Awarding Attorneys’ Fees and

Managing Fee Litigation

Third Edition

Federal Judicial Center

2015

Awarding Attorneys’ Fees and

Managing Fee Litigation

Third Edition

Alan Hirsch, Diane Sheehey & Tom Willging

Legal Editor

Kris Markarian

Federal Judicial Center

2015

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop educational materials for the judicial 

branch. While the Center regards the content as responsible and valuable, this 

publication does not reflect policy or recommendations of the Board of the Federal Judicial Center.
first printing
v

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?, 5

2. Is there a prevailing party or statutory discretion to award fees to a 

party that achieves some success?, 6

3. Is there standing to bring a claim for fees?, 17

4. Is there a liable party?, 18

5. Are there special circumstances militating against an award?, 19

6. Is there a fee waiver?, 21

B. Calculating the Amount of the Award, 23

1. What constitute fees?, 23

2. What is the method of calculating the amount of fees?, 25

3. What documentation is required?, 35

4. Should the lodestar be adjusted?, 37

5. Are there special considerations for awards to defendants?, 54

6. What are the procedural aspects of fee disputes?, 55

C. Issues on Appeal, 61

1. Timing of the appeal, 61

2. Scope of review, 64

3. May the court of appeals calculate the award?, 65

II. Common Fund and Substantial Benefit, 67

A. Common Fund, 67

B. Class Actions, 69

1. Determining whether an award is in order, 69

2. Calculating the amount of an award, 80

3. Issues on appeal, 98

C. Substantial Benefit, 98

1. Determining whether an award is in order, 101

2. Method for determining amount of award, 109

3. Issues on appeal, 109
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D. Private Securities Litigation Reform Act of 1995, 110

1. Selecting class counsel, 110

2. Determining a reasonable percentage of amounts actually paid to 

the class, 115

III. Techniques for Managing Attorneys’ Fees, 117

A. Facilitating Review of Fee Applications, 117

1. Establishing presumptively reasonable hourly rates and “no-look” 

fees, 118

2. Determining the appropriate percentage of a fund to award, 120

3. Sampling, 122

4. Selecting lead counsel by competitive bidding, 123

5. Requiring a pretrial estimate of fees, 125

6. Using computerized billing programs, 126

7. Requiring attorneys to categorize records and avoid inappropriate 

“block billing,” 126

8. Requiring defendants to submit records, 128

B. Eliminating or Streamlining Fee Hearings, 129

1. Tentative ruling, 129

2. Written declaration in lieu of testimony, 130

3. Informal conference, 131

C. General Techniques, 131

1. Setting a framework early in the case, 132

2. Local rules, guidelines, and written opinions, 132

3. Delegation, 133

For Further Reference, 137

Table of Cases (Alphabetical), 139

Table of Cases (by Court), 161
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Foreword

Alan Hirsch and Diane Sheehey prepared the first edition of this monograph. Diane Sheehey prepared the second edition with assistance from 

Kris Markarian and Laural Hooper of the Federal Judicial Center. Tom 

Willging updated this third edition with assistance from Ezra Gale (University of California Hastings College of the Law, class of 2012) and Kris 

Markarian.

The Center would like to thank Judge James L. Robart of the Western 

District of Washington for reviewing this monograph.

Case law is covered through October 2014. All cites to the U.S. Code 

are to the 2012 edition unless otherwise specified.

1

Introduction

In the federal courts, attorney fee litigation arises in several contexts. 

Hundreds of federal civil statutes authorize fee awards to prevailing 

plaintiffs and, sometimes, to 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 as a sanction against parties or attorneys for 

misconduct, under the court’s inherent authority, or pursuant to several 

provisions in the Federal Rules of Civil Procedure. Finally, the Criminal 

Justice Act1 authorizes compensation to court-appointed attorneys in 

criminal cases. Attorney fee matters constitute an important 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.2 In the 

nineteenth century, the Supreme Court carved out the common fund exception.3 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.4 Invoking its inherent equity power, the Supreme Court 

held that attorneys’ fees may be assessed against parties who act in bad faith

or disobey a court order.

5 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 

1. 18 U.S.C. § 3006A(d).

2. For the history of this rule, and occasional minor departures from it, see Alyeska 

Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247–57 (1975).

3. See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885); Trustees v. Greenough, 105 U.S. 527 (1881).

4. See, e.g., Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; Truth in Lending Act, 82 

Stat. 157, 15 U.S.C. § 1640(a); Fair Labor Standards Act, § 16(b), 52 Stat. 1069, as 

amended, 29 U.S.C. § 216(b); Civil Rights Attorney Fee Awards Act of 1976, § 2(b), 90 

Stat. 2641, 42 U.S.C. § 1988(b).

5. See Vaughan v. Atkinson, 369 U.S. 527, 530–31 (1962) (bad faith); Toledo Scale 

Co. v. Computing Scale Co., 261 U.S. 399, 426–28 (1923) (order disobeyed).
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protection.6 But in the 1975 case of Alyeska Pipeline Service Co. v. Wilderness Society,

7 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. (In dicta, the Court 

approved continued use of fee awards in common fund and substantial 

benefit cases and as a sanction for misconduct.8)

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 19769 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. Even when an award is clearly in 

order, calculating the amount of the award can be complex and timeconsuming. By 1983, disputes over attorneys’ fees were consuming substantial judicial resources. In the seminal case, Hensley v. Eckerhart,

10 the 

Supreme Court warned lower courts not to let fee requests spawn “a second major litigation.”11 However, neither the Court’s warning nor its attempted clarification of the law in Hensley and subsequent decisions has 

noticeably reduced the burden or complexity of fee awards.

This monograph addresses both statutory fee-shifting awards and 

common-fund/substantial-benefit awards. These awards call for distinct 

modes of analysis. Part I analyzes attorney fee awards under fee-shifting 

statutes and addresses the selection of class counsel under the Private Securities Litigation Reform Act. This part examines the procedures for requesting statutory fees; the core quest for statutory authority to make an 

award to a prevailing party or for a statutory grant of discretion to award 

fees; the type of fees or costs allowed under typical fee-shifting statutes; and 

the mode of calculating statutory fees, generally using a lodestar analysis 

and making adjustments as permitted by Supreme Court precedent.

6. 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); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972).

7. 421 U.S. 240 (1975).

8. Id. at 259.

9. 42 U.S.C. § 1988.

10. 461 U.S. 424 (1983).

11. Id. at 437.
Introduction

3

Part II discusses fee awards based on the common fund doctrine and 

its offspring, the substantial benefit doctrine. This part explores the essential ingredients of the common fund and substantial benefit doctrines: 

the actions of the parties to create a fund or benefit that is valuable to a 

group or class. This part concerns calculating an award by identifying the 

benefits conferred by the litigation and, most often, choosing a percentage of the benefit to award to parties who generated that benefit.

Both Parts I and II include sections that examine procedural issues, 

including issues on appeal and the scope of appellate review.

Part III presents techniques for managing attorneys’ fees.12 It discusses innovative approaches judges use to facilitate review of fee applications and eliminate or streamline hearings. Broad techniques, such as 

the use of local rules to facilitate fact-finding and the delegation of duties 

to clerks and magistrate judges, are treated in this final part.

The monograph does not address 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. Nevertheless, parts of the analysis concerning the 

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

awarded under the Criminal Justice Act.

12. The second edition of this monograph contained the section “The Obligation of 

Bankruptcy Courts to Examine Fee Petitions,” which is not included in this edition. Review of bankruptcy fee petitions is more thoroughly covered, within a more complete 

discussion of bankruptcy rules and procedures, in Laura B. Bartell, A Guide to the Judicial 

Management of Bankruptcy Mega-Cases (Federal Judicial Center, 2d ed. 2009).

5

I. Fee-Shifting Statutes

Attorney fee disputes under fee-shifting statutes occur in numerous circumstances and raise many questions. Supreme Court and 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.13 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 attorney fee case is whether any award is in 

order. The determination entails several discrete inquiries:

• Was a timely fee request made?

• Is there a prevailing party or statutory discretion to award fees to 

a party that achieves some success?

• 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?

1. Was a timely fee request made?

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

causes unfair surprise or prejudice, or violates a local rule.14 A postjudgment motion for fees is not a motion to amend or alter a judgment,

and is thus not subject to the ten-day requirement of Federal Rule of 

Civil Procedure 59(e).15

13. 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.

14. White v. New Hampshire Dep’t of Emp’t Sec., 455 U.S. 445, 454 (1982).

15. Id. at 451–52.
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Rule 54(d)(2)(B) requires motions for attorneys’ fees to be filed no 

later than fourteen days after entry of judgment, absent a “statute or a 

court order.”16 Five courts of appeals have held that local rules prescribing time periods for filing fee motions are court orders that preempt Rule 

54’s fourteen-day period.17 Another appellate court has held that Rule 

54(d)(2)(B) motions are timely if filed no later than fourteen days after 

resolution of motions under Rules 50(b), 52(b), or 59.

18

2. Is there a prevailing party or statutory discretion to award fees to 

a party that achieves some success?

The Supreme Court has articulated two approaches to interpreting statutes that allow awards of attorneys’ fees. The first approach relates to 

statutes that expressly restrict awards to prevailing parties. The second 

approach relates to statutes that give courts discretion to award fees to 

parties who achieved “‘some degree of success on the merits’”19 without 

necessarily meeting the standards posited for prevailing parties.

a. Prevailing plaintiffs

Interpreting a “prevailing party” statute, the Supreme Court has said that 

to be eligible for a fee award, a plaintiff must prevail on “any significant 

claim affording it some of the relief sought.”20 The relief cannot be merely 

procedural; it must reach the underlying merits of the claim and “affect[ ]

16. Rule 54(d)(2)(B) does not apply, however, when “the substantive law requires 

those fees to be proved at trial as an element of damages.” Fed. R. Civ. P. 54(d)(2)(A).

17. See Planned Parenthood of Cent. N.J. v. Attorney Gen. of State of N.J., 297 F.3d 

253, 259 (3d Cir. 2002) (“Every Court of Appeals to have addressed the issue has decided 

that a local rule extending the time to file a motion for fees is a ‘standing order, ’ and, 

therefore, not inconsistent with the federal rules.”). See also Tire Kingdom, Inc. v. Morgan 

Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir. 2001); Jones v. Cent. Bank, 161 F.3d 

311, 312–13 (5th Cir. 1998); Eastwood v. Nat’l Enquirer, 123 F.3d 1249, 1257 (9th Cir. 

1997); Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 729 (7th Cir. 1995).

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

19. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 254 (2010) (quoting 

Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983)).

20. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) 

(rejecting law in some circuits that plaintiff must prevail on “central issue” and achieve 

“primary relief sought”).
I. Fee-Shifting Statutes

7

the behavior of the defendant towards the plaintiff.”21 Thus, for example, 

the Court found that when the plaintiff’s 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 plaintiff was not a prevailing party.

22 In another 

illustrative case, the Eighth Circuit rejected a fee request when the plaintiff’s victory consisted solely of the district court’s finding that it had jurisdiction to hear the case.23

The Supreme Court has “repeatedly held that an injunction or declaratory judgment, like a damages award, will usually” materially alter 

the legal relationship between the parties.24 However, in Sole v. Wyner,

25 a 

unanimous Supreme Court held that “[p]revailing party status . . . does 

not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.”26 Despite the temporary change, in the end there was no material change in 

the legal relationship of the parties.27

Under the civil rights fee-shifting statute,28 a plaintiff who prevails on 

a non-constitutional statutory claim brought pursuant to § 1983 is eligible for attorneys’ fees.29

The Supreme Court has also held that an award of nominal damages 

confers prevailing party status on the plaintiff.30 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 

21. Hewitt v. Helms, 482 U.S. 755, 761 (1987) (holding inmate who was improperly 

sentenced to disciplinary confinement by prison committee but later released on parole 

was not entitled to declaratory relief, and thus not a prevailing party). See also Rhodes v. 

Stewart, 488 U.S. 1, 4 (1988) (relying on Hewitt, holding there was no prevailing plaintiff 

where, by the time lower court granted formal declaratory relief, one plaintiff had died 

and the other was no longer in custody).

22. Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (stating “[t]he respondents 

have of course not prevailed on the merits of any of their [underlying] claims”).

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

24. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012).

25. 551 U.S. 74 (2007).

26. Id. at 83.

27. Id. at 82.

28. 42 U.S.C. § 1988.

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

30. Farrar v. Hobby, 506 U.S. 103 (1992).
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not pay.”31 But a ruling that the plaintiff is not entitled to even nominal 

damages does not alter a plaintiff’s claim for fees based on obtaining an 

injunction.32

In the lower courts, consensus 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 must fall.33

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.34

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.35 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.36 In Wyner, the Court expressed no view on “whether, in the absence of a final decision on the 

merits of a claim for permanent injunctive relief, success in gaining a 

preliminary injunction may sometimes warrant an award of counsel 

fees.”37

31. Id. at 113.

32. Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012).

33. 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).

34. Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986); Ward v. Cnty. of San Diego, 

791 F.2d 1329 (9th Cir. 1986); Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982); Smith v. 

Univ. of N.C., 632 F.2d 316 (4th Cir. 1980). 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 law after initial injunction was granted, plaintiff is entitled to fees).

35. 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); Doe v. Marshall, 622 F.2d 118, 119–20 (5th Cir. 1980).

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

37. Sole v. Wyner, 551 U.S. 74, 86 (2007).
I. Fee-Shifting Statutes

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The Supreme Court has held that favorable settlements enforced 

through court-ordered consent decrees qualify plaintiffs for fee awards.38

The key factor in the above-cited cases is that the court ordered the settlement in the form of a consent decree. In the absence of a consent decree, parties have sought fees by invoking a theory that the litigation 

served as a catalyst for the settlement. But the Supreme Court 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 Department of Health and Human Resources.

39 The Court said that the term “prevailing party” is a legal term of 

art40 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 . . . .”41 Furthermore, the Court stated that “[a] defendant’s voluntary change in 

conduct . . . lacks the necessary judicial imprimatur on the change.”42

Courts of appeals have extended rejection of the catalyst theory to other 

fee-shifting statutes that award fees to the prevailing party.43

A corollary to the principle underlying Buckhannon is that once a 

consent judgment has been entered, thereby changing the legal relationship of the parties, fees incurred in enforcing a consent judgment are 

compensable.44 In Pennsylvania v. Delaware Valley Citizens’ Council for 

Clean Air,

45 the Supreme Court affirmed an award of fees for postconsent 

decree activity necessary to implement the decree. The court said that

38. Maher v. Gagne, 448 U.S. 122 (1980). See also Pennsylvania v. Delaware Valley 

Citizens’ Council for Clean Air, 478 U.S. 546 (1986).

39. 532 U.S. 598 (2001) (holding catalyst theory not a permissible basis for attorney 

fee awards under Americans with Disabilities Act and Fair Housing Amendments Act).

40. Id. at 603.

41. Id. at 600.

42. Id. at 605.

43. 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).

44. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546 (1986). 

Buckhannon, of course, doesn’t apply to common fund cases in general and class actions 

in particular. Rule 23(e)’s procedure demands that a court review any class settlement, 

and court approval provides the judicial imprimatur demanded in Buckhannon.

45. 478 U.S. 546 (1986).
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enforcement of the decree, whether in the courtroom before a judge or 

in front of a regulatory agency with power to modify the substance of 

the program ordered by the court, involved the type of work which is 

properly compensable as a cost of litigation under § 304 [of the Clean 

Air Act].46

The Ninth Circuit held that attorney activity in pursuing a contempt 

motion was compensable in a context in which the motion, though arguably unsuccessful because it was mooted, appeared to serve as a catalyst 

for compliance with the original judgment.47

With regard to Freedom of Information Act cases, Congress expressed its disapproval of the effect the Buckhannon case had on some 

administrative agencies’ disclosure practices. In 2007, Congress enacted

the OPEN Government Act and established in section 4 that the catalyst 

theory applies to Freedom of Information Act cases.48

Plaintiffs who are 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.49 Seven courts of appeals have held that 

because the Employee Retirement Income Security Act (ERISA)’s feeshifting provision refers only to an “action”—and omits “proceeding”—

fee awards for success at the administrative phase are not allowed.50

46. Id. at 558.

47. Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012) (applying Prison Litigation Reform 

Act restriction on fee awards).

48. 5 U.S.C. § 552(a)(4)(E), discussed in Davis v. Dep’t of Justice, 610 F.3d 750, 752 

(D.C. Cir. 2010).

49. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980) (interpreting terms “any 

action or proceeding” as used in § 706(k) of Title VII of the Civil Rights Act of 1964). Cf.

Webb v. Bd. of Educ., 471 U.S. 234 (1985) (holding award inappropriate because administrative proceeding 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).

50. Kahane v. UNUM Life Ins. Co. of Am., 563 F.3d 1210, 1215 (11th Cir. 2009); 

Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 313 (3d Cir. 2008); Parke v. 

First Reliance Standard Life Ins. Co., 368 F.3d 999, 1011 (8th Cir. 2004); Rego v. Westvaco, 319 F.3d 140, 150 (4th Cir. 2003); Peterson v. Cont’l Cas. Co., 282 F.3d 112, 121 (2d 

Cir. 2002); Anderson v. Procter & Gamble, 220 F.3d 449, 455 (6th Cir. 2000); Cann v. 
I. Fee-Shifting Statutes

11

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.51 However, these plaintiffs 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).52

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 is established but no remedial 

order has been entered.53 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 litigation54—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 generally should be 

granted only if they are necessary for the plaintiff to continue pursuing 

the lawsuit, or if the case has been unusually protracted.55

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.56 Several trial courts have conditioned interim fees on the posting 

of a security.57

Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 316–17 (9th Cir. 1993) 

(ERISA). 

51. Skokos, 440 F.3d at 962–63; Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990); 

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); 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).

52. Skokos, 440 F.3d at 962–63. See also Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 

1991); Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991); Milwe v. Cavuoto, 653 F.2d 80 (2d 

Cir. 1981).

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

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

(1989).

55. 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).

56. 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); 
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b. Discretionary fee-shifting under the Patent Act and other statutes

Some federal statutes explicitly grant the district court discretion to 

award fees to a prevailing party. For example, the Patent Act provides 

that “[t]he court in exceptional cases may award reasonable attorney fees 

to the prevailing party.”58 In Octane Fitness, LLC v. Icon Health & Fitness, 

Inc.,

59 the Supreme Court reversed a Federal Circuit interpretation that 

restricted the term “exceptional cases” to those that either were litigated 

in a manner that would independently justify litigation sanctions or were 

totally baseless and litigated in subjective bad faith. The Court found the 

court of appeals’ approach to be “overly rigid” and unanimously held 

that “an ‘exceptional’ case is simply one that stands out from others with 

respect to the substantive strength of a party’s litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”60 The Patent Act gives discretion to the district court to award fees to prevailing parties in exceptional 

cases, and that grant of authority should not be rendered “largely superfluous” as the court of appeals’ approach would have done.61

Along similar lines, the Supreme Court interpreted a statute granting 

district courts discretion to award fees without mentioning the term 

“prevailing party” as granting the discretion to award fees to a plaintiff 

who achieved partial success in the litigation. In Hardt v. Reliance Standard Life Insurance Co.,

62 the Court interpreted a provision in ERISA that 

Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985); In re Hepburn, 84 B.R. 855 (Bankr. 

S.D. Fla. 1988); In re Chin, 31 B.R. 314 (Bankr. S.D.N.Y. 1984). Although the authors of 

this monograph found no reported cases in which parties were 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”).

57. 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).

58. 35 U.S.C. § 285.

59. 134 S. Ct. 1749 (2014).

60. Id. at 1756.

61. Id. at 1758.

62. 560 U.S. 242 (2010).
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provided that “the court in its discretion may allow a reasonable attorney’s fee and costs . . . to either party.”63 The plaintiff moved for a fee 

award based on her partial success in having her ERISA claim for disability benefits remanded to her employer’s disability insurance carrier for 

reconsideration. The district court awarded fees, but the court of appeals 

applied the “prevailing party” standard and reversed the fee award. In a 

unanimous opinion, the Supreme Court reversed, holding that a fee 

claimant need not be a prevailing party to be eligible for attorneys’ fees 

under ERISA. The only condition for awarding fees under the broad language of the statute is that a claimant achieve “‘some degree of success.’”64 In addition, the Court found that the plaintiff’s securing an order 

of remand of her claim to her employer’s disability insurance claims administrator after persuading the district court that there was compelling 

evidence of disability sufficed to meet the partial success standard.

