Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, In re, 982 F.2d 603 (1st Cir. 1992), nn.395, 408, 413

Nisby v. Court of Jefferson County, 798 F.2d 134 (5th Cir. 1986), n.108
Table of Cases 157

Nolte v. Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931), n.322

Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir.

1988), nn.150, 155, 164–65, 171, 233, 248, 256, 258–59

North Carolina Department of Transportation v. Crest Street Community

Council, Inc., 479 U.S. 6 (1986), n.37

Northeast Women’s Center v. McMonagle, 889 F.2d 466 (3d Cir. 1989),

nn.39, 172, 204

Northern Plains Resource Council v. EPA, 670 F.2d 847 (9th Cir. 1982),

n.284

NRG Resources, Inc., In re, 64 B.R. 643 (W.D. La. 1986), n.503

Oberreich, In re, 109 B.R. 936 (Bankr. D. Wis. 1990), n.502

Ohio-Sealy Mattress, In re, 776 F.2d 646 (7th Cir. 1985), n.263

Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), n.444

Olson, In re, 884 F.2d 1415 (D.C. Cir. 1989), nn.134, 139, 159

Oracle Securities Litigation, In re, 131 F.R.D. 688 (N.D. Cal. 1990), nn.474,

524, 526

Oracle Securities Litigation, In re, 132 F.R.D. 538 (N.D. Cal. 1990), nn.474,

527

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d Cir. 1997), n.110

Oster v. Bowen, 682 F. Supp. 853 (E.D. Va. 1988), n.446

Overseas Development Disc Corp. v. Sangamo Construction Co., 840 F.2d

1319 (7th Cir. 1988), n.413

Pacific Enterprises Securities Litigation, In re, 47 F.3d 373 (9th Cir. 1995),

n.382

Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), n.25

Paris v. Metropolitan Life Insurance, 94 F. Supp. 792 (S.D.N.Y. 1947), n.327

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989), n.368

Pawlak v. Greenawalt, 713 F.2d 972 (3d Cir. 1983), nn.444, 458, 468–69

Pendleton, In re, No. CIV.A.90-1091, 1990 WL 29645 (E.D. Pa. Mar. 15,

1990), n.504

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711

(1987) (Delaware Valley II), n.242

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546

(1986) (Delaware Valley I), nn.220, 224–25

Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. 1993), n.291

People Who Care v. Rockford Board of Education, 921 F.2d 132 (7th Cir.

1991), nn.44, 294

Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991), n.144
158 Awarding Attorneys’ Fees and Managing Fee Litigation

Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), n.44

Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991), n.40

Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), nn.121–22, 184

Polk v. New York State Department of Correctional Services, 722 F.2d 23 (2d

Cir. 1983), n.117

Powell v. Pennsylvania Railroad, 267 F.2d 241 (3d Cir. 1959), n.323

Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000), nn.412, 500

Prandini v. National Tea, 557 F.2d 1015 (3d Cir. 1975), n.99

Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992), nn.166, 170, 179

Prudential Insurance Co. of America Sales Practices Litigation, In re, 148 F.3d

283 (3d Cir. 1998), nn.387, 395

Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984), n.343

Pulliam v. Allen, 466 U.S. 522 (1984), n.78

Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1998), n.110

Quave v. Progress Marine, 918 F.2d 33 (5th Cir. 1990), n.290

Quintus Securities Litigation, In re, 201 F.R.D. 475 (N.D. Cal. 2001), nn.489,

528

Ramey v. Cincinnati Enquirer, 508 F.2d 1188 (6th Cir. 1974), nn.436, 438

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), nn.119, 159

Ramsey v. Colonial Life Insurance Co. of America, 12 F.3d 472 (5th Cir.

1994), nn.280–81

Rawlings v. Prudential-Bach Properties, Inc., 9 F.3d 513 (6th Cir. 1993),

n.366

Ray v. U.S. Department of Justice, 87 F.3d 1250 (11th Cir. 1996), n.64

Razorfish Inc. Securities Litigation, In re, 143 F. Supp.2d 304 (S.D.N.Y.