In accord with but prior to Hardt, the Tenth, Eleventh, and D.C. Circuits declined to apply the Buckhannon rationale and applied the catalyst 

theory in interpreting fee-shifting statutes that award fees “whenever . . . 

appropriate.”65

c. Prevailing defendants

In Christiansburg Garment v. EEOC,

66 the Supreme Court held that the 

Title VII fee-shifting statute67 authorizes an award to prevailing defendants as well as to prevailing plaintiffs. The holding appears to apply to 

all fee-shifting statutes that refer to a prevailing party without specification.68 However, the Court held that an award for the Title VII defendant 

63. 29 U.S.C. § 1132(g)(1).

64. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 254 (2010) (quoting 

Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983) (interpreting § 307(f) of the Clean 

Air Act, which authorizes a court to award fees “whenever it determines that such an 

award is appropriate.” 42 U.S.C. § 7607(f))).

65. Sierra Club v. EPA, 322 F.3d 718, 721–26 (D.C. Cir. 2003) (Clean Air Act); Loggerhead Turtle v. Cnty. 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).

66. 434 U.S. 412 (1978).

67. 42 U.S.C. § 2000e-5(k).

68. See Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (generalizing Christiansburg’s holding).
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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.”69 It need not find subjective bad faith 

on the plaintiff’s part.70

In Fox v. Vice,

71 the Supreme Court held that when a plaintiff’s suit 

involves both frivolous and non-frivolous claims, a court may grant reasonable fees to the defendant, but only for costs that the defendant would 

not have incurred but for the frivolous claims. The Court pointed to the 

district court’s observations that the defendant’s attorneys “would have 

done much the same work even if [the plaintiff] had not brought his frivolous claims,” that the frivolous and non-frivolous claims “‘arose out of 

the same transaction,’” and that they were “‘inter-related.’”72 Consequently, the district court’s decision to award full fees to the defendant 

was erroneous.73

In Fogerty v. Fantasy, Inc.,

74 the Supreme Court rejected a requirement that a prevailing defendant under the Copyright Act of 197675 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.76 The Court held that under the Copyright Act, “prevailing plaintiffs and prevailing defendants are to be treated alike . . . .”77

After the decision in Fogerty, the Fourth Circuit held that the more 

stringent Christiansburg standard applies to prevailing defendants under 

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

70. Id.

71. 131 S. Ct. 2205, 2213–17 (2011) (applying Christiansburg to defendant’s claim 

for fees under 42 U.S.C. § 1988).

72. Id. at 2217.

73. Id. (vacating and remanding).

74. 510 U.S. 517 (1994).

75. 17 U.S.C. § 505.

76. 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.

77. Id. at 534.
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the Fair Housing Act,78 and thus, in deciding whether to award attorneys’ 

fees, a court may treat a prevailing defendant differently from a prevailing 

plaintiff.79

d. Prevailing intervenors

Courts of appeals have held that fees may be awarded in favor of an intervenor.80 The intervenor must “contribute[ ] importantly”81 or play a 

“significant role”82 in producing the favorable outcome. The Second Circuit rejected the contention that intervenors can recover fees only when 

they assert a violation of their own rights.83 The fee award should reflect 

the intervenor’s contribution; efforts that duplicate work of the original 

plaintiffs should not be compensated.84

e. 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.85 The Court ruled that the word “attorney” in 

the Civil Rights Attorney’s Fees Awards Act assumes an agency relationship.86 Lower courts have since extended the prohibition to other feeshifting statutes.87 The First Circuit allowed an award of fees to a pro se 

78. 42 U.S.C. § 3613(c)(2).

79. Bryant Woods Inn, Inc. v. Howard Cnty., 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”).

80. Wilder v. Bernstein, 965 F.2d 1196, 1202–04 (2d Cir.) (en banc); Grove v. Mead 

Sch. Dist., 753 F.2d 1528, 1535 (9th Cir. 1985); Miller v. Staats, 706 F.2d 336, 340–42 

(D.C. Cir. 1983).

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

82. Donnell v. United States, 682 F.2d 240, 246 (D.C. Cir. 1982).

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

84. Id. at 1204–05.

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

86. Id. at 435–36. 

87. See, e.g., Ford v. Long Beach Unified Sch. Dist., 461 F.3d 1087, 1090–91 (9th 

Cir. 2006) (attorney–parent representing own child under Individuals with Disabilities 

Education Act); Woodside v. Sch. Dist. of Philadelphia Bd. of Ed., 248 F.3d 129, 131 (3d 

Cir. 2001) (same); Doe v. Bd. of Educ. of Baltimore Cnty., 165 F.3d 260, 263 (4th Cir. 

1998) (same); Burka v. HHS, 142 F.3d 1286, 1290 (D.C. Cir. 1998) (pro se attorney litigant under Freedom of Information Act); Ray v. U.S. Dep’t of Justice, 87 F.3d 1250, 1252 
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attorney litigant who also represented a co-plaintiff in a civil rights action,

88 and the Ninth Circuit held that fees may be awarded to a successful plaintiff who was represented by her spouse in a civil rights action.89

Awarding attorneys’ fees to pro se litigants who sought advice from outside counsel may be appropriate,90 but a pro se attorney litigant is not 

entitled to fees for his colleagues’ work.91

f. Amici curiae

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

D.C. Circuit 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.’”92 The Fifth Circuit held that there was no common law or 

statutory basis for an award of attorneys’ fees to amici curiae who voluntarily participated in a lawsuit.93 The Ninth Circuit likewise held that 

amici curiae are not entitled to fees.94 The Second Circuit has indicated in 

dicta that fee awards to amici curiae are not appropriate.95 But at least 

(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 (EAJA)).

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

1999).

89. Rickley v. Cnty. of Los Angeles, 654 F.3d 950 (9th Cir. 2011).

90. 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–

25 (D.C. Cir. 1999).

91. Burka, 142 F.3d at 1291 (no attorney–client relationship). 

92. Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 854 (D.C. Cir. 1981) (quoting 4 Am. Jur. 2d Amicus Curiae § 7 (1969)).

93. Morales v. Turman, 820 F.2d 728, 731–33 (5th Cir. 1987) (noting that amici 

curiae never represented the class, never asked to intervene, and, in fact, would not have 

had standing to intervene).

94. 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).

95. 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
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one district court awarded fees to amici curiae who “contributed to the 

[p]laintiffs’ victory” and, “[h]ad th[e] case proceeded to trial, . . . could 

have chosen to seek leave to intervene.”96

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

The Supreme Court has held that when a statute specifies that a fee award 

goes “to a prevailing party,” the award belongs to the party, not to counsel.97 In most circumstances, who receives the award 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. “[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.”98

The matter is less straightforward if the court finds the attorney lacks 

standing to request fees. In one case, the counsel was discharged (because 

of the client’s displeasure with his services) before the case was settled. 

The Second Circuit said: “Were we to entertain [the attorney’s] claim, 

clients’ control over their litigation would be subject to a veto by former 

attorneys no longer under an obligation of loyalty . . . .”99 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 asked that 

curiae, good samaritans, or even litigious meddlers so that they may ‘team up’ and overburden the nonprevailing party with excessive attorneys’ fees”).

96. Russell v. Bd. of Plumbing Exam’rs, 74 F. Supp. 2d 349, 351 (S.D.N.Y. 1999). 

Awarding fees here “will not open the flood-gates to litigious meddlers”; requiring the 

amicus trade association “to move to intervene nunc pro tunc so as to get paid would be 

exalting form over substance.” Id. at 351 n.2.

97. Astrue v. Ratliff, 130 S. Ct. 2521, 2524 (2010) (interpreting § 204(d) of EAJA, 28 

U.S.C. § 2412(d), and holding “a § 2412(d) fees award is payable to the litigant and is 

therefore subject to a Government offset to satisfy a pre-existing debt that the litigant 

owes the United States”). See also Evans v. Jeff D., 475 U.S. 717 (1986), discussed infra

text accompanying notes 129–34. Although the award of fees is to the party, the party 

does not have a right to keep the fees. See United States ex rel. Virani v. Jerry M. Lewis 

Truck Parts & Equip., 89 F.3d 574, 577–79 (9th Cir. 1996).

98. Lowrance v. Hacker, 966 F.2d 1153, 1156 (7th Cir. 1992) (quoting Ceglia v. 

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

99. Brown v. GM, 722 F.2d 1009, 1011 (2d Cir. 1983).
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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 it was not 

made for their benefit.”100

The Seventh Circuit, although it agreed with those two decisions, 

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 end of the litigation. There was no question 

that the attorney had acted with his client’s approval during the appeal,

and there was no ground for believing that his client objected to the fee 

petition.101

4. Is there a liable party?

Any losing defendant, including the government or government officials, 

can be liable for fees.102 However, plaintiffs who prevail only against government employees in their personal capacities may not recover fees from 

the government.103

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

against an intervenor, but only on a showing of bad faith.104 Three courts 

of appeals have considered whether fees may be awarded against a defendant to compensate the plaintiff for successful work in opposing an 

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

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

state lien statute, not fee-shifting statute). See also Samuels v. Am. Motor Sales Corp., 969 

F.2d 573, 576–77 (7th Cir. 1992) (following Lowrance, upholding trial judge’s permission 

for attorney to continue to represent himself with respect to fees after plaintiff won verdict and fee award, and attorney withdrew during pendency of post-trial adjudication 

over amount of damages and fees; attorney acted on client’s behalf in securing verdict, 

and there was no evidence the client objected to attorney’s efforts to enlarge fee award).

102. See, e.g., Pulliam v. Allen, 466 U.S. 522, 543–44 (1984) (holding state judges 

liable for fees incurred in obtaining an injunction). The basis for liability in Pulliam was 

abrogated by a 1996 amendment to 42 U.S.C. § 1983 providing that “injunctive relief shall 

not be granted” in an “action brought against a judicial officer for an act or omission 

taken in such officer’s judicial capacity,” with limited exceptions.

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

104. Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754 (1989).
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intervenor. The Fourth and Seventh Circuits affirmed a denial of fees.105

The Eighth Circuit, however, affirmed an award of fees against a 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.106 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 their object in filing suit to begin with.”107

5. Are there special circumstances militating against an award?

Fee awards for prevailing parties are generally discretionary under feeshifting statutes. However, the Supreme Court has stated that an award 

should be given absent “special circumstances” that render one unjust.108

When “discern[ing] the limits on a district court’s discretion[,]” judges 

should look at “‘the large objectives’ of the relevant Act, which embrace 

certain ‘equitable considerations.’”109 In every Supreme Court case in 

which the defendants have argued that special circumstances exist, the 

Court has rejected the claim,110 with one notable exception involving a 

105. See Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 177 (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 denial of fees where defendant had opposed intervenor’s position and issue raised by intervenors was ancillary to 

main litigation).

106. 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”).

107. Id. at 1251 n.2.

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

Enters., Inc., 390 U.S. 400, 402 (1968)). Accord Hensley v. Eckerhart, 461 U.S. 424, 429 

(1983).

109. Martin v. Franklin Capital Corp., 546 U.S. 132, 139–40 (2005) (quoting Zipes,

491 U.S. at 759).

110. 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 (defendants showed good faith).
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case in which the plaintiffs recovered nominal damages.

111 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;112 the lawsuit’s conferring a private benefit on 

the plaintiff but no larger public benefit;113 the plaintiffs’ ability to pass 

their litigation costs on to consumers;114 the plaintiff’s proceeding in 

forma pauperis while benefiting from court-appointed counsel;115 the 

failure of a consent decree to mention fees;116 an award of injunctive relief 

only;117 a third party’s financing the plaintiffs’ suit;118 and the routine nature of the case.119

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.120 In another example, the Eighth Circuit found that nuisance settlements also constitute 

“special circumstances” that render an award “unjust.”121

111. See Farrar v. Hobby, 506 U.S. 103 (1992), discussed infra text accompanying 

notes 245–56.

112. Barlow-Gresham Union High Sch. v. Mitchell, 940 F.2d 1280, 1285–86 (9th 

Cir. 1991); Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990).

113. See, e.g., Wheatley v. Ford, 679 F.2d 1037, 1040 (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 large class of prospective plaintiffs; court of appeals reversed, stating that prevailing plaintiff “is entitled to reasonable 

attorney’s fees independent of the district court’s view of the greater good for the greater 

number”).

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

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

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

1984).

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

118. 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).

119. Staten v. Hous. Auth. of Pittsburgh, 638 F.2d 599, 605 (3d Cir. 1980).

120. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512, 1514 (10th Cir. 1990).

121. 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 
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6. Is there a fee waiver?

Prevailing parties may waive their right to a fee award as part of a settlement agreement. 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.122 The Ninth Circuit permits inferring a waiver from “clear evidence that . . . an ambiguous clause was intended [as a waiver] by both parties.”123 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.”124 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.125 However, the 

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

show that the release did not waive fees.126 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,127 while the Eighth Circuit holds that it may.128

In Evans v. Jeff D.,

129 the plaintiff accepted a generous 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 may be waived by the party. 

defendant is frivolous or groundless, solely in an effort to avoid the expense of 

litigation”).

122. Ashley v. Atlantic Richfield Co., 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).

123. Muckleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695, 698 (9th 

Cir. 1989).

124. Valley Disposal, Inc. v. Cent. Vermont Solid Waste Mgmt. Dist., 71 F.3d 1053, 

1058 (2d Cir. 1995).

125. Ellis v. Univ. of Kansas Med. Ctr., 163 F.3d 1186, 1201 (10th Cir. 1999); Muckleshoot, 875 F.2d at 698; El Club del Barrio, 735 F.2d at 100–01.

126. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998); Elmore v. Shuler, 787 F.2d 

601, 603 (D.C. Cir. 1986).

127. See Ellis, 163 F.3d at n.19 and cases cited therein.

128. Wray, 151 F.3d at 809.

129. 475 U.S. 717 (1986).
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Thus, settlements contingent on a waiver of a fee award are valid and 

enforceable.

At the other end of the spectrum from fee waivers, courts have expressed concerns about fees that are part of a “sweetheart” settlement, 

whereby the defendant pays a small amount to the plaintiff and a high 

amount in attorneys’ fees. A sweetheart settlement might occur in feeshifting or common fund contexts. In In re Bluetooth Headset Products 

Liability Litigation,

130 the Ninth Circuit identified at least three “subtle 

signs that class counsel have allowed pursuit of their own self-interests 

and that of certain class members to infect the negotiations”:

(1) when counsel receive a disproportionate distribution of the settlement, or when the class receives no monetary distribution but class 

counsel are amply rewarded;

(2) when the parties negotiate a “clear sailing” arrangement providing 

for the payment of attorneys’ fees separate and apart from class funds, 

which carries “the potential of enabling a defendant to pay class counsel 

excessive fees and costs in exchange for counsel accepting an unfair settlement on behalf of the class”; and

(3) when the parties arrange for fees not awarded to revert to defendants rather than be added to the class fund.131

The Third Circuit recommended a procedure to safeguard against this 

problem by insisting on “settlement of the damage aspect of the case separately from the award of statutorily authorized attorneys’ fees. . . . [to] 

eliminate the situation . . . of having, in practical effect, one fund divided 

between the attorney and client.”132 The Supreme Court, however, said 

courts may not require this structural approach,133 and courts have 

looked for other ways to control collusive settlements. All such approaches call for judges to evaluate the benefits of the settlement and 

130. 654 F.3d 935 (9th Cir. 2011).

131. Id. at 947 (citations omitted). See also Murray v. GMAC Mortg. Corp., 434 

F.3d 948, 952 (7th Cir. 2006); Mirfasihi v. Fleet Mortg. Corp., 356 F.3d 781, 785 (7th Cir. 

2004); Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 524 (1st Cir. 1991).

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

133. Evans, 475 U.S. at 738 n.30.
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compare the portion received by the prevailing party with the share received by that party’s attorney.134

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?

• Are there special considerations for awards to defendants?

• What are the procedural aspects of fee disputes?

1. What constitute fees?

Two Supreme Court cases addressed the definition and composition of 

attorneys’ fees. In Missouri v. Jenkins,

135 the Court examined 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), 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 proposi134. See, e.g., Laguna v. Coverall N. Am., Inc., 753 F.3d 918, 925 (9th Cir. 2014); 

Staton v. Boeing Co., 327 F.3d 938, 964 (9th Cir. 2003).

135. 491 U.S. 274 (1989).
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tion that the “reasonable attorney’s fee” provided for by statute should 

compensate the work of paralegals, as well as that of attorneys.136

The Court, in Richlin Security Service Co. v. Chertoff,

137 extended Jenkins’ rationale to attorney fee awards against the federal government under the Equal Access to Justice Act (EAJA). Because section 504(b)(1)(A) 

of the EAJA provides for awards at “prevailing market rates,” a litigant 

entitled to fees under the EAJA is entitled to recover fees expended for 

paralegal services at the market rate for such services. The language of the 

statute, the Court concluded, “leaves no doubt that Congress intended 

the ‘reasonable cost’ . . . to be calculated from the perspective of the litigant,” and not from the perspective of the cost to the attorney.138

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

139 the Court held 

that a fee-shifting statute does not authorize compensation for experts’ 

fees unless it expressly says that it does.140 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 Court reaffirmed the Casey ruling in the context 

of awarding “costs” under the Individuals with Disabilities Education 

136. 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. Id. at 287–88. See also Lipsett v. Blanco, 975 F.2d 934, 939 

n.5 (1st Cir. 1992) (“[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”).

137. 553 U.S. 571 (2008).

138. Id. at 579 (citing 5 U.S.C. § 504(b)(1)(A) (2008)).

139. 499 U.S. 83 (1991).

140. 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 Casey’s holding that such fees are unavailable unless expressly authorized by 

statute. The EAJA is another example of a statute that expressly authorizes awards of expert witness fees. See 5 U.S.C. § 504(b)(1)(A) (“‘fees and other expenses’ includes the 

reasonable expenses of expert witnesses”).
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25

Act, reasoning that the term “costs” is a “term of art” that does not include expert fees.141

Jenkins and Casey focus on determining fee components in relation 

to traditional billing and fee-shifting practice.142 Courts of appeals have 

addressed similar issues in relation to awards of costs for electronic discovery, computer-assisted legal research, and other expenses of modern 

litigation.143 The determination of what constitutes a reasonable fee—in 

terms of the work performed by attorneys and paralegals, and their billing rates—is a somewhat different matter, treated at length below.

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

In Hensley v. Eckerhart,

144 the Supreme Court established that, in feeshifting cases, the basis of a fee award is the “lodestar”—the number of 

hours reasonably expended multiplied by the applicable hourly market 

141. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006).

142. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1557 (9th Cir. 1992) (remanding for consideration whether assorted claimed costs (e.g., filing cabinet) are normally 

“treated as reimbursable in a private attorney-client relationship”); Davis v. Mason Cnty., 

927 F.2d 1473, 1488 (9th Cir.) (affirming compensation for travel costs because “expenses 

incurred during the course of litigation which are normally billed to fee-paying clients” 

are compensable under fee-shifting statutes), cert. denied, 112 S. Ct. 275 (1991).

143. See, e.g., Country Vintner of N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 

249, 261 (4th Cir. 2013) (“only the conversion of native files to TIFF and PDF formats, 

and the transfer of files onto CDs, constituted ‘making copies’ under [28 U.S.C.] 

§ 1920(4)”); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 160 (3d Cir. 

2012) (“only scanning and file format conversion can be considered to be ‘making copies,’ an activity that amounts to approximately $30,000 of the more than $365,000 in 

electronic discovery charges taxed in this case”); United States ex rel. Evergreen Pipeline 

Constr. Co. v. Merritt Meridian Constr. Corp., 95 F.3d 153, 172 (2d Cir. 1996) (holding 

that computer-aided legal research costs are part of attorneys’ fees and may not be separately billed); Haroco, Inc. v. Am. Nat’l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440–

41 (7th Cir. 1994) (same); Standley v. Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 n.7 (8th 

Cir. 1993) (same).

144. 461 U.S. 424 (1983).
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rate for legal services.145 This is true regardless of whether the plaintiff and 

the attorney had a private (contingent or hourly) fee contract.146

Several appellate courts have rejected lower courts’ attempts to calculate fees using a method other than the lodestar.147 These cases involved 

low damages or limited success.148 The First Circuit, however, appears to 

have left the door open to an alternative method.

149

Prior to Hensley, many courts calculated fees by analyzing the Johnson factors, set out in Johnson v. Georgia Highway Express.

150 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 

145. 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.”).

146. See Venegas v. Mitchell, 495 U.S. 82 (1990) (holding § 1988 didn’t prohibit 

contingent fee agreement in which prevailing civil rights plaintiff paid his attorney more 

than statutory award against defendant); Blanchard v. Bergeron, 489 U.S. 87 (1989) 

(holding fee award under § 1988 may exceed amount dictated by contingent fee 

agreement).

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

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

not made); Morales v. City of San Rafael, 96 F.3d 359, 365 (9th Cir. 1996) (rejecting 

court’s “reasoning” of what appropriate fee should be); 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 “multiple-of-damages approach”). See also

Konits v. Valley Stream Cent. High Sch. Dist., 350 F. App’x 501 (2d Cir. 2009).

148. See infra sections I.B.4.a.ii & iii.

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

(holding “error to forgo the lodestar” and stating “[w]hile 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 notes 255 and 

274.

150. 488 F.2d 714 (5th Cir. 1974) The Johnson factors are (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. Id. at 717.
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27

for adjusting the lodestar.

151 Only the Fifth and Eleventh Circuits clearly 

require consideration of these factors in each case.

152

a. Reasonable rate

The reasonable rate is generally determined by reference to the marketplace.153 Courts agree that an attorney’s customary billing rate is the 

proper starting point for calculating fees.154 However, that rate is not always conclusive. In Blum v. Stenson,

155 the Supreme Court held that a 

nonprofit organization is entitled to compensation at the market rate of 

the legal community at large.156 The D.C. Circuit extended this holding to 

for-profit attorneys who charge lower rates for some clients in an effort to 

promote the public interest.157 There are other exceptions as well. Most 

151. See infra section I.B.4 (“Should the lodestar be adjusted?”) for discussion of 

Hensley. See also Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986) (“Johnson factors are to 

be considered . . . in determining the reasonable rate and the reasonable hours”).

152. See, e.g., Nisby v. Court of Jefferson Cnty., 798 F.2d 134, 137 (5th Cir. 1986) 

(reversing award because court didn’t 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). The Kerr factors that are not subsumed in the lodestar calculation should be considered in determining whether adjustments to the lodestar are warranted. See Morales, 96 F.3d at 363–64 nn.8–10.

153. 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’”).

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

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

Cunningham v. City of McKeesport, 753 F.2d 262, 268 (3d Cir. 1985), vacated on other 

grounds, 478 U.S. 1015 (1986).

155. 465 U.S. 886 (1984).

156. The Third, Ninth, Federal, and D.C. Circuits have applied Blum and held a 

market-based award in order when fees are awarded to a salaried union attorney, provided the union deposits the fee into a segregated litigation fund. Raney v. Fed. Bureau of 

Prisons, 222 F.3d 927 (Fed. Cir. 2000) (abrogating Devine v. Nat’l Treasury Employees 

Union, 805 F.2d 384 (Fed. Cir. 1986); Kean v. Stone, 966 F.2d 119, 122–24 (3d Cir. 1992); 

Am. Fed’n of Gov’t Employees v. Fed. Labor Relations Auth., 944 F.2d 922, 937 (D.C. Cir. 

1991); Curran v. Dep’t of Treasury, 805 F.2d 1406, 1408 (9th Cir. 1986).

157. 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 distinguished 

Save Our Cumberland Mountains and held that when a lawyer charged all his clients a 

submarket rate, that rate trumps the general market rate. Barrow, 977 F.2d at 1105–06.
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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.158 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.159 Additionally, some courts base an award on an hourly rate lower 

than the attorney’s usual rate if the litigation is outside the attorney’s 

usual field of practice.160

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.161 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 $75.162 It cited counsel’s 

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

Mason Cnty., 927 F.2d 1473, 1488 (9th Cir.); Ackerly Commc’ns 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 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 Cnty. Solid Waste Mgmt. v. EPA, 169 F.3d 755, 759 (D.C. Cir. 

1999).

159. 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. 1987); Shakopee Mdewakanton Sioux 

Cmty. v. City of Prior Lake, Minn., 771 F.2d 1153, 1160–61 (8th Cir. 1985). But see Gusman v. Unisys, 986 F.2d 1146, 1150–51 (7th Cir. 1993) (lawyer’s own rate is presumptive 

rate, and 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”).

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

1991); Buffington v. Baltimore Cnty., 913 F.2d 113, 130 (4th Cir. 1990); Ramos v. Lamm, 

713 F.2d 546, 555 (10th Cir. 1983); Moore v. Matthews, 682 F.2d 830, 840 (9th Cir. 1982).

161. Blum v. Stenson, 465 U.S. 886, 895–96 n.11 (1984).

162. Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990).
I. Fee-Shifting Statutes

29

“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.”163

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.164 More 

often, courts apply a flat rate for all work by a particular attorney in the 

case.165

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.166 The Tenth Circuit held 

that it is an abuse of discretion to ignore a party’s evidence of a market 

rate and apply the rate the trial court “consistently grants.”167

The Laffey matrix, established in 1983 by the U.S. District Court for 

the District of Columbia, is a tool for assessing presumptively reasonable 

local market rates for attorneys based on years of legal experience.168 The

Civil Division of the U.S. Attorney’s Office for the District of Columbia 

updates the rates annually to reflect changes in the Consumer Price Index 

(CPI) for Washington, D.C.169

163. Id. at 278.

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

165. See, e.g., New Jersey v. EPA, 703 F.3d 110 (D.C. Cir. 2012); Davis v. San Francisco, 976 F.2d 1536 (9th Cir. 1992); In re Meese, 907 F.2d 1192 (D.C. Cir. 1990); Spell v. 

McDaniel, 824 F.2d 1380 (4th Cir. 1987); 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).

166. Washington v. Philadelphia Cnty. Ct. of Common Pleas, 89 F.3d 1031, 1036 

(3d Cir. 1996).

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

168. Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), aff’d in part and 

rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). The D.C. Circuit squarely approved use of the Laffey matrix in Save Our Cumberland Mountains v. Hodel, 857 F.2d 

1516, 1524 (D.C. Cir. 1988) (en banc), and in Covington v. District of Columbia, 57 F.3d 

1101, 1111 (D.C. Cir. 1995). For discussion of the use of the matrix to assist in managing 

fee litigation, see infra text accompanying notes 654–58.

169. Act Now to Stop War and End Racism Coal. v. District of Columbia, 286 

F.R.D. 145, 149 (D.D.C. 2012). For rates, see http://www.justice.gov/usao/dc/divisions/
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The Laffey matrix has been applied outside of the District of Columbia, but generally in limited circumstances. For example, the Third Circuit affirmed a district court’s application of a variation of the matrix in 

reviewing a fee award to District of Columbia attorneys.170 The Seventh 

Circuit suggested, in dicta, that a trial court might take judicial notice of 

the Laffey matrix,

171 and indicated that “[d]istrict courts in this Circuit 

have occasionally considered the Laffey Matrix when considering the 

reasonableness of hourly rates for fee awards.”172 The court acknowledged, however, its and other courts’ “concerns about the Matrix’s utility 

outside its circuit of origin.”173 Although the Fourth and Ninth Circuits 

accept the Laffey matrix as a useful starting point—and as some evidence 

of hourly market rates174—they expressed skepticism that it has much 

usefulness outside of the District of Columbia.175

Laffey_matrix_2003-2013.pdf. An alternative, the Salazar matrix, is enhanced by the legal 

services component of the CPI. Act Now to Stop War, 286 F.R.D. at 149 (citing Salazar v. 

D.C., 123 F. Supp. 8, 15 (D.D.C. 2000)).

170. Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694, 708–10 (3d Cir. 

2005). The district court found the attorneys were entitled to be compensated at market 

rates exceeding those of the forum under an exception to the forum rate rule. Id. at 706–

07.

171. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011).

172. Id. at 650.

173. Id. at 649–50.

174. Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219, 229 

(4th Cir. 2009) (“Laffey matrix is a useful starting point to determine fees, not a required 

referent”); Mancini v. Dan P. Plute, Inc., 358 F. App’x 886, 889–90 (9th Cir. 2009) (attorney “introduced sufficient evidence, by reference to the Laffey matrix, to demonstrate that 

the requested hourly rate of $435 was reasonable in Washington, D.C. for attorneys at the 

highest experience level”).

175. See, e.g., Prison Legal News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir. 

2010):

[J]ust because the Laffey matrix has been accepted in the District of Columbia 

does not mean that it is a sound basis for determining rates elsewhere, let 

alone in a legal market 3,000 miles away. It is questionable whether the matrix 

is a reliable measure of rates even in Alexandria, Virginia, just across the river 

from the nation’s capital. 

Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 245 (4th Cir. 2009); see also Grissom 

v. Mills Corp., 549 F.3d 313, 323 (4th Cir. 2008) (noting that the plaintiff provided “no 

evidence” that the Laffey matrix was “a reliable indicator of the hourly rates of litigation 

attorneys in Reston, Virginia, a suburb of Washington, D.C”).
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31

b. Hours reasonably expended

The Supreme Court has said that a counsel is expected to exercise “‘billing judgment,’”176 and that district courts “should exclude from this initial fee calculation hours that were not ‘reasonably expended,’” including 

“excessive, redundant, or otherwise unnecessary” work.177 The Court has 

also said, “the defendant cannot litigate tenaciously and then be heard to 

complain about the time necessarily spent by the plaintiff in response.”178

Two experienced judges have recommended making it a practice to compare plaintiff billing records with defendant billing records as one measure of the reasonableness of a fee request.179

Lower courts have reduced fee awards when there has been duplication of services;180 failure to pursue settlement prior to filing a straightforward suit;181 excessive total time billed considering the lack of difficulty of 

the case;182 excessive time billed for particular tasks;183 use of too many 

176. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (quoting Copeland v. Marshall, 

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

177. Id.

178. City of Riverside v. Rivera, 477 U.S. 561, 580 n.11 (1986) (plurality opinion).

179. See infra section III.A.8. See also Barbara J. Rothstein & Thomas E. Willging, 

Managing Class Action Litigation: A Pocket Guide for Judges 35 (Federal Judicial Center, 

3d ed. 2010) (“Another type of cross-check involves examining the defendants’ attorney 

fee records as a measure of what might be a reasonable number of hours or a total 

payment.”).

180. See, e.g., Ackerly Commc’ns v. Somerville, 901 F.2d 170, 171–72 (1st Cir. 

1990).

181. 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).

182. See, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992). The Second Circuit held it was 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.

183. See, e.g., Broyles v. Director, 974 F.2d 508, 510–11 (4th Cir. 1992) (finding 

several items excessive—e.g., an hour to read brief opinion and fifteen-minute calls to 

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 
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attorneys184 or too much conferencing;185 unnecessary work by a trial 

consultant deemed a “non-lawyer[ ] . . . doing lawyers [sic] work”;186

publicity work;187 reading or reviewing books not closely related to the 

case;188 performance of secretarial or clerical tasks by lawyers;189 and other 

assorted work deemed unnecessary.190 The Tenth Circuit held it is not a 

per se abuse of discretion to award fewer hours than the defendant agrees 

are reasonable.191

The Seventh Circuit held that it was appropriate to deny fees completely when the petition for fees was “intolerably inflated” and “outrageously excessive.”192 The First Circuit reversed an award of fees because 

work on fee 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 abuse of 

discretion).

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

half because firm used several attorneys when 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.”).

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

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

187. Halderman by Halderman v. Pennhurst State Sch. & Hosp., 49 F.3d 939 (3d 

Cir. 1995) (public relations); Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 

(4th Cir. 1994) (same); 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).

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

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

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

permitted billing of clerical work, e.g., court filings, at lawyers’ rates).

190. See, e.g., Olson, 884 F.2d at 1429 (disallowing hours spent on secretarial overtime, overtime dinner expense, press release, and futile lobbying to defeat bill that was 

sure to be enacted).

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

192. Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980) (attorney requested fees 

for 800 hours of billable time, even though his work consisted of filing a six-page complaint and awaiting the outcome of pending Supreme Court litigation). See also Scham v. 
I. Fee-Shifting Statutes

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the requesting party’s failure to cull unnecessary hours was “inexcusable.”193 The Fourth Circuit reversed an award of fees where counsel failed 

to separate hours spent on a complex but unsuccessful claim from hours 

spent on a simple, successful breach of contract claim. It found the 

amount requested “so outrageously excessive it shocked the conscience of 

the court.”194 In contrast, the Ninth Circuit held that, in the absence of 

evidence of bad faith or failure to cull hours spent on unsuccessful 

claims, a trial judge had no basis for denial of an entire fee petition because the amount requested shocked his conscience.195

Tasks such as travel,196 lobbying,197 and public relations work198 are 

compensable if they are necessary or useful in litigating the case. Moreover, reasonable work at all stages of the litigation is compensable, including prefiling work;199 work on an appeal and defending against a petition for certiorari;200 work on a fee petition and litigating a fee dispute;201

Dist. Courts Trying Criminal Cases, 148 F.3d 554, 558 (5th Cir. 1998) (claim for 936 

hours in a case resolved on summary judgment and involving limited discovery, no court 

appearances, no settlement discussions, and no meetings).

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

194. Fair Hous. Council of Greater Wash. v. Landow, 999 F.2d 92, 97, 98 (4th Cir. 

1993).

195. Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1127–28 (9th Cir. 2008).

196. 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 F.2d 

1120, 1122 (10th Cir. 1990) (affirming compensation at only 25% of standard hourly rate 

for travel time).

197. 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).

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

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

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

201. 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. 1985) (per curiam) (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. See

Iqbal v. Golf Course Superintendents, 900 F.2d 227, 229–30 (10th Cir. 1990); Finch v. 
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and work in connection with post-judgment or post-decree administration, monitoring, or fee collection.202

The Third Circuit, in Gulfstream III Associates, Inc. v. Gulfstream 

Aerospace Corp.,

203 affirmed an attorney fee 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:

[I]f the 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 previously been compensated for those fees and expenses, 

then the district court may include those fees and expenses in its fee 

award.204

The Eighth Circuit followed the Third Circuit’s analysis in Gulfstream

and held that the plaintiffs in two cases that were consolidated were 

properly awarded attorneys’ fees equal to 90% of attorneys’ billed time.205

In assessing the reasonableness of fee requests, the Tenth Circuit has 

said that, while a district court is not bound by the billing activity of the 

parties, “we think it a rare case in which the district court should award 

significantly fewer hours than those proposed as reasonable or billed by 

the losing party in a civil rights suit.”206

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).

202. 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).

203. 995 F.2d 414 (3d Cir. 1993).

204. Id. at 420 (and pointing out that although the defendant lacked opportunity to 

ensure the plaintiff’s litigation costs were “not unnecessarily escalated” in litigation to 

which it wasn’t party, the district court had responsibility “to award fees only for work 

‘reasonably expended.’”).

205. Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996). See also infra note 227.

206. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1251 (10th Cir. 1998). Cf. 

Ramos v. Lamm, 713 F.2d 546, 554 (10th Cir. 1983) (“The court can look to how many 

lawyers the other side utilized in similar situations as an indication of the effort required.”). The court should also consider whether particular “responses [were] necessitated by the maneuvering of the other side.” Id.
I. Fee-Shifting Statutes

35

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.”207 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.”208

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.209

The circuits’ precise requirements or preferences for documentation 

differ. For example, the Eleventh Circuit has said that

the 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.210

Although the Third Circuit has agreed “that a fee petition should include 

‘some fairly definite information as to the hours devoted to various general activities, e.g., pretrial discovery, settlement negotiations, and the 

hours spent by various classes of attorneys,’”211 it has explicitly rejected 

the requirement of time summaries, stating that a chronological listing of 

207. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).

208. Id. Accord In re Synthroid Mktg. Litig. (Synthroid I), 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).

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

210. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) 

(citations omitted).

211. 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)).
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time spent per task is sufficient.212 A number of courts have required that 

such a listing not be overly general.213

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.214 The Fifth Circuit has said that contemporaneous fee records are the “preferred practice” but are not required.215 The 

Ninth and Eleventh Circuits have held that reconstructed time records 

suffice if “supported by other evidence such as testimony or secondary 

documentation.”216 The Eighth Circuit has said that “whether reconstructed records accurately document the time attorneys have spent is 

best left to the discretion of the [trial] court.”217

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.218

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

213. 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 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).

214. 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, 553 (10th Cir. 1983); McCann v. Coughlin, 698 

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

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

903 F.2d 352 (5th Cir. 1990). However, the court suggested that, in certain cases, the absence of such records would be grounds for reducing the requested fee. In Walker v. 

HUD, 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.”

216. Frank Music Corp. v. MGM, Inc., 886 F.2d 1545, 1557 (9th Cir. 1989). Accord

Jean v. Nelson, 863 F.2d 759, 772 (11th Cir. 1988), aff’d, 496 U.S. 154 (1990).

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

218. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (fee applicant has burden 

“to produce satisfactory evidence—in addition to the attorney’s own affidavits—that the 

requested rates are in line with those prevailing in the community for similar services by 
I. Fee-Shifting Statutes

37

This evidence generally takes the form of affidavits from other counsel 

attesting to their rates or the prevailing market rate.219 Several courts have 

stated that, especially in the absence of sufficient documentation, a trial 

court may rely on its own knowledge of the market.220 A trial court may 

not, however, substitute its notions of fairness for the market rate.221

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.222

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.”).

219. 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).

220. 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. Cf.

Begley v. Secretary of HHS, 966 F.2d 196, 198–99 (6th Cir. 1992) (explanation can’t be 

merely court’s personal belief concerning market, “ignor[ing] the only evidence” on 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).

221. 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.”).

222. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
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a. Downward adjustments

i. Incomplete success

Incomplete success is the most common basis for a downward adjustment in attorney fee awards. In Hensley v. Eckerhart,

223 the Supreme 

Court said that when the plaintiff advances discrete, essentially unrelated 

claims224 and prevails on some but not others, it should not be compensated for work on the unsuccessful claims.225 (In documenting their work, 

plaintiffs’ attorneys are expected, where possible, to segregate work performed by claim.226) 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.227 The following exceptions may be 

instructive.

223. 461 U.S. 424 (1983).

224. That is, claims not involving “a common core of facts or . . . based on related 

legal theories.” Id. at 435.

225. Id.

226. Id. 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 they 

pertained only to work on their successful claim); Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (counsel applying for fees “should have maintained records to show the time spent on the different claims”). Cf. Lipsett v. Blanco, 975 

F.2d 934, 941 (1st Cir. 1992) (“If 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.”).

227. 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); Pinkham v. Camex, Inc., 84 F.3d 292, 294 (8th Cir. 1996) (finding 90% 

of attorney hours compensable because they were necessary for two intertwined cases, 

only one of which was subject to fee-shifting statute); 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) (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).
I. Fee-Shifting Statutes

39

• Even though all claims stemmed from a common incident, the

claims alleging supervisory liability could have been severed from 

the claims alleging direct participation in an excessive force lawsuit. It was thus an abuse of discretion to award fees for the severable, unsuccessful claims.228

• The plaintiff lost his claim that discharge from public employment was in retaliation for exercising his First Amendment 

rights, but prevailed on his claim that the lack of a pretermination hearing violated due process. The two claims were so distinct that the district court did not err in discounting hours spent 

on the unsuccessful claim.229

• The plaintiff prevailed against several state officials, but lost 

against the governor and the attorney general. The court held 

that the attorney hours spent unsuccessfully defending against 

the motions to dismiss “were sufficiently separable from the rest 

of the litigation to warrant deduction.”230

• Because the plaintiffs’ claims for partial and total disability under 

workers’ compensation were based on “different factual theories” 

and “different legal theories,” a deduction for incomplete success 

was in order.231

• The plaintiffs had 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 

(e.g., jury selection). The proper method is to estimate how 

much time would have been required if the plaintiffs had pursued only the successful claim.232

ii. Limited success

In Hensley, the Supreme Court did not limit downward adjustments in 

attorneys’ fees for incomplete success to situations involving unrelated 

228. Figueroa-Torres v. Todelo-Davilla, 232 F.3d 270, 278–79 (1st Cir. 2000).

229. Winter v. Cerro Gordo Cnty. Conservation Bd., 925 F.2d 1069 (8th Cir. 1991).

230. Rode v. Dellarciprete, 892 F.2d 1177, 1185 (3d Cir. 1990).

231. Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).

232. Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988). Accord Schultz v. Hembree, 975 F.2d 572, 577 (9th Cir. 1992).
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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.233 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.234 Many defendants have asked courts to reduce awards because of 

the plaintiff’s unimpressive results, 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,235 but there 

have been exceptions.236

233. 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 about 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 P.R., Inc., 124 F.3d 331, 338 (1st Cir. 1997).

234. 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).