2001), n.496

Reel v. Arkansas Department of Corrections, 672 F.2d 693 (8th Cir. 1982),

nn.39, 149

Reimers, In re, 972 F.2d 1127 (9th Cir. 1992), n.501

Reiser v. Del Monte Properties, 605 F.2d 1135 (9th Cir. 1979), nn.326, 445

Resolution Trust v. Marshall, 939 F.2d 274 (5th Cir. 1991), n.274

Rheam, In re, 137 B.R. 151 (Bankr. E.D. Pa. 1992), n.504

Rhodes v. Stewart, 488 U.S. 1 (1988), n.19

Richardson v. Penfold, 900 F.2d 116 (7th Cir. 1990), n.74

Riverside v. Rivera, 477 U.S. 561 (1986), nn.200–01, 209

Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998), nn.172, 248

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981), n.286

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990), nn.156–57, 175
Table of Cases 159

Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d

Cir. 1979), n.455

Rosenbaum v. MacAllister, 64 F.3d 1439 (10th Cir. 1995), n.465

Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988), n.294

Ross, In re, 135 B.R. 230 (E.D. Pa. 1991), n.504

Rude v. Buchhalter, 286 U.S. 451 (1932), n.328

Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994), nn.81,

117, 136, 302

Russell v. Board of Plumbing Examiners of the County of Westchester, 74 F.

Supp.2d 349 (S.D.N.Y. 1999), n.72

Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), n.77

Satoskar v. Indiana Real Estate Commission, 517 F.2d 696 (7th Cir. 1975),

n.343

Saunders, In re, 124 B.R. 234 (Bankr. W.D. Tex. 1991), n.502

Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988),

n.116

Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969),

n.336

Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir.

1999), n.65

Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (D.C. Cir. 1981), n.68

Schultz v. Hembree, 975 F.2d 572 (9th Cir. 1992), nn.177, 298

SEC v. Price Waterhouse, 41 F.3d 805 (2d Cir. 1994), n.64

Sederquist v. Court, 861 F.2d 554 (9th Cir. 1988), n.461

Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota,

771 F.2d 1153 (8th Cir. 1985), n.118

Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332 (4th Cir. 1996),

n.214

Shimman v. International Union of Operating Engineers, 744 F.2d 1226 (5th

Cir. 1984), nn.434, 452, 456–57

Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), nn.222, 226,

293–94

Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), nn.28, 34

Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.

1990), nn.369, 382, 416

Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988), nn.234, 306,

352, 373, 394

Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983), n.467

Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990), nn.132, 144, 237
160 Awarding Attorneys’ Fees and Managing Fee Litigation

Smith v. Great American Restaurants, 969 F.2d 430 (7th Cir. 1992), n.272

Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), n.25

Smithkline Beckman Securities Litigation, In re, 751 F. Supp. 525 (E.D. Pa.

1990), n.387

Sounds Distributing Corp., In re, 122 B.R. 952 (Bankr. W.D. Pa. 1991), n.502

Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981),

n.342

Southerland v. International Longshoremen’s Union, 845 F.2d 796 (9th Cir.

1987), nn.427, 430, 465

Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977), n.149

Spain v. Mountanos, 690 F.2d 742 (9th Cir. 1982), n.150

Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129 (7th

Cir. 1987), nn.181, 185

Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir. 1999), n.130

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), n.124

Spellan v. Board of Education, 59 F.3d 642 (7th Cir. 1995), n.179

Sprague v. Ticonic, 307 U.S. 161 (1939), nn.308–09, 324, 333–35

Standley v. Chilhowee R-IV School District, 5 F.3d 319 (8th Cir. 1993), n.106

Starks v. George Court Co., 937 F.2d 311 (7th Cir. 1991), n.90

Staten v. Housing Authority of Pittsburgh, 638 F.2d 599 (3d Cir. 1980), n.94

Stevens v. Municipal Court, 603 F.2d 111 (9th Cir. 1979), n.343

Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998),

n.370

Student Public Interest Research Group v. AT&T Bell Laboratories, 842 F.2d

1436 (3d Cir. 1988), n.258

Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990), nn.307,

351–52, 358, 377

Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), n.365

Synthroid Marketing Litigation, In re, 264 F.3d 712 (7th Cir. 2001), n.153

T & D Tool & Die, Inc., In re, 132 B.R. 525 (E.D. Pa. 1991), n.504

Taxman Clothing Co., In re, 134 B.R. 286 (N.D. Ill. 1991), n.503

Taylor v. Fort Lauderdale, 810 F.2d 1551 (11th Cir. 1987), n.26

Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), n.286

Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S.

782 (1989), nn.18, 42

Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, In re, 56 F.3d 295 (1st Cir. 1995), nn.366, 418

Thomas v. National Football League Players Ass’n, 273 F.3d 1124 (D.C. Cir.

2001), n.205
Table of Cases 161

Thomason v. Schweiker, 692 F.2d 333 (4th Cir. 1982), n.248

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923), n.4

Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), nn.244, 287

Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), nn.158, 263

Toth v. UAW, 743 F.2d 398 (6th Cir. 1984), n.460

Trujillo v. Heckler, 587 F. Supp. 928 (D. Colo. 1984), n.343

Trustees v. Greenough, 105 U.S. 527 (1881), nn.2, 303, 345, 398, 413

Tyler v. Corner Construction Corp., 167 F.3d 1202 (8th Cir. 1999), n.96

United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian

Construction Corp., 95 F.3d 153 (2d Cir. 1996), n.106

United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equipment, Inc.,

89 F.3d 574 (9th Cir. 1996), n.73

United States v. ASCAP, 466 F.2d 917 (2d Cir. 1972), n.322

United States v. Board of Education of Waterbury, 605 F.2d 573 (2d Cir.