235. See, e.g., Joyce v. Town of Dennis, 720 F.3d 12, 31 (1st Cir. 2013) (finding “an 

error of law for the district court to link the amount of recoverable attorney’s fees solely 

to the amount of her damages”); Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) 

(holding trial court erred in denying fees, as a matter of law, incurred by unsuccessful 

argument in support of ultimately successful claim). See also 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); Herrington v. Cnty. 

of Sonoma, 883 F.2d 739, 745 (9th Cir. 1989); Jackson v. Crews, 873 F.2d 1105, 1109–10 

(8th Cir. 1989).

236. 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 Comprehensive 

Environmental Response, Compensation, and Liability Act (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 claim suggested to her by court 

post-trial, and even on that claim she received only 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 fee award where plaintiffs lost on 
I. Fee-Shifting Statutes

41

Courts have wrestled with the “limited success” inquiry in various 

other situations:

• In a Ninth Circuit case in which 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 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.237

• However, where the Ninth Circuit 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 claim 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.”238

• Although 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.

most claims and most individual plaintiffs received no relief); 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).

237. Cabrales v. Cnty. of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991).

238. Clark v. City of Los Angeles, 803 F.2d 987, 993 (9th Cir. 1986).
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[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.”239

• District judges are not required to cull each time entry to determine the fee applicant’s degree of success regarding that activity. 

The Second Circuit endorsed using “a percentage deduction ‘as a 

practical means of trimming fat from a fee application.’”240

• The Seventh Circuit observed that confusion can arise if a district 

court makes deductions from the plaintiff’s proposed award for 

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.”241

• The Fifth Circuit, in Migis v. Pearle Vision, Inc.,

242 held that the 

trial court did not give adequate consideration to the eighth 

239. Plyler v. Evatt, 902 F.2d 273, 280–81 (4th Cir. 1990) (citations omitted). 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.

240. McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 450 F.3d 91, 96 

(2d Cir. 2006) (citation omitted). See also infra section III.A.3, which discusses sampling 

fee records.

241. Spanish Action Comm., 811 F.2d at 1138.

242. 135 F.3d 1041 (5th Cir. 1998).
I. Fee-Shifting Statutes

43

Johnson factor, “the amount involved and the result obtained,” 

when it lowered attorneys’ fees by only 10% for limited success.243 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 Fifth Circuit 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.”244

iii. Low or nominal damages

An obvious case of limited success is an award of only nominal damages. 

In Farrar v. Hobby,

245 the Supreme Court held that the plaintiff receiving 

such a judgment may be awarded “low fees or no fees.”246 In Farrar, 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,

247 but held that such a plaintiff, 

albeit a prevailing party, may be denied an award based on lack of 

success.

But the Court 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. The Court provided little guidance as 

to how to gauge the success of a party receiving nominal damages,248 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”249 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 

243. Id. at 1047–48. See supra note 150 for all factors set forth in Johnson v. Georgia 

Highway Express, 488 F.2d 714 (5th Cir. 1974).

244. Migis, 135 F.3d at 1048.

245. 506 U.S. 103 (1992).

246. Id. at 115.

247. See supra text accompanying notes 30–31.

248. 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.

249. Id. at 121 (O’Connor, J., concurring).
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nominal damages can represent a victory in the sense of vindicating 

rights even though no actual damages are proved.”250 The court should 

look at 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.251

The Seventh Circuit adopted Justice O’Connor’s test for determining 

“whether a prevailing party has achieved a mere technical victory inappropriate for fees.”252 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.’”253 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.”254

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.255 The Eighth Circuit upheld a nofee award 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.

256

250. Id.

251. Id. at 121, 122.

252. Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 731 (7th Cir. 

1995).

253. Id. (quoting Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993)).

254. 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).

255. Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999).

256. Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir. 1995) (police brutality). 

The court noted, “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.
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iv. Disproportionately low damages award

At least in cases that serve the public interest, the fact that the lodestar far 

exceeds the damages award is not itself grounds for a downward adjustment in attorneys’ fees. In City of Riverside v. Rivera,

257 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 Supreme Court upheld the award, noting that the civil 

rights fee-shifting statute was adopted precisely because damages awards 

in civil rights cases were 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 he 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.”258 The plurality did not say whether it agreed.

Relying on Justice Powell’s concurrence, a district court 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.”259 The Second Circuit laid down its own rule: The 

lodestar “should not be reduced simply because a plaintiff recovered a 

low damage award.”260 The Third Circuit has adopted the identical 

rule.261 Likewise, the First Circuit has said that “disproportion alone does 

257. 477 U.S. 561 (1986).

258. Id. at 585, 586 n.3 (Powell, J., concurring).

259. Cowan v. Prudential Ins., 935 F.2d 522, 526 (2d Cir. 1991).

260. Id.

261. 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) (rejecting 

contention that disproportionality holding in Rivera applies only in civil rights cases); 
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not render an award unreasonable.”262 The Seventh Circuit elaborated on 

the rationale for rejecting disproportionality as a rule of thumb:

[I]n many cases the amount in controversy and the complexity of the 

case will track with one another. But small claims can be complex and 

large claims can be very straightforward. So while a fee request that 

dwarfs the damages award might raise a red flag, measuring fees against 

damages will not explain whether the fees are reasonable in any particular case.263

The Eleventh Circuit has said that “[u]se of a the multiplier as a sole or 

dominant criterion” is improper 264 Such an approach “tends to diminish 

the public benefit, to make the fee depend upon substantiality of monetary relief, and to reduce the inquiry to the arithmetical exercise rejected 

by the Supreme Court in Evans v. Jeff D., 475 U.S. at 736.”265 The Fifth 

Circuit agrees: “the district court should avoid placing undue emphasis 

on the amount recovered.”266

Citing Rivera, the First Circuit noted that “[t]he amount of the monetary recovery is ‘certainly [a] relevant’ factor to be considered in setting 

the size of an attorney fee.”267 Disproportionality could come into play 

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 substantial public 

interest). See also Washington v. Philadelphia Cnty. Ct. 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”).

262. 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. NFL Players Ass’n, 273 F.3d 1124 (D.C. Cir. 2001) 

(fact that fees are nearly five times recovery doesn’t make them excessive).

263. Anderson v. AB Painting & Sandblasting, Inc., 578 F.3d 542, 546 (7th Cir. 

2009).

264. 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).

265. Cullens, 29 F.3d at 1494.

266. Von Clark v. Butler, 916 F.2d 255, 260 (5th Cir. 1990). Cf. Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), discussed supra text accompanying notes 242–

44.

267. Domegan, 972 F.2d at 421.
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when determining if counsel spent an unreasonable number of hours on 

the case in light of the probable outcome.

268

Of course, extreme disproportionality may result when the plaintiff 

receives nominal damages only. The Supreme Court held that, in such 

cases, it may be appropriate to award the plaintiff no fees or only low 

fees.269

v. Rejecting a Rule 68 settlement offer

In Marek v. Chesny,

270 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 (Offer of Judgment), 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,”271 bringing the fee award within the ambit of Rule 68’s settlement rejection provision for statutes that refer to attorneys’ fees as “costs.”272 If, under a different fee-shifting statute, fees are not considered costs, a different result 

268. See City of Riverside v. Rivera, 477 U.S. 561, 590 (1986) (Rehnquist, C.J., dissenting) (“I find it hard to understand how any attorney can be said to have exercised 

‘billing judgment’ in spending such huge amounts of time on a case ultimately worth only 

$33,350.”). Although Chief Justice Rehnquist’s argument was rejected, the Court did not 

repudiate 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).

269. Farrar v. Hobby, 506 U.S. 103 (1992), discussed supra text accompanying notes 

30–31, 245–56.

270. 473 U.S. 1 (1985).

271. 42 U.S.C. § 1988.

272. Rule 68(d) provides that if a party makes a timely offer of judgment and “the 

judgment that the offeree finally obtains is not more favorable than the unaccepted offer, 

the offeree must pay the costs incurred after the offer was made.” 
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obtains.273 Of course, rejection of an informal settlement agreement not 

made pursuant to Rule 68 does not affect an award of fees.274

vi. Factors reflected in the lodestar

District courts have been reversed for making downward adjustments in 

attorney fee awards based on factors that are subsumed in the lodestar

analysis. In one case, the district court had based a downward adjustment, in part, on 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.

275 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.276 Furthermore, it held that to make a reduction based on simplicity “could lead to the incongruous result of attorneys being less likely to take cases where a person’s civil rights have been 

obviously and clearly violated.”277

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.278

273. See, e.g., Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1337 (4th Cir. 

1996) (Rule 68 can’t preclude fees payment pursuant to 42 U.S.C. § 2000e-5(g)(2)(B)(i), 

but rejection of settlement offer can be considered in determining if or how much fees 

should be awarded); Int’l Nickel Co. v. Trammel Crow Distrib. Corp., 803 F.2d 150, 157 

n.2 (5th Cir. 1986) (rejection of Rule 68 offer didn’t preclude fee award where state feeshifting statute authorized fees “in addition” to costs rather than “as part of costs”).

274. See Cole v. Wodziak, 169 F.3d 486, 487 (7th Cir. 1999) (clear error to reduce 

lodestar because of oral settlement offer).

275. Cunningham v. Los Angeles, 859 F.2d 705, 710–13 (9th Cir. 1988) (acknowledging that in rare cases, quality of representation may be a basis for adjustment to lodestar, but in this case, there was no showing that mediocre performance wasn’t subsumed 

in lodestar).

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

277. Id.

278. Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593, 598 (7th Cir. 1999).
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b. Upward adjustments

A primary motive for enhancing the lodestar fee calculation is to provide 

an incentive for lawyers to represent parties in meritorious cases that 

might not otherwise be litigated. The Supreme Court’s starting point for 

reviewing proposed upward adjustments of lodestar calculations is that 

“a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to 

undertake the representation of a meritorious civil rights case.”279 The 

second principle, however, is that “the lodestar method yields a fee that is 

presumptively sufficient to achieve this objective.”280

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.

281 Therefore, the 

Eighth Circuit overturned a fee enhancement for “complexity of the case 

and the absence of court precedent,” stating “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.”282 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.283

279. Perdue v. Kenny A., 559 U.S. 542, 552 (2010). See also Martin A. Schwartz, 

Section 1983 Litigation (Federal Judicial Center, 3d ed. 2014).

280. Perdue, 559 U.S. at 552.

281. See, e.g., id. at 553 (circumstances in which superior attorney performance isn’t 

adequately factored into lodestar calculation for award of reasonable attorneys’ fees in 

civil rights case are rare and exceptional, and require specific evidence that lodestar fee 

wouldn’t have been adequate to attract competent counsel). See also 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).

282. Hendrickson v. Branstad, 934 F.2d 158, 163 (8th Cir. 1991).

283. Shipes v. Trinity Indus., 987 F.2d 311, 321 (5th Cir. 1993).
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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 not 

generally a basis for a fee enhancement.284 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 lodestar may be enhanced.285 The burden of documenting the appropriateness of such an 

upward enhancement rests on the applicant.286 If an enhancement is 

granted (which was not the case in Delaware Valley I), a district court or 

court of appeals must make “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].”287 The Court in Perdue

identified several objective factors that might support an enhancement, 

such as “where the method used in determining the hourly rate employed 

in the lodestar calculation does not adequately measure the attorney’s 

true market value,” perhaps because it focuses on a single factor such as 

years of law practice and ignores qualitative factors.288

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 

284. Perdue, 559 U.S. at 552–53; Blum, 465 U.S. at 899.

285. Perdue, 559 U.S. at 553–58; Blum, 465 U.S. 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 any indication 

that the lodestar figure . . . was far below awards made in similar cases where the court 

found equally superior quality of performance.”).

286. Perdue, 559 U.S. at 553; Delaware Valley I, 478 U.S. at 567–68; Blum, 465 U.S. 

at 898.

287. Delaware Valley I, 478 U.S. at 567–68. See also Shipes, 987 F.2d at 322 (holding 

enhancement for exceptional results “may have been warranted”; remanding for determination “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.”).

288. Perdue, 559 U.S. at 554–55. Other factors supporting a lodestar enhancement 

might include the presence of extraordinary expenses and delays in payment due to protracted litigation, “particularly where the delay is unjustifiably caused by the defense.” Id. 

at 556.
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the most adverse circumstances.”289 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.”290 Similarly, a 

First Circuit panel acknowledged the “strength of the attorneys’ performance [and] the magnitude of their triumph,” but nevertheless reversed 

an upward adjustment: “[W]e see nothing in the record that indicates 

that the services and results overshadowed, or somehow dwarfed, the 

lodestar.”291

iii. Other upward adjustments

Three circuits have held that an upward adjustment in the fee award is 

appropriate to compensate for “undesirability” of the case.292 The Ninth 

Circuit affirmed an upward adjustment in a case in which counsel’s obligation to the class would continue for another ten years.293

iv. Delay in payment

The Supreme Court has stated that a trial court has discretion to compensate the award recipient for delay in payment.294 This can be achieved 

289. Hollowell v. Gravett, 723 F. Supp. 107, 110 (E.D. Ark. 1989).

290. Alberti v. Klevenhagen, 896 F.2d 927, 936 (5th Cir.), vacated on other grounds, 

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

291. Lipsett v. Blanco, 975 F.2d 934, 942–43 (1st Cir. 1992).

292. See Barnes v. City of Cincinnati, 401 F.3d 729, 746 (6th Cir. 2005) (affirming 

fee multiplier of 1.75 for representing transgendered police officer in Title VII case where 

“the result achieved was extraordinary and the case was highly controversial, based on the 

[attorneys’] affidavits . . . that few lawyers locally or nationally would take such a case”); 

Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691, 697–99 (9th Cir. 

1996) (holding fee multiplier appropriate in civil rights action that successfully challenged 

constitutionality of Guam’s anti-abortion statute); Alberti v. Klevenhagen, 903 F.2d 352 

(5th Cir. 1990) (holding enhancement proper because it was required to attract competent counsel for prison conditions litigation and was supported by testimony from expert 

economist on how local market treats such cases).

293. Wing v. Asarco Inc., 114 F.3d 986, 989 (9th Cir. 1997).

294. Missouri v. Jenkins, 491 U.S. 274, 284 (1989). See also Gates v. Deukmejian, 

987 F.2d 1392, 1407 (9th Cir. 1992); Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992).

In Library of Congress v. Shaw, 478 U.S. 310 (1985), the Court held that the “no-interest” rule, which prevents recovery of interest from the United States absent a waiver of 

sovereign immunity, applies to fee awards. Therefore, an award against the United States 
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by calculating the lodestar in current dollars295 or by factoring in interest, 

usually at the prime rate,296 after the lodestar has been computed using 

historic rates.297 Courts should be careful, however, not to mix methods.298 When a delay is de minimis, a delay enhancement may not be 

necessary.299

The circuits are split on whether interest should be calculated from 

the date the trial court rules the party is entitled to fees or from the date 

the trial court quantifies the fee. Most circuits require interest calculation 

from the date of fee entitlement.300 The Third, Seventh, and Tenth Circuits calculate interest from the date the fee award is quantified.301

should generally not be enhanced for delayed payment. The no-interest rule also does not 

apply to suits against states. Jenkins, 491 U.S. at 280–82 & n.3.

295. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988) 

(expressing preference for current rates).

296. 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. GM Corp., 860 

F.2d 250, 255 (7th Cir. 1988) (courts should use prime rate).

297. See Walker v. HUD, 99 F.3d 761, 773 (5th Cir. 1996) (6% enhancement for 

delay approximating 2.96% interest compounded annually not abuse of discretion).

298. See, e.g., Gray ex rel. Alexander v. Bostic, 613 F.3d 1035 (11th Cir. 2010) (finding abuse of discretion when district court used current hourly rates to calculate lodestar 

amount, and also added to resulting amount another 15% to account for delay between 

time services were rendered and payment for services); Walker, 99 F.3d at 773) (noting 

court may use either unenhanced lodestar based on current rates or lodestar using historical rates plus 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).

299. Smith v. Freeman, 921 F.2d 1120, 1123 (10th Cir. 1990) (enhancement inappropriate where delay is de minimis and there is no showing that counsel’s hourly rate 

increased from the time action commenced).

300. See, e.g., Associated Gen. Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482 

(6th Cir. 2001); La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 332 & n.24 (5th Cir. 

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. 1991); Mathis v. Spears, 857 F.2d 749, 760 (Fed. Cir. 

1988).

301. See, e.g., Eaves v. Cnty. of Cape May, 239 F.3d 527 (3d Cir. 2001) (discussing 

circuit split); MidAmerica Fed. Sav. & Loan Ass’n v. Shearson/American Express, Inc., 
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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. § 1961.302

Courts also have discretion to award interim fees in order to compensate for a delay in payment.303

v. Risk

In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (Delaware Valley II),

304 the Supreme Court faced the question whether to grant 

a “contingency enhancement” to compensate the prevailing attorney for 

the risk of loss. In a plurality decision, the Court reversed the risk enhancement; but only four justices maintained that such enhancements 

are always inappropriate.305 Justice O’Connor, concurring in part and in 

the judgment, voted to reverse the enhancement, but maintained that 

enhancement for risk is sometimes appropriate.306 Justice Blackmun, dissenting, agreed that risk enhancements should be awarded in some cases, 

but differed on the circumstances that warrant them.307

In City of Burlington v. Dague,

308 the Supreme Court held that the risk 

of losing a case—or contingency of nonrecovery—is not a basis for an 

962 F.2d 1470, 1475 (10th Cir. 1992) (fees awarded as discovery sanction); Fleming v. 

Cnty. of Kane, 898 F.2d 553, 565 (7th Cir. 1990) (selecting date of quantification, without 

explanation). In Travelers Casualty & Surety Co. v. Insurance Co. of North America, 609 

F.3d 143 (3d Cir. 2010), a Third Circuit panel questioned the Eaves holding, saying “it 

makes sense that post-judgment interest on prejudgment interest would begin to run as 

soon as an order establishing the right to prejudgment interest is entered.” Id. at 174. 

Nonetheless, the court held that “our decision in Eaves . . . precludes us from following 

that logic here.” Id.

302. Corder v. Brown, 25 F.3d 833, 838 (9th Cir. 1994) (abuse of discretion to recalculate lodestar using current hourly rate; distinguishing Jenkins on grounds that sevenyear delay was much more extensive than two-year delay in that case).

303. See supra text accompanying notes 53–57.

304. 483 U.S. 711 (1987).

305. Id. (opinion of White, J., joined by Rehnquist, C.J., Powell and Scalia, JJ.).

306. Id. at 731–34 (O’Connor, J., concurring).

307. Id. at 735–55 (Blackmun, J., dissenting, joined by Brennan, Marshall, and Stevens, JJ.).

308. 505 U.S. 557 (1992). Dague 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).
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upward enhancement of attorney fee awards, thereby ostensibly resolving

any uncertainty created by Delaware Valley II.

The end result is that the Court has moved firmly in the direction of 

creating and enforcing a presumption that the lodestar calculation generally produces a fee award sufficient to induce attorneys to represent clients in meritorious cases.309 In the decades since Delaware Valley II and 

Dague, the Court has not approved an award of fees that includes an enhancement for risk.

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 noted that these 

factors are not bases for increasing fee rates in the private sector.310

5. Are there special considerations for awards to defendants?

When defendants request fee awards, the calculation is largely the same as 

that in plaintiff fee awards, but additional factors come into play. Denying or reducing fees is appropriate if the plaintiff is impecunious.311 The 

Seventh Circuit finds a reduction in order if the defendant fails to miti309. See Perdue v. Kenny A., 559 U.S. 542, 552 (2010); supra text accompanying 

notes 279–80.

310. Alberti v. Klevenhagen, 896 F.2d 927, 934 (5th Cir.), vacated on other grounds, 

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

311. See, e.g., Roth v. Green, 466 F.3d 1179, 1194 (10th Cir. 2006) (ruling “the 

plaintiffs’ ability to pay was not a relevant factor in determining whether to award fees 

against them, but was a relevant factor for the district court to consider in determining 

the amount of the fee award”); Wolfe v. Perry, 412 F.3d 707, 724 (6th Cir. 2005) (same); 

Toliver v. Cnty. 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); 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); Munson v. Friske, 

754 F.2d 683, 697–98 (7th Cir. 1985); Charves v. W. 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).
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gate (for example, by moving for dismissal or summary judgment).312 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.313

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.”314 The courts of appeals, however, have established certain norms, and trial courts have innovated in a quest to establish fair and efficient procedures. Some of those innovations are discussed 

infra Part III and cross-referenced in this section.

Most courts that have addressed the issue agree “that there is no need 

for an evidentiary hearing in a[n] attorney’s fees case when a record has 

been fully developed through briefs, affidavits, and depositions.”315 Several courts have suggested that an evidentiary hearing is necessary to resolve material factual disputes in certain circumstances.316 The Eighth 

Circuit requires a hearing “[w]hen serious factual disputes surround an 

application for attorney’s fees.”317 Likewise, the D.C. Circuit requires a 

312. Leffler v. Meer, 936 F.2d 981, 987 (7th Cir. 1991).

313. See Hamilton v. Daley, 777 F.2d 1207, 1215–16 (7th Cir. 1985).

314. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

315. 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. Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th 

Cir. 1988); Blum v. Witco Chem. Corp., 829 F.2d 367, 377–78 (3d Cir. 1987); Bailey v. 

Heckler, 777 F.2d 1167, 1171 (6th Cir. 1985); Thomason v. Schweiker, 692 F.2d 333, 336 

(4th Cir. 1982); Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1330 

(D.C. Cir. 1982). See also Guadamuz v. Bowen, 859 F.2d 762 (9th Cir. 1988) (no right to 

hearing before Secretary of HHS concerning attorney fee awards in Social Security disability cases).

316. See Fed. R. Civ. P. 54(d)(2)(D), reproduced infra text accompanying note 343, 

which provides that district courts may adopt rules establishing special procedures for 

resolving fee-related disputes without resorting to an extensive evidentiary hearing.

317. Herrera v. Valentine, 653 F.2d 1220, 1233 (8th Cir. 1981).
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hearing when “material issues of fact that may substantially affect the size 

of the award remain in well-founded dispute.”318 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”319 and has suggested that a hearing is required when there are 

vigorous disputes over the elements constituting the fee award.320 The 

Fifth Circuit requires a hearing where there are “apparent factual disputes,”321 especially if such a hearing is requested.322 According to the 

Eleventh Circuit, a hearing is not necessary if disputes concern 

matters as to which the courts possess expertise. Such matters might include the reasonableness of the fee, the reasonableness of the hours and 

the significance of [the] outcome, . . . . But a hearing is necessary where 

there is a dispute of material historical fact such as whether or not a 

case could have been settled without litigation or whether attorneys 

were duplicating each other’s work . . . .

323

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.324 Numerous reversals have resulted because the district court failed to explain how it arrived at a fee award.325 The Eleventh 

Circuit has said 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.”326 The Sixth Cir318. Concerned Veterans, 675 F.2d at 1330.

319. Church of Scientology v. U.S. Postal Serv., 700 F.2d 486, 494 (9th Cir. 1983).

320. Id.

321. Henson v. Columbus Bank & Trust Co., 651 F.2d 320, 330 (5th Cir. 1981).

322. King v. McCord, 621 F.2d 205, 206 (5th Cir. 1980).

323. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988).

324. See United Steelworkers v. Phelps Dodge, 896 F.2d 403, 406 (9th Cir. 1990); 

Cunningham v. City of McKeesport, 807 F.2d 49, 52–53 (3d Cir. 1986); Gekas v. Attorney 

Registration & Disciplinary Comm’n, 793 F.2d 846, 851 (7th Cir. 1986).

325. 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. MGM, Inc., 886 F.2d 1545, 1556–57 (9th Cir. 1989); 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).

326. Norman, 836 F.2d at 1304 (citations omitted).
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cuit 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.”327

The First Circuit has said that the court is “expected to explicate the basis 

for its fee awards . . . . Although findings are necessary, however, they 

need not be ‘infinitely precise,’ . . . ‘deluged with details,’ or even ‘full[y]

articulat[ed].’”328

The courts of appeals have allowed considerable leeway in applying 

the need for an explanation. A general explanation for reducing fees by a 

percentage across the board appears to be sufficient, at least when the 

reductions are a small percentage of the lodestar request. In certain circumstances, most circuits permit a trial court to make deductions without identifying exactly 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.”329 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.330 The D.C. Circuit has 

endorsed this method,331 as have the Second and Ninth Circuits, in cases 

in which the fee petition was voluminous.332 The Third Circuit, which 

once stated that the district court must identify all disallowed hours,333

permitted a 10% pro rata reduction in compensable hours in light of 

“this complex and lengthy case . . . .”334 The Ninth Circuit emphasized 

that when a court makes a percentage reduction, it still must review the 

record, and it should explain concisely and clearly why it chose the par327. Glass v. Secretary of HHS, 822 F.2d 19, 22 (6th Cir. 1987).

328. Foley v. City of Lowell, 948 F.2d 10, 20 (1st Cir. 1991) (citations omitted).

329. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986).

330. Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986). See also In re Ohio-Sealy 

Mattress, 776 F.2d 646, 657–58 (7th Cir. 1985) (expressing reservations about percentage 

reduction where 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).

331. Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc).

332. 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).

333. In re Fine Paper Antitrust Litig., 751 F.2d 562 (3d Cir. 1984).

334. Daggett v. Kimmelman, 811 F.2d 793, 797–98 (3d Cir. 1987) (suggesting, however, that different result would have obtained if reduction had been significantly higher).
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ticular percentage, even though the court is not required to set forth an 

hour-by-hour analysis of a voluminous fee application.

335

The Seventh Circuit also approved a reduction arrived at by sampling 

billable time sheets. The district court had closely examined three or four 

particular tasks described in the fee application and applied its findings to 

the remaining hours claimed. The court informed counsel 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 award and the party seeking fees to suggest the 

individual tasks to be sampled.”336

The Third Circuit has held that the district court may not decrease a 

fee award based on factors not raised by the adverse party.337 A Fourth 

Circuit case appears to hold differently.338 The Seventh Circuit has stated 

that the plaintiff is entitled to be heard before the court makes a significant reduction in requested hours.339

The Ninth and Tenth Circuits have rejected the contention that the 

award of attorneys’ fees may be submitted to a jury.340 In a dispute relating to the reasonableness of a fee award, the Fifth Circuit held that there 

is no Seventh Amendment right to a jury trial on the reasonableness of 

fees, but it is permissible for a jury to determine fees.341 The Second Circuit ruled that the Seventh Amendment guarantees a right to a jury trial 

335. Gates, 987 F.2d at 1399–1402.

336. Evans v. City of Evanston, 941 F.2d 473, 477 (7th Cir. 1991) (reiterating approval of sampling method in In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572–73 (7th Cir. 

1992)). Sampling is discussed infra section III.A.3.

337. 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).

338. 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.”).

339. Smith v. Great Am. Rests., 969 F.2d 430, 440 (7th Cir. 1992).

340. 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).

341. Resolution Trust v. Marshall, 939 F.2d 274, 279 (5th Cir. 1991). The court did 

not say whether it is wholly within the court’s discretion to have a jury determine fees, or 

whether consent of the parties is required.
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to determine whether a contract provides that a party has a legal right to 

recover attorneys’ fees. However, once the jury decides that a party may 

recover attorneys’ fees under the contract, “the better practice is for the 

judge to determine the amount.”342

b. Rule 54 and local rules

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) 

and (D):

(C) Proceedings. Subject to Rule 23(h), the court must, on a party’s request, give an opportunity for adversary submissions on the motion in 

accordance with Rule 43(c) or 78. The court may decide issues of liability for fees before receiving submissions on the value of services. The 

court must find the facts and state its conclusions of law as provided in 

Rule 52(a).

(D) Special Procedures by Local Rule; Reference to a Master or a Magistrate Judge. By local rule, the court may establish special procedures to 

resolve fee-related issues without extensive evidentiary hearings. Also, 

the court may refer issues concerning the value of services to a special 

master under Rule 53 without regard to the limitations of Rule 

53(a)(1), and may refer a motion for attorney’s fees to a magistrate 

judge under Rule 72(b) as if it were a dispositive pretrial matter.343

Using the authority granted in Rule 54(d)(2)(D), a number of federal 

district courts have adopted local rules to facilitate the management of 

attorney fee petitions. The District of Maryland has adopted detailed 

guidelines to facilitate judicial action on matters that generally arise in 

fee-shifting cases, including the establishment of hourly rates related to 

attorney experience.344 These guidelines specify how time should be recorded and reported; require attorneys who intend to seek fees to provide 

quarterly statements of total hours to opposing counsel; require designation of a “lead attorney for each task”; limit compensation for more than 

342. McGuire v. Russell Miller, Inc., 1 F.3d 1306, 1315 n.2 (2d Cir. 1993).

343. 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.

344. See D. Md. Loc. R. 109.2 and Appendix B, Rules and Guidelines for Determining Attorneys’ Fees in Certain Cases (Feb. 2015 Supp.), http://www.mdd.uscourts.gov/

localrules/LocalRules.pdf, at 119–22. 
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one attorney per party for depositions, hearings, and conferences; limit

reimbursement for travel; and specify guidelines for hourly rates, based 

on levels of experience.345

Some district courts require the parties to meet and confer for the 

purpose of attempting to resolve any disputes about fees.346 The Northern 

District of Florida has an intricate set of provisions to encourage resolution of fee issues. First, court rules create a bifurcated procedure for determining eligibility for fees before requiring affidavits of fees and expenses.347 Then, if the parties do not settle, and the court rules that the 

moving party is entitled to fees, that party must file a detailed affidavit. 

Within fourteen days, the opposing party must file an acceptance or rejection of the amount claimed; if it files an objection, it must specify the 

objectionable hours with reasons, and must propose an amount it would 

be willing to pay.348 If a fee matter is not resolved by the prefiling procedures, the court rules authorize the district judge to appoint a special 

master to hear the dispute, with authority to prorate the special master’s 

fees, “taking into account the reasonableness of the parties’ respective 

positions concerning the amount of the attorneys’ fees.”349

Some district courts have created rules setting the time for filing fee 

petitions and outlining the content and format for such petitions. For 

example, the District of Maryland calls for a party to file a motion for fees 

within fourteen days of the entry of judgment; a supporting memorandum, however, is not due until thirty-five days after the motion or, in the 

event of an appeal from the judgment, within fourteen days of the issuance of the mandate.350 The Northern District of Florida calls for a motion to be filed “within the time specified in the scheduling order.”351

345. D. Md. Loc. Adm. R. 109.3. For example, the hourly rate guideline in the 2014 

amended rule for attorneys admitted to the bar for less than five years is $150–$225; for 

five to eight years, it is $165–$300; for nine to fourteen years, it is $225–$350; for fifteen to 

nineteen years, it is $275–$425; and for twenty years or more, it is $300–$475. The hourly 

rate guideline for paralegals and law clerks is $95–$150. Id.

346. See, e.g., N.D. Cal. Civ. R. 54-5(a). See also N.D. Ill. R. 54.3(d).

347. N.D. Fla. R. 54.1(d).

348. N.D. Fla. R. 54.1(E)(4).

349. N.D. Fla. R. 54.1(F).

350. D. Md. Loc. Adm. R. 109.2.

351. N.D. Fla. R. 54.1(A). The parties are required to pursue settlement before any 

motion is considered. N.D. Fla. R. 54.1(C).
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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 the appeal

In White v. New Hampshire Department of Employment Security,

352 the 

Supreme Court held that a request for attorneys’ fees is collateral to and 

separate from a decision on the merits.353 In Budinich v. Becton Dickinson 

& Co.,

354 the Court held that a request for attorneys’ fees does not prevent 

an otherwise final decision on the merits from becoming final for purposes of appeal.355 Thus, 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.

In Ray Haluch Gravel Co. v. Central Pension Fund,

356 a unanimous 

Supreme Court ratified the Budinich rule, and extended it to cases in 

which the fee request arises out of a contractual action as well as to cases 

in which fees were incurred prior to the commencement of the litigation. 

The Court underscored the importance of “the operational consistency 

and predictability stressed in Budinich.”357 In dicta, the Court explained 

how the Federal Rules of Civil Procedure provide the means to avoid 

piecemeal litigation: When the merits and fees might beneficially be appealed together, a party can move for attorneys’ fees under Rules 

54(d)(2) and 58(e); the court might order that the motion has the effect 

of a Rule 59(e) motion—that is, delaying the running of the time to file 

an appeal. Nevertheless, the default rule is that a judgment on the merits 

is final and appealable even when fee issues remain.

352. 455 U.S. 445 (1982).

353. Id. at 451–52.

354. 486 U.S. 196 (1988).

355. Id. at 202–03.

356. 134 S. Ct. 773 (2014).

357. Id. at 780.
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Ramsey v. Colonial Life Insurance Co. of America358 illustrates the 

Court’s suggestion for avoiding piecemeal litigation. In Ramsey, the Fifth 

Circuit distinguished the earlier 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 considered a Rule 

59(e) motion even where the request for reconsideration encompasses 

only that part of the judgment regarding attorney’s fees.”359

In contrast, the Tenth Circuit, in Utah Women’s Clinic, Inc. v.

Leavitt,

360 held that a Rule 59(e) motion to rescind an award of attorneys’ 

fees did not toll the time for appeal on the merits. It distinguished the 

case from Ramsey, which concerned a final disposition of the question of 

attorneys’ fees, that is, they were denied. Leavitt 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 fee issue remained “collateral 

to the merits judgment, particularly when the judgment contemplates 

significant further proceedings concerning costs and attorney’s fees.”361

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.362 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 Rule 39(c)—and not to 

attorneys’ fees. The D.C. Circuit has held to the contrary.363 The First, 

358. 12 F.3d 472 (5th Cir. 1994).

359. Id. at 478.

360. 75 F.3d 564 (10th Cir. 1995).

361. Id. at 567.

362. McDonald v. McCarthy, 966 F.2d 112, 114 (3d Cir. 1992); Kelley v. Metro. 

Cnty. Bd. of Educ., 773 F.2d 677, 682 n.5 (6th Cir. 1985) (en banc); 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).

363. 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 Rule 

39(d) time period).
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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.364 The Second Circuit has held to the contrary.365

As a result of Budinich, district courts generally view proceedings on 

the merits as procedurally distinct from post-judgment fee proceedings. 

For example, they often enter separate orders on the merits and on the 

fee request.366 When this occurs, a separate notice of appeal from the fee 

decision must be filed.367

The D.C., Federal, Second, Third, Fifth, Sixth, Seventh, Eighth, 

Tenth, and Eleventh Circuits have held that an order determining liability 

for fees but not establishing the amount is not a final, appealable order.368

364. McDonald v. McCarthy, 966 F.2d 112, 115–18 (3d Cir. 1992); 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 Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 

91 (1st Cir. 1969). 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 didn’t give court of appeals jurisdiction over fee award). Some of these cases were decided before the Supreme Court’s ruling 

in Marek v. Chesny, 473 U.S. 1 (1985), 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 Federal Rule of Civil Procedure 68 is silent about costs, whereas Federal Rule of Appellate Procedure 39(d) specifically enumerates costs but makes no mention of attorneys’ fees.

365. Toliver v. Cnty. of Sullivan, 957 F.2d 47 (2d Cir. 1992).

366. The Eighth Circuit, after reviewing a number of cases in which district courts 

entered separate orders on the merits and on attorneys’ fees, stated a preference for reviewing judgments that include a decision both on the merits and on attorney fee awards 

“[w]henever possible and practical.” Maristuen v. Nat’l States Ins. Co., 57 F.3d 673, 678 

(8th Cir. 1995).

367. 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).

368. Orenshteyn v. Citrix Sys., Inc., 691 F.3d 1356 (Fed. Cir. 2012); McCarter v. 

Ret. Plan for Dist. Managers of Am. Family Ins. Group, 540 F.3d 649 (7th Cir. 2008); 

Pridgen v. Andresen, 113 F.3d 391 (2d Cir. 1997); Gilda Marx, Inc. v. Wildwood Exercise, 

Inc., 85 F.3d 675 (D.C. Cir. 1996); Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. 1993); 

Echols v. Parker, 909 F.2d 795 (5th Cir. 1990); Phelps v. Washburn Univ. of Topeka, 807 

F.2d 153 (10th Cir. 1986); Gates v. Cent. Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 

1986); Morgan v. Union Metal, 757 F.2d 792 (6th Cir. 1985); Fort v. Roadway Express, 

746 F.2d 744 (11th Cir. 1984). See also Andrews v. Emps.’ Ret. Plan, 938 F.2d 1245, 1248 
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Interim fee awards—which are based on partial success of the litigation while other issues are pending resolution—generally are not appealable.369 However, the Fifth, Sixth, Seventh, and Ninth Circuits have held 

that interim fee awards are appealable under the collateral order doctrine 

if the defendant would otherwise have trouble recovering its money after 

the litigation.370 The D.C. Circuit declined to follow that approach, and

held that interim fee awards in pending class action litigation are not reviewable under the collateral order doctrine.371

2. Scope of review

The Supreme Court has held that when a statute grants discretion to 

award fees to the prevailing party in “exceptional cases,” district judges’ 

decisions to grant or deny fees are reviewable under a deferential “abuse 

of discretion” standard.

372 In addition, the Court has stated that district 

courts’ factual determinations with respect to a fee award should also be 

reviewed under an “abuse of discretion” standard.373

Most cases do not involve a statutory specification granting discretion to award fees, and other considerations may apply in defining the 

scope of review. The Supreme Court has not established a definitive 

scope of review. Courts of appeals have used a variety of approaches. The 

First Circuit reviews a fee award only for a mistake of law or an abuse of 

discretion.374 The Third Circuit has held that the legal standards used by 

(11th Cir. 1991) (reaffirming position but nevertheless entertaining appeal because, on

facts of case, it saw “no practical purpose in delaying resolution of the attorney’s fee 

issue”).

369. In re Diet Drugs Prods. Liab. Litig., 401 F.3d 143 (3d Cir. 2005); Shipes v. Trinity Indus., 883 F.2d 339 (5th Cir. 1989).

370. People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134 (7th Cir. 1991); 

Shipes v. Trinity Indus., 883 F.2d 339, 344–45 (5th Cir. 1989); Rosenfeld v. United States, 

859 F.2d 717, 721–22 (9th Cir. 1988); Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 

1988).

371. Petties v. District of Columbia, 227 F.3d 469 (D.C. Cir. 2000).

372. Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 134 S. Ct. 1744, 1747–49 

(2014) (interpreting § 285 of the Patent Act, 35 U.S.C. § 285).

373. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). However, such review requires 

a district court to “provide a concise but clear explanation of its reasons for the fee 

award.” Id.

374. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 336 (1st Cir. 1997).
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the district court are given plenary review.375 Similarly, the Seventh, 

Ninth, and Tenth Circuits have held 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.376

3. May the court of appeals calculate the award?

As a general rule, when a court of appeals finds a fee calculation to be erroneous, it remands the case for recalculation. However, on occasion the 

courts of appeals have decided the matter themselves to further the administration of justice. The Seventh Circuit has suggested that when a 

case has been in litigation for years, this shortcut is justifiable.377 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.378 The Fifth Circuit has 

agreed.379 The Eleventh Circuit has held that it has authority to calculate a 

fee without a remand unless an evidentiary hearing is required to clarify 

disputed facts.380

375. 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).

376. 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).

377. See Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988).

378. Lipsett v. Blanco, 975 F.2d 934, 943 (1st Cir. 1992).

379. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 326 (5th Cir. 1995) (modifying fee award without remand).

380. 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 fee award without remand, but not enough information on record to do so).

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II. Common Fund and Substantial Benefit

A. Common Fund

Four Supreme Court cases establish the perimeters of the common fund 

doctrine, which is rooted in the principle of preventing unjust enrichment. Unlike statutory fee shifting, the common fund doctrine is based 

on common-law judicial holdings that allowing direct beneficiaries of 

attorney services to not pay for those services would amount to unjust 

enrichment. In the 1881 case of Trustees v. Greenough,

381 a bondholder’s 

suit resulted in recovery of trust assets and realization of dividend payments to himself and other bondholders. The Court held that the bondholder should be reimbursed from the trust fund for his attorneys’ fees 

lest the other bondholders be unjustly enriched at his expense.382

A few years later, in Central Railroad & Banking Co. v. Pettus,

383 the 

Court expanded the common fund doctrine, holding that the plaintiff’s 

counsel in a class action not only had standing to seek reimbursement of 

fees 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 the 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. These cases

established that the common fund doctrine gives rise to two 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.384 (As 

in statutory fee-shifting cases, intervenors and their attorneys are also 

381. 105 U.S. 527 (1881).

382. 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. Inc., 557 F.2d 759, 770 (9th Cir. 1977).

383. 113 U.S. 116 (1885).

384. See Skelton v. GM 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.”).
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eligible for an award.385) 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 was further expanded in Sprague 

v. Ticonic National Bank,

386 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 professes to sue representatively or formally makes a fund 

available for others may, of course, be a relevant circumstance 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.387

Sprague notwithstanding, most common fund cases are class actions. 