1979), n.58

United States v. Imperial Irrigation District, 595 F.2d 525 (9th Cir. 1979),

n.447

United States v. Tobias, 935 F.2d 666 (4th Cir. 1991), nn.356–57

United Steelworkers v. Phelps Dodge, 896 F.2d 403 (9th Cir. 1990), n.257

Usery v. Local Union No. 639, International Brotherhood of Teamsters, 543

F.2d 369 (D.C. Cir. 1976), nn.427–28, 464

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), nn.132, 149, 177, 299

Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995), nn.282–83

Valley Disposal, Inc. v. Central Vermont Solid Waste Management District,

71 F.3d 1053 (2d Cir. 1995), n.97

Vaughan v. Atkinson, 369 U.S. 527 (1962), n.4

Venegas v. Mitchell, 495 U.S. 82 (1990), n.109

Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), n.178

Vincent v. Hughes Air West, 557 F.2d 759 (9th Cir. 1977), nn.304, 359–60

Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990), nn.171, 207

Walker v. HUD, 99 F.3d 761 (5th Cir. 1996), nn.160, 235

Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), n.25

Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031

(3d Cir. 1996), nn.125, 204

Washington v. Seattle School District, 458 U.S. 457 (1982), n.85

Washington Public Power Supply System Securities Litigation, In re, 19 F.3d

1291 (9th Cir. 1994), nn.236, 366, 369, 395
162 Awarding Attorneys’ Fees and Managing Fee Litigation

Waters v. International Precious Metals Co., 190 F.3d 1291 (11th Cir. 1999),

n.311

Webb v. Board of Education, 471 U.S. 234 (1985), n.37

Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988), nn.26, 294

Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991),

nn.373, 395

Wells Fargo Securities Litigation, In re, 156 F.R.D. 223 (N.D. Cal. 1994),

nn.528, 536

Wenderhold v. Cylink Corp., 188 F.R.D. 570 (N.D. Cal. 1999), nn.528, 537

West Side Women’s Service v. Cleveland, 594 F. Supp. 299 (N.D. Ohio 1984),

n.43

West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991),

nn.104–05

Weyant v. Okst, 198 F.3d 311 (2d Cir. 1999), n.17

Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982), n.88

White v. New Hampshire, 455 U.S. 445 (1982), nn.13, 276–77

Whittier v. Emmett, 281 F.2d 24 (D.C. Cir. 1960), n.327

Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992), nn.57, 60–61, 71

Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985), n.124

Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), n.26

Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir.

1997), n.311

Williams v. Roberts, 904 F.2d 634 (11th Cir. 1990), n.172

Wing v. Asarco Inc., 114 F.3d 986 (9th Cir. 1997), n.231

Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069 (8th Cir.

1991), n.174

Winton v. Amos, 255 U.S. 373 (1921), n.327

Woodside v. School District of Philadelphia Board of Education, 248 F.3d

129 (3d Cir. 2001), n.64

Woolridge v. Marlene Industries Corp., 898 F.2d 1169 (6th Cir. 1990), n.153

Wray v. Clarke, 151 F.3d 807 (8th Cir. 1998), n.97

Yaron v. Northampton, 963 F.2d 33 (3d Cir. 1992), n.149

Zamora v. Local 11, 817 F.2d 566 (9th Cir. 1987), n.431
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of

Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North

Dakota

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of

Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S.

Courts

Director

Judge Barbara J. Rothstein

Deputy Director

Russell R. Wheeler

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal

judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629),

on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board,

which also includes the director of the Administrative Office of the U.S. Courts

and seven judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The

Education Division plans and produces education and training programs for

judges and court staff, including satellite broadcasts, video programs, publications, curriculum packages for in-court training, and Web-based programs and

resources. The Research Division examines and evaluates current and alternative

federal court practices and policies. This research assists Judicial Conference

committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational

programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications

Policy & Design Office—in using print, broadcast, and on-line media to deliver

education and training and to disseminate the results of Center research. The

Federal Judicial History Office helps courts and others study and preserve federal

judicial history. The International Judicial Relations Office provides information

to judicial and legal officials from foreign countries and assesses how to inform

federal judicial personnel of developments in international law and other court

systems that may affect their work.