In Boeing Co. v. Van Gemert,

388 the Supreme Court held that the unclaimed 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 

385. 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); infra text accompanying note 

396; 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”).

386. 307 U.S. 161 (1939).

387. Id. at 167.

388. 444 U.S. 472 (1980).
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69

class members beneficiaries for the purposes of the common fund 

doctrine.389

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) governs motions for attorney fee

awards in class actions. It does not mandate Rule 54(d)(2)(B)’s fourteenday filing requirement. Rather, Rule 23(h)(1) allows motions for attorneys’ fees “at a time the court sets.”

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.390 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 inapplicable because ‘there is literally no common fund’”; although “retroactive salary payments were paid 

out of several different appropriations, . . . . [t]he entire sum paid to federal employees is the ‘common fund’. . . to which the request for contribution is applicable . . . .”391

In some—perhaps most—class action settlements, there is no monetary fund that is created and that is under the control of the court. In389. Id. at 479–82. See also Williams v. MGM-Pathe Commc’ns 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). The latter two cases are discussed infra note 487.

390. See, e.g., Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d 206, 211 (2d Cir. 

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’”). The existence of a common fund is not a prerequisite to fee awards under the “substantial benefit” line of cases, discussed infra section II.C.

391. Nat’l Treasury Emps. Union v. Nixon, 521 F.2d 317, 320–21 (D.C. Cir. 1975).
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stead, the parties agree to create a claims process that will distribute 

money or other benefits to class members who submit claims.392 While 

courts generally treat these cases as if there is a common fund, the structure may affect the calculation of a fee award, particularly if some of the 

common “fund” reverts to the defendant if not claimed by class 

members.393

b. Did the plaintiffs or objecting class members bring about or enhance the 

fund, or create access to it?

In common fund cases, the court need not determine whether the plaintiffs or objecting class members achieved success sufficient to warrant a 

fee award: The fund itself signifies success. However, the plaintiff must 

establish that its suit was a “but for” cause of the fund (or at least ensured 

access to the fund). The case of Bandes v. Harlow & Jones394 illustrates this 

requirement. 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.395 The Second Circuit reversed this 

decision because Alvarez “did nothing to create the common fund.”396

The Second Circuit 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 in Bandes.

397

392. See infra section II.B.2.a.ii.

393. See infra text accompanying note 487.

394. 852 F.2d 661 (2d Cir. 1988).

395. Id. at 671.

396. Id.

397. See supra section II.A.
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71

The D.C. Circuit has stated that the common fund doctrine applies 

to actions that “create, enhance, preserve, or protect [a] fund.”398 The 

Ninth Circuit has said it applies if the plaintiff “created, discovered, increased or preserved” a fund.399 Such formulations are underinclusive. 

The common fund doctrine has also been applied in cases that resulted in 

a fund’s reapportionment400 or distribution.401 The doctrine may apply, 

then, if a lawsuit creates a fund or ensures access to funds.402

An applicant for fees need not be a plaintiff or a named class representative in the litigation. The central question is whether the actions of 

those seeking fees helped create or enhance the common fund. Objectors 

may satisfy that test. As the Second Circuit stated decades ago, in White v. 

Auerbach:

403

[I]t is well settled that objectors have a valuable and important role to 

perform in preventing collusive or otherwise unfavorable settlements, 

and that . . . they are entitled to an allowance as compensation for attorneys’ fees and expenses where a proper showing has been made that 

the settlement was improved as a result of their efforts.404

The objectors in White “made a prima facie showing that” they were 

entitled to fees for pointing out to the trial court that a management fee 

reduction in the original settlement was “illusory” and would provide no 

benefit to the class unless a “guaranteed minimum” reduction was in398. Abbott, Puller & Myers v. Peyser, 124 F.2d 524, 525 (D.C. Cir. 1941).

399. B.P. N. Am. Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975, 977 (9th Cir. 

1986).

400. See, e.g., United States v. ASCAP, 466 F.2d 917 (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).

401. 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. 1957).

402. See Sprague v. Ticonic, 307 U.S. 161, 166–67 (1939) (the fact that the fund 

wasn’t “formally established by litigation” is not decisive as long as the 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 estate for attorney 

whose work during protracted litigation enhanced estate; denying fees because “no fund 

was created by [their] efforts” and overlooking the fact that common fund doctrine can 

apply when litigation enhances existing fund).

403. 500 F.2d 822 (2d Cir. 1974).

404. Id. at 828.
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cluded.405 They also made clear that refunds to the class were “to be in 

addition to and not a credit against the reduction in management fees.”406

The Second Circuit found that, “[h]ad it not been for appellants’ objection, [the trial judge] would have had no occasion to consider this 

issue.”407

Often, fees for objectors arise from successful objections to fee requests.408 Courts have also awarded fees to objectors for benefits that defy 

easy conversion into dollars, such as improving “the distributional fairness of the class settlement”409 or “contribut[ing] to the adversarial nature 

of the proceedings.”410 But always, the court must balance the fee request 

against the enhanced benefit to the class. The Seventh Circuit articulated 

the limits of the common fund doctrine as applied to objectors this way: 

“The principles of restitution that authorize such a result also require, 

however, that the objectors produce an improvement in the settlement 

worth more than the fee they are seeking; otherwise they have rendered 

no benefit to the class.”411 And, of course, courts frequently use their discretion to deny objectors’ requests for fees.412

The fee applicant’s efforts need not involve an actual adjudication. 

Recovery can be appropriate when the common fund results from a formal settlement,413 or when the defendant takes remedial action that 

moots the case.414 In addition, a common fund recovery is arguably available from a fund created by a legislative or administrative action spurred 

405. Id. at 829.

406. Id.

407. Id.

408. See, e.g., Rodriguez v. Disner, 688 F.3d 645, 660 (9th Cir. 2012); Uselton v. 

Commercial Lovelace Motor Freight, Inc., 9 F.3d 849, 855 (10th Cir. 1993).

409. Lobur v. Parker, 378 F. App’x 63, 65 (2d Cir. 2010).

410. Elliott v. Sperry Rand Corp., 680 F.2d 1225, 1227 (8th Cir. 1982).

411. Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 288 (7th Cir. 2002).

412. See, e.g., McCoy v. UPS, 222 F. App’x 87 (2d Cir. 2007).

413. See, e.g., Kopet v. Esquire Realty, 523 F.2d 1005, 1008 (2d Cir. 1975).

414. 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 when defendant voluntarily takes action favorable to plaintiff that moots 

suit).
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73

by the plaintiff’s lawsuit.415 Finally, in one case, the Supreme Court held 

that an award was appropriate for defendants whose litigation efforts 

preserved a fund.416

c. Are there beneficiaries?

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,”417 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 defendants’ 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.”418

415. 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) (“claim for compensation for services rendered in sponsoring favorable legislation [does] not deserve prolonged discussion”). See also Harger v. U.S. Dep’t of Labor, No. CV065071RHW, 2007 WL 4246189, at 

*2 (E.D. Wash. Nov. 29, 2007) (holding Boeing applies only to common benefits created 

by litigation), aff’d in part on other grounds, 569 F.3d 898 (9th Cir. 2009). 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).

416. See Rude v. Buchhalter, 286 U.S. 451, 461 (1932).

417. Junker v. Crory, 650 F.2d 1349, 1363 (5th Cir. 1981).

418. Id. (quoting Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 396–97 (1970)).
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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.”419 The First Circuit rejected the 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.”420

In Sprague v. Ticonic National Bank,421 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.422

However, courts do not apply the common fund doctrine whenever a suit 

establishes a rule of law that later brings success to others.423 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 Second Circuit 

419. Catullo v. Metzner, 834 F.2d 1075, 1083 (1st Cir. 1987).

420. Id. at 1084. See also In re Chicago, 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).

421. 307 U.S. 161 (1939), discussed supra text accompanying notes 386–87.

422. 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 who had lost the case and that defendant’s duty under the 

previous decision was clear”).

423. 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, the Court cautioned, without elaboration, that fees for a 

suit benefiting others via stare decisis are limited to “exceptional cases” involving “dominating reasons of justice.” Sprague, 307 U.S. at 167.
II. Common Fund and Substantial Benefit

75

rejected the “novel assertion that attorneys who are victorious in one case 

may . . . claim fees from all subsequent litigants who might rely on or use 

it in one way or another.”424

The Ninth Circuit expanded the Sprague holding in one respect. In 

City of Klawock v. Gustafson,

425 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.426 However, in a similar case, the Second Circuit reached a different conclusion, denying 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.”427

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.”428 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.”429 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 deter424. 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 decision in subsequent suit).

425. 585 F.2d 428 (9th Cir. 1978).

426. Id. at 431.

427. Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112, 115 (2d Cir. 1978).

428. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 265 n.39 (1975).

429. Fase, 589 F.2d at 115.
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mine which beneficiary bears what costs, since residents and taxpayers 

pay varying amounts into the Fund.”430

As the Ninth Circuit case illustrates, courts generally reject claims for 

a common fund recovery out of the government treasury because the 

award would come at the expense of all taxpayers, not solely the beneficiaries of the lawsuit.

431

In Boeing Co. v. Van Gemert,

432 the Supreme Court said that 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.”433 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.434

However, not all class actions result in an “entire judgment fund,” as 

was the case in Boeing. A class action may establish liability 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 will be compensated by the 

individual claimants. When gray areas arise (in terms of the relief 

awarded and the relationship between class members and class counsel), 

courts may want to consider flexible application of the common fund 

doctrine to prevent unjust enrichment of some class members or inadequate compensation for class counsel. Of course, plaintiffs in non–class 

430. Southeast Legal Def. Group v. Adams, 657 F.2d 1118, 1123 (9th Cir. 1981).

431. See, e.g., Brzonkala v. Morrison, 272 F.3d 688, 692 (4th Cir. 2001); Linquist v. 

Bowen, 839 F.2d 1321, 1324–25 (8th Cir. 1988); In re Hill, 775 F.2d 1037, 1041 (9th Cir. 

1985); Grace v. Burger, 763 F.2d 457, 459 (D.C. Cir. 1985); Jordan v. Heckler, 744 F.2d 

1397, 1400 (10th Cir. 1984). Cf. Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984).

432. 444 U.S. 472 (1980). 

433. Id. at 479.

434. Id.
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77

actions that achieve a similar result are also eligible for common fund 

awards.

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

In Trustees v. Greenough,

435 the Supreme Court stated that the common 

fund must be “subjected to the control of the court.”436 In Boeing Co. v. 

Van Gemert,

437 the Court explained that this means the court must have 

“[j]urisdiction over the fund involved in the litigation.”438 This criterion 

is generally satisfied by jurisdiction over a party that controls the fund,439

usually the defendant. Therefore, absence of control, by itself, is rarely the 

basis for denial of a fee award.440 However, inclusion of a reversion clause 

in the document creating the fund raises questions about the value of the 

fund to the beneficiaries and whether the fund is subject to the court’s

control.

441

f. Does some other circumstance militate against an award?

Even when the above-mentioned conditions are met, situations in which 

a statute manifests the congressional intent of not sharing fees or in 

which beneficiaries of the plaintiff’s suit have adverse interests may render a fee award improper.

i. Congressional intent

In Bloomer v. Liberty Mutual Insurance,

442 the plaintiff, an injured longshoreman, successfully sued the ship owner. The plaintiff was required by 

435. 105 U.S. 527 (1881).

436. Id. at 536.

437. 444 U.S. 472 (1980).

438. Id. at 478.

439. See Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorney Fees 

§ 2.03, at 2-27 to 2-34.1 (1992) (discussing ways court may exercise control of fund).

440. 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 section II.C.1.d.

441. See infra text accompanying notes 487–89.

442. 445 U.S. 74 (1980).
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law to give part of his recovery to the stevedore to offset payments that 

the stevedore had made to him through workers’ compensation. He

sought to have the stevedore pay a portion of his attorneys’ fees, arguing

that his judgment against the ship owner 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/ship

owner triangle, and did not seem to contemplate a distribution of fees.

Similarly, the Seventh Circuit interpreted Supreme Court dictum443

as suggesting that common fund recoveries are inappropriate in Title VII 

and civil rights cases because such awards could “skew the incentives of 

plaintiffs’ lawyers toward damages rather than equitable remedies.”444 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.”445

While acknowledging that a statute governing a particular area can 

vitiate a common fund award if it manifests congressional intent not to 

share fees,446 the Second, Third, and Seventh Circuits have held that, absent such a showing of legislative intent, the fact that a fee-shifting statute 

applies to a particular case does not preclude recovery from a common 

fund.447 No courts have held to the contrary.

443. Blanchard v. Bergeron, 489 U.S. 87, 95 (1989) (under civil rights fee-shifting 

statute, damages shouldn’t be overemphasized and nonmonetary relief shouldn’t be 

shortchanged).

444. Evans v. City of Evanston, 941 F.2d 473, 479 (7th Cir. 1991).

445. Id.

446. 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”).

447. Id.; Skelton v. GM Corp., 860 F.2d 250, 255 (7th Cir. 1988); In re Fine Paper 

Antitrust Litig., 751 F.2d 562, 583 (3d Cir. 1984). See also infra text accompanying notes 

490 and 492–93 (discussing when recovery can be awarded pursuant to either a fee-shifting statute or a common fund doctrine).
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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. In the seminal case, Hobbs v. McLean,

448 the plaintiff obtained a 

judgment on behalf of a bankrupt. Believing that the recovered sum 

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:

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.449

The common fund doctrine was applied in United States v. Tobias.

450

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 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: “A party may not recover and try to monopolize a fund, but 

448. 117 U.S. 567 (1886).

449. Id. at 581–82.

450. 935 F.2d 666 (4th Cir. 1991).
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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.”451

In contrast, the Second Circuit 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.452 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 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.453 If 

lead counsel are appointed and do a disproportionate amount of the 

work, courts may waive this rule.454

2. Calculating the amount of an award

a. What method should be used?

i. Percentage versus lodestar

Courts have traditionally determined the amount of common fund fee 

awards by considering several factors, especially the size of the fund, and 

often what they think is a reasonable percentage of the fund. Courts and 

commentators call this approach the “percentage of fund method,” “percentage-of-fund method,” “percentage of recovery method,” “percentage 

of actual recovery method,” or, simply, the “percentage method.” In the 

early 1970s, however, courts began moving away from this practice and 

451. 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 ‘codefendants.’ No equitable doctrine will ignore the reality of the controversy by looking 

only to which side of the ‘v’ the disputants are on.” Id.

452. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990).

453. Tobias, 935 F.2d at 668 (citing cases).

454. Id. at 669.
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81

toward the lodestar method.455 Then in the 1980s, two developments 

sparked reconsideration of the lodestar in common fund cases. First, in 

Blum v. Stenson,

456 the Supreme Court (in a footnote) distinguished the 

calculation of fees under fee-shifting statutes from the calculation of fees 

under the “‘common fund doctrine,’ where a reasonable fee is based on a 

percentage of the fund bestowed on the class.”457 Second, a Third Circuit 

task force on attorneys’ fees recommended the percentage method in 

common fund cases.458

In large part as a result of the Blum dictum and the task force’s recommendations, the percentage method gained favor in common fund 

cases.459 The D.C. and Eleventh Circuits require the percentage method.460

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.461 The Seventh Circuit prefers the percentage method.462

455. 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.

456. 465 U.S. 886 (1984).

457. Id. at 900 n.16.

458. 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 Sullivan v. DB Investments, 667 F.3d 273, 

330 (3d Cir. 2011) (percentage-of-recovery “method ‘is generally favored in common

fund cases because it allows courts to award fees from the fund “in a manner that rewards

counsel for success and penalizes it for failure.”’” (quoting In re Rite Aid Corp. Sec. Litig.,

396 F.3d 294, 300 (3d Cir. 2005)); Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 

n.1 (3d Cir. 2000) (presenting seven factors for district courts to consider in setting fee 

award).

459. See Manual for Complex Litigation, Fourth § 14.121, at 187 (2004) (“After a 

period of experimentation with the lodestar method . . . , the vast majority of courts of 

appeals now permit or direct district courts to use the percentage-fee method in common-fund cases.”).

460. 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).

461. See Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49–50 (2d Cir. 2000); 

Johnston v. Comerica Mortg. 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. 1994); 

Rawlings v. Prudential-Bach Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993); Harman v. 
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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.463 The Ninth Circuit also said 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.”464 The Fifth Circuit has not explicitly adopted the 

percentage method, but it noted that “district courts in this Circuit regularly use the percentage method blended with a Johnson reasonableness 

check, and for some it is the ‘preferred method.’”465 It added, “the Fifth 

Circuit has never reversed a district court judge’s decision to use the percentage method, and none of our cases preclude its use.”466

The percentage method offers several advantages. First, it helps ensure that the fee award will simulate marketplace rates, since most common fund cases are handled on a contingency basis.

467 Second, compared 

with the lodestar method, the percentage method requires less detailed 

Lyphomed, 945 F.2d 969, 975 (7th Cir. 1991); Brown v. Phillips Petroleum, 838 F.2d 451 

(10th Cir. 1988).

462. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572–73 (7th Cir. 1992).

463. 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, 546 (9th Cir. 1990), the court upheld use of the lodestar 

because “we have no such division of claims.”

464. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir. 

1990). See Wash. Pub. Power Supply, 19 F.3d at 1296 (“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.’”) (quoting Florida 

v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990)).

465. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 643 (5th Cir. 

2012) (footnote omitted) (citing Johnson v. Ga. Highway Express, 488 F.2d 714 (5th Cir. 

1974), discussed supra note 150).

466. Id. at 644 (footnotes omitted). See also Strong v. BellSouth Telecomms. Inc., 

137 F.3d 844, 852–53 (5th Cir. 1998) (approving application of lodestar and stating that 

application of percentage approach could be restricted to percentage of claims actually 

made by class members and not total amount that might be claimed).

467. See Cont’l Ill., 962 F.2d at 572–73. See also Court Awarded Attorney Fees, supra

note 458, at 247.
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83

record-keeping by plaintiffs and consumes fewer court resources.468 Finally, unlike the lodestar method, the percentage method provides incentive to plaintiff’s counsel to settle the case early and avoid racking up 

litigation fees.

To protect against any temptation for counsel to “sell out” the class, 

judges need to exercise their “fiduciary” responsibility to police class settlements with a “high duty of care.”469 Defendants in common fund cases 

have no incentive to scrutinize fee requests, and individual fund beneficiaries generally lack sufficient incentive to do so.470 Thus, the court is 

saddled with the entire burden of reviewing submissions concerning 

hours expended and the hourly rate.471

The court may use a percentage for an initial determination, and adjust it upward or downward depending on various factors, including 

468. If using a percentage method, the court may nevertheless ask counsel to maintain time-keeping records in case switching to a lodestar calculation is later deemed desirable, or because these records may affect the percentage chosen or an adjustment to it. See

Court Awarded Attorney Fees, supra note 458, at 271–72. Many courts use an estimate of 

the lodestar as a check to determine whether the percentage method yields a reasonable 

fee, as shown by the estimated hourly rate, in a given case. See infra text accompanying 

notes 472–73.

469. Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 280 (7th Cir. 2002). See also

Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A Pocket 

Guide for Judges 12–13 (Federal Judicial Center, 3d ed. 2010). For an example of the application of fiduciary scrutiny to a class settlement, see In re Bluetooth Headset Products 

Liability Litigation, 654 F.3d 935 (9th Cir. 2011).

470. See, e.g., Cont’l Ill., 962 F.2d at 568. An exception is when 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.

471. 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. GM Corp., 860 F.2d 250, 253 (7th Cir. 1988); Fine Paper, 751 

F.2d at 583. See also Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518 (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.”). Weinberger, 925 F.2d at 520.
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those reflected in the lodestar (for example, hours expended and the 

market rate).472 This is sometimes referred to as a “cross-check” or “hybrid approach.”473 Upward and downward adjustments in common fund 

cases, whether to the lodestar or to a percentage of the fund, are discussed 

below.

ii. A reasonable percentage of what?

Authorities are divided on the proper approach to identifying the denominator to be used for calculating the percentage of common funds to 

be allocated to fees in cases that do not fall under the Private Securities 

Litigation Reform Act (PSLRA).

474 Some courts look at the value of the 

fund through the lens of possible claims based on the size of the class and 

assume that all class members will submit a claim.475 Other courts assess 

the value of the fund through the lens of claims submitted and paid, typically a much smaller number.

476

Another court applied an innovative approach to identifying the size 

of the fund in a multidistrict case. The court used the services of an expert with Ph.D., J.D., and C.P.A. credentials to analyze publicly available 

data and estimate—to a reasonable degree of scientific certainty—the 

472. Alternatively, the court may permit these factors to influence what percentage 

it chooses. The choice of percentage is discussed infra section II.B.2.c.

473. See Manual for Complex Litigation, Fourth § 14.121 n.504 (2004); Vaughn R. 

Walker & Ben Horwich, The Ethical Imperative of a Lodestar Cross-Check: Judicial Misgivings About “Reasonable Percentage” Fees in Common Fund Cases, 18 Geo. J. Legal 

Ethics 1453 (2005).

474. See infra section II.D.2, discussing PSLRA language restricting payment to a 

reasonable percentage of funds “actually paid to the class.”

475. See, e.g., Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1297 (11th Cir. 

1999) (observing total amount of fund is “not illusory or meaningless” because each class 

member’s award is based on a percentage of that amount). See also Sylvester v. Cigna 

Corp., 369 F. Supp. 2d 34, 52 (D. Me. 2005) (court reviewed its preliminary approval of a 

class settlement and concluded it had erroneously premised evaluation on a 100% claims 

rate from class members; noted that parties hadn’t informed it that “‘claims made’ settlements regularly yield response rates of 10 percent or less”; and then denied motion to 

approve settlement and denied, as moot, application for attorneys’ fees).

476. See, e.g., Strong v. Bellsouth Telecomms., Inc., 137 F.3d 844, 851–53 (5th Cir. 

1998) (upholding denial of request for additional attorneys’ fees based on actual awards 

to class members—totaling $1,718,594—rather than potential awards—“$64 million that 

plaintiffs’ counsel claimed it had obtained for the class”).
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85

collective amount of many thousands of individual settlements that had 

been or would be reached in the case.477

In Boeing Co. v. Van Gemert,

478 the Supreme Court upheld an award 

of attorneys’ fees in a class action in which the award was based on the 

total fund available to the class rather than the amount actually recovered. In Boeing, there was a “judgment that quantified Boeing’s liability.”479 In addition, the district court had “ordered Boeing to deposit the 

amount of the judgment into escrow at a commercial bank.”480 In that 

context, the Court held that “Boeing presently has no interest in any part 

of the fund,” and that calculation of a fee based on the total fund was an 

appropriate way to satisfy “each class member’s equitable obligation to 

share the expenses of litigation.”481 As Justice O’Connor noted in a later 

case: “We had no occasion in Boeing . . . to address whether there must at 

least be some rational connection between the fee award and the amount 

of the actual distribution to the class.”482 That issue remains open, and 

the circuits continue to be split regarding it.

The Second Circuit requires district courts to calculate the value of 

the common fund based on the fund in its entirety and not limit it to 

claims made against the fund.483 In its ruling in Masters v. Wilhelmina 

Model Agency, Inc.,

484 the court emphasized that “the entire fund created 

by the efforts of counsel presumably is ‘paid to the class,’ even if some of 

the funds are distributed under the Cy Pres Doctrine.”485 Like the defendant in Boeing, the defendant in Masters had no right to the unclaimed 

funds. A district court in the Second Circuit later distinguished Masters

on the grounds that it involved an “actual fund,” whereas the class action 

477. In re Avandia Mktg., Sales Practices & Prods. Liab. Litig., No. 07-md-01871, 

2012 WL 6923367, at *1 (E.D. Pa. Oct. 19, 2012).

478. 444 U.S. 472 (1980).

479. Id. at 481.

480. Id. at 476.

481. Id. at 481, 482.

482. Int’l Precious Metals Corp. v. Waters, 530 U.S. 1223, 1224 (2000) (statement 

of O’Connor, J., respecting denial of petition for writ of cert.).

483. Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423, 437 (2d Cir. 2007) 

(holding “allocation of fees by percentage should . . . be awarded on the basis of the total 

funds made available, whether claimed or not.”).

484. Id.

485. Id. at 437–38.
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settlement agreement “simply provides that Time Warner will satisfy 

those claims that are made by eligible class members, while retaining any 

unclaimed benefits.”486 Following that analysis to its logical conclusion, 

the court used the value of actual claims to guide the determination of a 

reasonable fee award.

The Eleventh and Ninth Circuits allow district courts to calculate the 

value of the common fund based on the fund in its entirety and not limit 

it to claims made against the fund even when the unclaimed funds revert 

to the defendant under the settlement terms.

487

In contrast, the Fifth Circuit affirmed a district court’s decision to 

deny a request for additional fees because the fees were not justified by 

the benefit to the class as shown by the number of actual claims made 

and paid.488 “In contrast to Boeing, in this settlement, no money was paid 

into escrow or any other account—in other words, no fund was established at all in this case.”489 Resolution of this central question awaits 

action by the Supreme Court or evolution of a consensus among the 

circuits.

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. A common fund award is not necessarily precluded in such a case. The Second and Seventh Circuits have 

suggested that the court has discretion to make either a fee-shifting award 

486. Parker v. Time Warner Entm’t Co., L.P., 631 F. Supp. 2d 242, 265 (E.D.N.Y. 

2009). See also In re TJX Cos. Retail Sec. Breach Litig., 584 F. Supp. 2d 395, 403 (D. Mass. 

2008) (distinguishing Masters and finding that class action settlement agreement at hand 

“creates no fund; it simply provides that TJX will pay claims on an as-made basis, subject 

to certain caps”).

487. Waters v. Int’l Precious Metals Corp., 190 F.3d 1291 (11th Cir. 1999) (holding 

district court didn’t abuse discretion by calculating attorneys’ fees as percentage of total 

settlement amount instead of actual claims where total “fund” not found to be illusory, 

despite clause providing that unexpended funds would revert to defendant); Williams v. 

MGM-Pathe Commc’ns Co., 129 F.3d 1026, 1027 (9th Cir. 1997) (per curiam) (holding 

district court didn’t abuse discretion in ruling that parties’ negotiation of settlement 

amount and attorney fee percentage based on entire settlement fund was reasonable, even 

though unclaimed portion of “common fund” would revert to defendants).

488. Strong v. Bellsouth Telecomms., Inc., 137 F.3d 844, 852–53 (5th Cir. 1998).

489. Id. at 852 (footnote omitted).
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87

against defendants or an award from the common fund, but it should not 

grant both.490

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 supra sections II.B.1.a–f, found a number of errors in the calculation of the

lodestar in a common fund case: The trial court erroneously 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.491

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 compensable in common fund cases.492 Such efforts do not serve the beneficiaries—indeed, if fees were compensated, they would deplete the 

common fund from which the beneficiaries draw.493

c. Choosing a percentage

If a court opts for the percentage method, it is faced with the challenging

task of finding an appropriate percentage.494 Empirical studies of attorney 

490. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990) (“Duplicative recovery is to be avoided.”); 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, supra note 458, at 255.

491. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 568–70 (7th Cir. 1992).

492. 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).

493. Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106.

494. This determination can be made at any stage of the litigation. See infra section 

III.A.4–5 (discussing implications of timing in connection with case management). For an 
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fee awards in common fund cases495 have motivated a substantial number 

of district courts to change their approach to finding a percentage that is 

appropriate.496 In the course of ruling on an attorney fee request, Judge 

Lee Rosenthal497 observed, “District courts increasingly consider empirical studies analyzing class-action-settlement fee awards to set the appropriate percentage benchmark or to test the reasonableness of a given 

benchmark.”498 The results of those empirical studies and the techniques 

courts have developed to apply them are discussed infra Part III.

How does the empirical approach interact with appellate standards

for awarding fees? Generally, trial judges have discretion to use whatever 

percentage arrangements may prove just or workable in a particular 

case.499 Courts of appeals use various approaches and typically have required district courts to examine multiple factors in determining fee 

extensive discussion of the factors involved in this task, see Manual for Complex Litigation, Fourth § 14.121 (2004).

495. See e.g., Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees and Expenses 

in Class Action Settlements: 1993–2008, 7 J. Empirical Legal Stud. 248 (2010) [hereinafter 

Eisenberg & Miller II]; Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements 

and Their Fee Awards, 7 J. Empirical Legal Stud. 811 (2010); Theodore Eisenberg & Geoffrey P. Miller, Attorney Fees in Class Action Settlements: An Empirical Study, 1 J. Empirical 

Legal Stud. 27 (2004) [hereinafter Eisenberg & Miller I]. See also Thomas E. Willging & 

Shannon R. Wheatman, An Empirical Examination of Attorneys’ Choice of Forum in 

Class Action Litigation 52 (Federal Judicial Center 2005); Stuart J. Logan, Jack Moshman 

& Beverly C. Moore, Jr., Attorney Fee Awards in Common Fund Class Actions, 24 Class 

Action Rep. 169 (2003); Denise N. Martin, et al., Recent Trends IV: What Explains Filings 

and Settlements in Shareholder Class Actions, 5 Stan. J.L. Bus. & Fin. 121 (1999); Thomas 

E. Willging, Laural L. Hooper & Robert J. Niemic, Empirical Study of Class Actions in the 

Federal Courts (Federal Judicial Center 1996).

496. See, e.g., In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 

851 F. Supp. 2d 1040, 1080–82 (S.D. Tex. 2012) (citing three empirical studies and several 

cases in which judges have used empirical studies).

497. Judge Rosenthal (S.D. Tex.) was Chair of the Judicial Conference’s Advisory 

Committee on Civil Rules during its revision of Federal Rule of Civil Procedure 23(h).

498. In re Heartland, 851 F. Supp. 2d at 1080–81 (footnotes omitted). See also id.

nn.36–37 (citing Eisenberg & Miller I, Eisenberg & Miller II, and Fitzpatrick, supra note 

495. 

499. For example, if a colossal fund is created, fees may be extracted from the interest earned rather than from the corpus of the fund. In re Agent Orange Prod. Liab. Litig., 

611 F. Supp. 1296 (E.D.N.Y. 1985) ($180 million fund case earned $15 million in interest, 

out of which $10 million was assigned as fees), modified, 818 F.2d 226 (2d Cir. 1987).
II. Common Fund and Substantial Benefit

89

awards. The Tenth and Fourth Circuits have said that the twelve Johnson

factors should be applied to determine the proper percentage.

500 The 

Eleventh Circuit agreed that the Johnson factors should be considered,

and it 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 settlement, and the economics involved in prosecuting a 

class action.”501 The Second, Third, Fifth, and Sixth Circuits also use multifactor tests with variations on the Johnson factors.502 The Seventh Circuit has developed what has come to be known as the “market mimicking 

approach”503 set out in In re Synthroid Marketing Litigation (Synthroid 

I).

504 That method directs courts to “do their best to award counsel the 

market price for legal services, in light of the risk of nonpayment and the 

normal rate of compensation in the market at the time.”505

District courts have considered the empirical studies against the 

backdrop of relevant appellate standards. For example, in In re Heartland

Payment Systems, Inc. Customer Data Security Breach Litigation,

506 Judge 

Rosenthal applied the Fifth Circuit’s Johnson factors while noting the relevance of the market-mimicking approach of courts in the Seventh Cir500. The Johnson factors are enumerated in supra note 150. Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988). The Tenth Circuit 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. In re

MRRM, P.A., 404 F.3d 863, 867–68 (4th Cir. 2005). The Fourth Circuit reviewed application of the Johnson factors adopted in Barber v. Kimbrell’s, Inc., 577 F.2d 216 (4th Cir. 

1978). 

501. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).

502. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 50 (2d Cir. 2000) (six factors, 

including “the requested fee in relation to the settlement”); Gunter v. Ridgewood Energy 

Corp., 223 F.3d 190, 195–97 (3d Cir. 2000) (seven factors, including size of fund created 

and awards in similar cases); In re Cahill, 428 F.3d 536, 540 (5th Cir. 2005) (combination 

of factors specified in § 330 of Bankruptcy Code and Johnson factors); Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974) (six factors, including value of 

benefit).

503. Nilsen v. York Cnty., 400 F. Supp. 2d 266, 278–79 (D. Me. 2005) (reviewing 

strengths and weaknesses of possible approaches to determining percentage of fund).

504. 264 F.3d 712 (7th Cir. 2001).

505. Id. at 718.

506. 851 F. Supp. 2d 1040 (S.D. Tex. 2012).
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cuit.

507 Some courts have used empirical data to identify a reasonable fee 

percentage and then applied multifactor tests to modify or confirm that 

percentage.508 Other courts appear to have used the empirical data as a 

principal mode of analysis, at least for the purpose of setting a benchmark.

509

The Seventh Circuit has directed district courts to look to “(1) actual 

fee agreements; (2) data from large common fund cases where the parties 

negotiated the fees privately; and (3) bids and results from class counsel 

auction cases for insight into the fee levels attorneys in competition were 

willing to accept.”510 Following that directive, district courts in the Sev507. Id. at 1082 (referencing Johnson factors and citing In re Lawnmower Engine 

Horsepower Mktg. & Sales Practices Litig., 733 F. Supp. 2d 997, 1014 (E.D. Wis. 2010)). 

See also Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830, 863–64 (E.D. La. 2007) 

(using empirical data to establish initial benchmark percentage; noting similarity to market-mimicking approach).

508. See, e.g., In re Puerto Rican Cabotage Antitrust Litig., 815 F. Supp. 2d 448, 

461–63 (D.P.R. 2011) (using empirical findings to narrow range, then applying other 

factors, including those from other cases within First Circuit); Kay Co. v. Equitable Prod. 

Co., 749 F. Supp. 2d 455, 467 (S.D. W. Va. 2010) (using empirical studies to find requested 25% rate to be similar to rates granted in other cases; awarding 20% of fund 

based on other factors); Braud v. Transp. Serv. Co. of Ill., No. 05-1898c/w05-1977, 2010 

U.S. Dist. LEXIS 93433, at *29, 30–31 (E.D. La. Aug. 17, 2010) (using empirical studies to 

set “initial benchmark” and then determining if “benchmark should be adjusted based on 

the particular circumstances of this case [and] . . . the other eleven Johnson factors”); In re 

ETS Praxis Principles of Learning & Teaching: Grades 7-12 Litig., 447 F. Supp. 2d 612, 

630–32 (E.D. La. 2006) (using empirical data to determine initial benchmark, then turning to Johnson factors); In re Relafin Antitrust Litig., 231 F.R.D. 52, 80–81 (D. Mass. 2005) 

(“welcom[ing] citation to these thorough and objective studies . . . ; but pursu[ing] this

nuanced analysis looking at the complexity, duration, and type of the case, and the skill 

and efficiency of the attorneys involved”).

509. See, e.g., Loudermilk Servs., Inc. v. Marathon Petroleum Co., 623 F. Supp. 2d 

713, 724 (S.D. W. Va. 2009) (reviewing multiple factors and stating, “Because the Eisenberg and Miller study was a far more comprehensive analysis of similar cases than this 

Court could hope to achieve in a reasonable time, the Court accepts their results as a 

benchmark on which to judge a reasonable fee in this case.” See Eisenberg & Miller I, supra note 495.).

510. Sutton v. Bernard, 504 F.3d 688, 692 n.2 (7th Cir. 2007) (citing In re Synthroid 

Mktg. Litig. (Synthroid I), 264 F.3d 712, 719–21 (7th Cir. 2001). See also In re Trans Union Corp. Privacy Litig., 629 F.3d 741, 744–45 (7th Cir. 2011) (noting special master “relied heavily” on studies of Eisenberg and Miller (see Eisenberg & Miller I, supra note 495), 

and reciting their findings with apparent approval; modifying district court’s order and 
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enth Circuit (and some outside the circuit) have used empirical data to 

implement the market-mimicking approach established by the court of 

appeals. In one case, the district court stated, “the best indicator of what 

the market would pay class counsel for their services is the data contained 

in a recently updated study.”511 Another district court in the Seventh Circuit used three empirical studies to conclude that the stipulated percentage of the common fund was unreasonable.512 Yet another district court 

cited two empirical studies and a contingent fee contract entered into 

with the named plaintiffs to justify reducing a fee request.513 Making explicit what other courts may be saying implicitly, a district court concluded that “[a]lthough the Court finds the empirical studies helpful, 

they do not replace the analysis required under Synthroid I.”514

Some courts award a lower percentage in what are sometimes referred to as “mega fund” cases, defined as cases with a common fund remandating application of percentage of fund recommended by special master to value of 

entire settlement).

511. In re Lawnmower, 733 F. Supp. at 1013 (citing Eisenberg & Miller II, supra note 

495). The court went on to say:

The tables included in this study are good indicators of what the market would pay for 

class counsel’s services because the tables show what attorneys have been paid in similar 

cases, and thus what class counsel could have expected when they decided to invest their 

resources in this case.

Id. at 1014.

512. In re AT&T Mobility Wireless Data Servs. Sales Tax Litig., 792 F. Supp. 2d 

1028, 1033–34 (N.D. Ill. 2011) (citing Eisenberg & Miller I, Eisenberg & Miller II, and 

Fitzpatrick, supra note 495). The court then examined other factors, including the “significant risk of nonpayment,” and concluded that a percentage fee above the mean and 

median percentages in the empirical studies was warranted. Id. at 1035–36.

513. Pavlik v. FDIC, No. 10C816, 2011 WL 5184445, at *1, 4 (N.D. Ill. Nov. 1, 

2011) (citing Eisenberg & Miller I and Fitzpatrick, supra note 495).

514. Heekin v. Anthem, Inc., No. 1:05-cv-01908, 2012 WL 5878032, at *2 (S.D. Ind. 

Nov. 20, 2012). For cases outside the Seventh Circuit that use empirical studies in applying the Seventh Circuit’s market-mimicking approach, see Turner v. Murphy Oil USA, 

Inc., 472 F. Supp. 2d 830, 862–63 (E.D. La. 2007) (Eisenberg & Miller I, supra note 495, 

“sheds light on at least two of the Johnson factors: the customary fee and awards in similar 

cases.”); In re Cabletron Sys., Inc. Sec. Litig., 239 F.R.D. 30, 40–45 (D.N.H. 2006) (examining empirical studies and auction cases to approximate market fee arrangement at outset of case).
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covery of more than $100 million.

515 In the multidistrict litigation dealing 

with product liability for injuries related to diet drugs, the district court 

referred to the litigation as a “super-mega-fund settlement,” that is, one 

exceeding $1 billion.516 The court examined the percentage of recovery 

for each of the nine settlements that met that criterion between 1998 and 

2007, and found that the range was “from 4.8% to 15%.”517 The diet drug 

litigation produced settlements and class benefits valued at $6.44 billion; 

the Third Circuit affirmed a fee award of $479.68 million, representing 

7.45% of the common fund and non-monetary benefits, “slightly below 

the average of 8.26% in the . . . super-mega-fund cases.”518

Theodore Eisenberg and Geoffrey P. Miller found a clear, but inverse,

relationship between the size of the fund and the percentage awarded: the 

larger the recovery, the smaller the percentage to be allocated to fees.519

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.520 The Third Circuit has held that use of a sliding 

515. See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283, 

340 (3d Cir. 1998) (remanding “for a more thorough examination and explication of the 

proper percentage to be awarded . . . in light of the magnitude of the recovery”; observing 

that “[t]he basis for this inverse relationship [between recovery and fees] is the belief that 

‘[i]n many instances the increase [in recovery] is merely a factor of the size of the class 

and has no direct relationship to the efforts of counsel.’” Id. at 339 (citations omitted). Cf. 

In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 303 (3d Cir. 2005) (“Prudential does not 

mandate application of the declining percentage sliding scale”).

516. In re Diet Drugs Prods. Liab. Litig., 553 F. Supp. 2d 442, 480 (E.D. Pa. 2008), 

aff’d, 582 F.3d 524 (3d Cir. 2009). See also In re Avandia Mktg., Sales Practices & Prods. 

Liab. Litig., No. 07-md-01871, 2012 WL 6923367, at *6, *7, *10 (E.D. Pa. Oct. 19, 2012) 

(super-mega-fund case reviewing assessments, fee awards, and multipliers in similar 

cases).

517. In re Diet Drugs, 553 F. Supp. 2d at 480. The mean percentage was 8.26% and 

the median was 6.5%. Id.

518. Id.

519. See Eisenberg & Miller II, supra note 495, at 262–64. See also Manual for Complex Litigation, Fourth § 14.121, at 188 (2004) (“Accordingly, in ‘mega-cases’ in which 

large settlements or awards serve as the basis for calculating a percentage, courts have 

often found considerably lower percentages of recovery to be appropriate.”).

520. See, e.g., In re Synthroid Mktg. Litig. (Synthroid II), 325 F.3d 974, 980 (3d Cir. 

2003) (awarding consumer class counsel 30% of first $10 million, 25% of next $10 million, 20% of next $10 million, and 10% of balance); In re Fidelity Bancorporation Sec. 
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93

scale is not mandatory,

521 and it even approved an award in which the 

percentage awarded for fees increased as the size of the common fund

increased.522

d. Should the fee be adjusted?

Regardless of the method used for calculating the initial fee, a court may

make an upward or downward adjustment based on the individual circumstances of a case.523 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 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.”524 The 

court implied that trial courts may adjust an award if attorneys would 

otherwise receive an unacceptably high portion of the common fund.525

Before the Supreme Court’s decision in City of Burlington v. Dague,

526

courts permitted risk enhancements in common fund cases.527 Circuits 

that have addressed the issue have held that Dague’s prohibition against 

Litig., 750 F. Supp. 160, 163 (D.N.J. 1990) (awarding 30% of first $10 million, 20% of 

next $10 million, and 10% of any fund beyond $20 million).

521. In re Rite Aid Corp. Sec. Litig., 396 F.3d 294, 303 (3d Cir. 2005) (“court did 

not abuse its discretion in declining to apply a ‘sliding scale’ reduction, nor in viewing the 

size of the fund to be a factor weighing in favor of approval of the fee request”).

522. In re AT & T Corp., 455 F.3d 160, 174 (3d Cir. 2006) (“sliding scale was fair 

and reasonable in light of the size of the settlement fund, the difficulty and length of the 

litigation, and the fact that all benefits accruing to class members are properly credited to 

the efforts of class counsel”).

523. See, e.g., Fischel v. Equitable Life Assur. Soc’y of U.S., 307 F.3d 997, 1007–08 

(9th Cir. 2002). 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. Id. at 1008.

524. Florida v. Dunne, 915 F.2d 542, 546 (9th Cir. 1990).

525. Id. (remanding for further fact-finding, and noting “[t]he fact that seventy-two 

percent of the common fund could be distributed in attorney’s fees and costs in this case 

is disturbing”). 

526. 505 U.S. 557 (1992).

527. See, e.g., Skelton v. GM Corp., 860 F.2d 250, 256–57 (7th Cir. 1988); Bebchick 

v. Wash. Metro. Area Transit Comm’n, 805 F.2d 396, 406–07 (D.C. Cir. 1986).
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risk enhancements does not apply in common fund cases.528 Some circuits that have not addressed the issue directly appear to permit risk enhancements of the lodestar in common fund cases by allowing discretion 

to apply percentage-of-fund calculations in relation to risks of loss and 

other factors.

529

e. The effect of a private fee agreement

A private agreement between plaintiff and 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 the lawyers’ work 

(or be unfair to the represented plaintiffs).

530 Thus, notwithstanding any 

private agreement, courts must independently determine a reasonable fee 

under the circumstances of the case.531

f. May plaintiffs be compensated for personal expenses?

In 1881, in Trustees v. Greenough,

532 the Supreme Court held that the 

plaintiff’s compensation from a common fund may not go beyond attorneys’ fees to include the private costs incurred in bringing the suit. The 

528. In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig.,

56 F.3d 295, 308 (1st Cir. 1995); 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 GM Corp. Pick-up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 

768, 822 (3d Cir. 1995). It later said that risk multipliers, if applied, “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, e.g., Nensel v. Peoples Heritage Fin. Group, 815 F. Supp. 26 (D. Me. 1993); 

Bolar Pharm. v. Gackenbach, 800 F. Supp. 1091 (E.D.N.Y. 1992).

529. See, e.g., In re Synthroid Mktg. Litig. (Synthroid II), 325 F.3d 974 (3d Cir. 2003) 

(examining risk undertaken by attorneys as measure of percentage fee court should 

award).

530. See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 126–27 (1885).

531. 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 post-settlement 

approval).

532. 105 U.S. 527 (1881).
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95

Court considered reimbursement for personal expenses “decidedly 

objectionable.”533

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.”534 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.”535 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 record suggests that no named plaintiff could 

otherwise have been recruited.

The Seventh Circuit did not mention Greenough’s seemingly categorical rejection of recovery for the plaintiff’s personal expenses, but its

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’s rationale. However, whereas the goal of feeshifting statutes is to encourage certain kinds of actions, the goal of the 

common fund doctrine is to prevent unjust enrichment.536

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 legal 

conclusions.”537 Furthermore, notice of the motion for fees must be “directed to class members in a reasonable manner.”538 In cases of settlement, the parties should submit motions for attorneys’ fees soon after 

533. Id. at 537.

534. Granada Invs. Inc. v. DWG Corp., 962 F.2d 1203, 1208 (6th Cir. 1992).

535. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992).

536. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980).

537. Fed. R. Civ. P. 23(h)(3).

538. Fed. R. Civ. P. 23(h)(1).
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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.539

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 fund” fee litigation, so 

the District Court in those cases has a special obligation to ensure that 

the fee is fair.540

Rule 23(h), adopted in 2003, allows for judicial discretion to hold a 

hearing in a class action context.541 The Third Circuit requires a hearing 

before a common fund award is made,542 and the D.C. and Second Circuits strongly encourage one.543 The First Circuit encourages such a hearing where large sums are at stake.544

539. See Manual for Complex Litigation, Fourth § 21.721 (2004).

540. Copeland v. Marshall, 641 F.2d 880, 905 n.57 (D.C. Cir. 1980) (citation 

omitted).

541. See infra section III.B for techniques judges use to avoid unnecessary hearings.

542. In re Fine Paper Antitrust Litig., 751 F.2d 562, 584 (3d Cir. 1984) (“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.”).

543. Copeland v. Marshall, 641 F.2d 880, 905 n.57 (D.C. Cir. 1980) (“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) (noting court should 

“allow a complete airing of all objection[s] to a petitioner’s fee claim”; when there are 

overt factual disputes, “an evidentiary hearing, complete with cross-examination, is imperative”; even absent such disputes, “an additional hearing” may be necessary to fill any 

“factual voids”).

544. 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 district court held one here, “wisely . . . considering the stakes”).
II. Common Fund and Substantial Benefit

97

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 notice and a reasonable opportunity to be 

heard.545

The Eleventh Circuit has said that the district court “should articulate 

specific reasons for selecting the percentage upon which the 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 . . . .”546 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.547 Failure to do so may be an abuse of 

discretion.548

Federal Rule of Civil Procedure 54 applies in the common fund context as well.

545. See, e.g., In re High Sulfur Content Gasoline Prod. Liab. Litig., 517 F.3d 220, 

231 (5th Cir. 2008) (vacating order allocating fees among attorneys, and finding appointment of fee committee that reported ex parte to court violated Rule 23(h) by failing 

to give notice and opportunity to be heard to attorneys not on fee committee); Nineteen

Appeals, 982 F.2d at 614 (reversing fee award in large-scale consolidated case in which 

lawyers from a steering committee were permitted to testify, examine witnesses, and offer 

oral argument at evidentiary hearing, but other lawyers representing individual clients 

were not).

546. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).

547. In re Fine Paper, 751 F.2d at 596.

548. 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).
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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.549 The discussion of the timing of appeals of statutory fee determinations550 also applies to appeals of common 

fund decisions.

b. Scope of review

Courts of appeals have said little about the scope of review in common 

fund cases. A district court’s factual determinations clearly must be reviewed deferentially.551 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.552

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 calculation553 seem to apply in common fund cases, particularly when

there have been multiple fee appeals.

554

C. Substantial Benefit

The substantial benefit (or the common benefit) doctrine extends the 

common fund doctrine to lawsuits that produce nonmonetary benefits. 

549. Trustees v. Greenough, 105 U.S. 527, 531 (1881); Boeing Co. v. Van Gemert, 

444 U.S. 472, 479 n.5 (1980); Nineteen Appeals, 982 F.2d at 609–10; Overseas Dev. Disc 

Corp. v. Sangamo Constr. Co., 840 F.2d 1319, 1324 (7th Cir. 1988).

550. See supra sections I.A.1 and I.C.1.

551. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987).

552. 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).

553. See supra section I.C.3.

554. See, e.g., In re Synthroid Mktg. Litig. (Synthroid II), 325 F.3d 974, 980 (3d Cir. 

2003) (calculating award rather than remanding for second time). See also In re Thirteen 

Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 312 (1st Cir. 

1995) (calculating award rather than remanding). 
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99

Application of the two doctrines is similar, but there are noteworthy 

differences.555

The Supreme Court has applied the substantial benefit doctrine in 

two seminal cases. Mills v. Electric Auto-Lite Co.556 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 it 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.557

Rather, fees may be awarded where litigation confers “a substantial benefit on the members of an ascertainable class, and where the court’s jurisdiction over the subject matter of the suit makes possible an award that 

will operate to spread the costs proportionately among them.”558

In Hall v. Cole,

559 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 of its members. . . . [B]y vindicating his own right [of free speech], the successful 

litigant dispel[led] the ‘chill’ cast upon the rights of others.”560 Extracting 

fees from “the union treasury simply shifts the costs of litigation to ‘the 

555. Although courts often used to treat the common fund doctrine and substantial 

benefit doctrine as one, the current trend is to treat them separately. Of course, if a suit 

produces both a common fund and a substantial nonmonetary benefit, both doctrines 

may be applicable.

556. 396 U.S. 375 (1970).

557. Id. at 392.

558. Id. at 393–94. The beneficiaries were the shareholders, and an award against 

the corporation spread costs proportionately among them.

559. 412 U.S. 1 (1973).

560. Id. at 8.
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class that has benefited from them and that would have had to pay them 

had it brought the suit.’”561

In Alyeska Pipeline Service Co. v. Wilderness Society,

562 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 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?563

As in statutory fee-shifting and common fund cases, intervenors are 

eligible for awards based on the substantial benefit doctrine.564 Indeed, 

substantial benefit awards in labor cases are often made to intervenors. 

These cases are brought under the Labor-Management Reporting and 

Disclosure Act of 1959,565 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 of Labor.

566 “[T]he intervenor usually confers a sub561. Id. at 9 (footnote omitted) (quoting Mills v. Elec. Auto-Lite Co., 396 U.S. 375, 

397 (1970)).

562. 421 U.S. 240 (1975).

563. Id. at 264–65 n.39. The Ninth Circuit 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); 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.

564. 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.

565. 29 U.S.C. §§ 401–531.

566. 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 district court to be either duplicative of Secretary of Labor’s work or ineffectual); Donovan v. Local Union 70, 661 F.2d 1199, 1203 (9th 

Cir. 1981) (award proper in light of Secretary of Labor’s counsel attesting to intervenor’s 
II. Common Fund and Substantial Benefit

101

stantial benefit on the union membership by identifying, investigating 

and presenting for the Secretary’s ultimate prosecution, evidence of union violations.”567

1. Determining whether an award is in order

a. Did the suit confer a substantial benefit?

In Mills, the Supreme Court agreed with the Minnesota Supreme Court 

that a “‘substantial benefit must be something more than technical in its 

consequence and . . . 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.’”568 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,569 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 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.570 Indeed, 

the Third Circuit rejected a claim that an award was improper because it 

secured free elections for only one district.571 The court held that, “to the 

extent that prosecution of LMRDA [Labor-Management Reporting and 

assistance, but “modest amount awarded strongly suggests it does not exceed the value of 

the intervenor’s contribution”).

567. CSEA Local Union 1000, 784 F.2d at 103.

568. Mills, 396 U.S. at 396 (quoting Bosch v. Meeker Coop. Light & Power Ass’n, 

101 N.W.2d 423 (Minn. 1960)).

569. Cf. Southerland v. Int’l Longshoremen’s Union, 845 F.2d 796, 800–01 (9th Cir. 

1987) (equating substantial benefit with “valuable service”)

570. See, e.g., Zamora v. Local 11, 817 F.2d 566, 571 (9th Cir. 1987) (where suit 

forced union to provide Spanish translation at meetings, defendant argued fee award was 

improper because most members did not benefit; court disagreed because suit “benefits 

the entire membership, including English-speaking members, by facilitating discussion 

and participation at the monthly meetings”).

571. Brennan v. United Steelworkers of Am., 554 F.2d 586, 605 (3d Cir. 1977).
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Disclosure Act of 1959] violations supports union democracy, such activity confers direct and substantial benefit upon the entire union 

membership.”572

The Fifth Circuit suggested, in dictum, that the benefit cannot consist 

solely of the likelihood that the defendant will change its practices to prevent future liability.573 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: “[W]e do not 

find such incentive an insubstantial benefit. Substantiality does not rest 

on compulsory reform or injunctive relief.”574

As a general matter, the substantial benefit need not be achieved by a 

formal judgment.575 For example, a suit may confer a substantial benefit if 

a settlement is reached576 or if the defendant takes action that moots the 

case.577 In the latter situation, the Third and Ninth Circuits required the 

plaintiff to demonstrate that its complaint was “meritorious.”578

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 “plaintiffs’ attorneys’ fees for work undertaken 

in obtaining and enforcing the preliminary injunction . . . did create a 

572. 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”).

573. 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.”). 

574. Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir. 1986).

575. See Ramey v. Cincinnati Enquirer, Inc., 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.”).

576. See, e.g., Koppel v. Wien, 743 F.2d 129, 135 (2d Cir. 1984).

577. See, e.g., Lewis v. Anderson, 692 F.2d 1267, 1270 (9th Cir. 1982); Ramey, 508 

F.2d at 1196.

578. Lewis, 692 F.2d at 1270–71; Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir. 

1970).
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‘common benefit’ for all of the union members: it ensured free and democratic elections of candidates for union office.”579 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 its case on the merits.580 The 

Eleventh Circuit found the award inappropriate because the plaintiff’s 

success procured no meaningful or lasting benefit for the union 

members.581

The Ninth Circuit held that fees are inappropriate for a labor union 

defendant that succeeds in defending a suit.582 Such an award would shift 

costs away from the beneficiaries and onto the opposing party—this is 

not the rationale in substantial benefit cases. Applying the same reasoning in a non-labor case, the Ninth Circuit held 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.”583

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.584 Fees are paid by the defendant, because it is 

579. Bliss v. Holmes, 867 F.2d 256, 258 (6th Cir. 1988).

580. 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 merits had yet to be reached).

581. 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.

582. Ackley v. W. Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992). The 

court gave a second rationale for denying fees against the plaintiff: a chilling effect on 

“‘union members in the exercise of their statutory right to sue the union.’” Id. at 1479 

(quoting Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983)).

583. Oldfield v. Athletic Congress, 779 F.2d 505, 509 (9th Cir. 1985).

584. 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, Inc., 535 F.2d 982, 995 (7th 
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the alter ego of the beneficiaries who would otherwise be unjustly enriched by the suit. If the defendant and the beneficiaries have no such 

identity of interests, an award against the defendant is improper because 

it would shift the costs unfairly.585

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 

below-market 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 disCir. 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 purpose of 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 Bailey, 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.

585. 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). 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 

suit, and where “the party ordered to pay fees is not a beneficiary . . . the common benefit 

exception does not apply”).
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105

bursed as the fee award and the funds taken in from the beneficiary 

class in whose name that award is made.586

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 benefited from the suit.587

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.588 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.589 Indeed, because of the required identity of interests shared by 

586. 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).

587. 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 who were not beneficiaries 

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); 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).

588. See, e.g., Linquist v. Bowen, 839 F.2d 1321, 1326 (8th Cir. 1988); In re Hill, 775 

F.2d 1037, 1041 (9th Cir. 1985); Grace v. Burger, 763 F.2d 457, 459 (D.C. Cir. 1985); Jordan v. Heckler, 744 F.2d 1397, 1400 (10th Cir. 1984).

589. See supra text accompanying note 431. In Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975)—discussed supra text accompanying notes 7 and 

562—the Supreme Court noted that in its substantial benefit and common fund cases, the 

beneficiaries were “small in number.” Id. at 265 n.39. But the number of beneficiaries 

does not appear to be a ground for denial of fees except in suits against the government. 
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the defendant and the beneficiaries, claims for fees based on the substantial benefit doctrine rarely 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 

damages award from a labor union, a fee award would shift the costs unfairly.590 As the Fifth Circuit observed, if the plaintiff who received a personal award were also awarded fees, he or she 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.

Receiving a personal award 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.591

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 

class . . . is incremental and relatively intangible.”592 The Tenth Circuit 

agreed.593

Courts have awarded fees based on the substantial benefit doctrine 

even though the plaintiff recovered damages, without discussing the disSee, e.g., Brennan v. United Steelworkers of Am., 554 F.2d 586, 606 (3d Cir. 1977), discussed supra text accompanying notes 571–72 (rejecting contention that an award was 

inappropriate because there were too many beneficiaries).

590. 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).

591. Shimman v. Int’l Union of Operating Eng’rs, 744 F.2d 1226, 1235 (5th Cir. 

1984) (en banc) (citations omitted).

592. Am. Ass’n of Marriage v. Brown, 593 F.2d 1365, 1369 (D.C. Cir. 1979).

593. Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d 1480, 

1484–85 (10th Cir. 1993).
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107

proportionality issue.594 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.595 Second, it does not apply if the plaintiff receives 

damages and an injunction that directly benefits the other union members.596 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.597

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

The requirement in common fund cases that the court have jurisdiction 

over the fund is generally met because the court has jurisdiction over the 

defendant who controls the fund.598 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 Sixth Circuit 

held that the district court lacked jurisdiction to award fees against the 

594. See, e.g., Bise v. Int’l Bhd. of Elec. Workers, 618 F.2d 1299 (9th Cir. 1979); Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d Cir. 1979); Emmanuel v. Omaha Carpenters Dist. Council, 560 F.2d 382 (8th Cir. 1977); McDonald v. 

Oliver, 525 F.2d 1217 (5th Cir. 1976).

595. See Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir. 1986) (distinguishing 

Shimman from case in which damages award was ordered paid to union).

596. Shimman, 744 F.2d at 1235 nn.13, 14, could arguably be read to suggest that 

fees may be in order in such cases. 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).

597. 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 . . . .”). In addition, it is irrelevant that the 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).

598. See supra section II.B.1.e.
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union, 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.599

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.600 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 of the original proceeding and the district court’s jurisdiction rested on grounds independent of the fee 

request.”601

The plaintiffs could not have recovered anything from the property 

owners as part of the original suit because the property owners were not 

parties. In general, a court may not order fees paid by beneficiaries personally if they are not party to the litigation.602

599. Toth v. UAW, 743 F.2d 398, 406 (6th Cir. 1984) (citations omitted).

600. Sederquist v. Court, 861 F.2d 554, 557 (9th Cir. 1988) (substantial benefit doctrine not part of 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).

601. Id.

602. 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).
II. Common Fund and Substantial Benefit

109

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.603

2. Method for determining amount of award

The lodestar is generally used to determine the amount of fees in substantial benefit cases.604 The kinds of adjustments to the lodestar permitted in cases under the fee-shifting statutes may be made in substantial 

benefit cases as well.605 In addition, the Sixth Circuit has said that an 

award may be adjusted upward or downward to reflect the extent of the 

benefit conferred.606

In substantial benefit cases, work preparing a fee request or litigating 

over fees is compensable; in common fund cases, it is not.607 In 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.608

3. Issues on appeal

The discussion on appellate issues in common fund cases609—specifically, 

the timing of appeals, the scope of review, and whether the court of ap603. Usery v. Local Union No. 639, Int’l Bhd. of Teamsters, 543 F.2d 369, 386–88 

(D.C. Cir. 1976).

604. 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 “percentage of the fund” approach not appropriate in substantial benefit cases, 

and that while Johnson factors must be considered, calculation needn’t be based on same 

approach as that used in statutory fee cases).

605. 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” substantial benefit doctrine).

606. Smillie v. Park Chem. Co., 710 F.2d 271, 275 (6th Cir. 1983).

607. 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).

608. See Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106; Pawlak, 713 F.2d at 

981.

609. See supra section II.B.3.
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peals 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 1995610

(PSLRA) to prevent frivolous and unmeritorious securities class actions.611 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.”612 “Total attorneys’ fees and expenses awarded by the court . . . 

shall not exceed a reasonable percentage of the amount of any damages 

. . . actually paid to the class.”613 The goal of the PSLRA was to replace 

lawyer-driven litigation with client-driven litigation.614

1. Selecting class counsel

Debate quickly arose as to whether trial judges had authority under the 

PSLRA to conduct an auction for selecting class counsel.615 The Third 

Circuit addressed the issue at the stage of selection of lead counsel, in In 

610. 15 U.S.C. § 78u-4.

611. PSLRA, S. Rep. No. 104-98, at 4 (1995). See also Manual for Complex Litigation, Fourth § 31.3 (2004).

612. 15 U.S.C. § 78u-4(a)(3)(B)(v).

613. Id. § 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).

614. 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”).

615. Selection of class counsel by an auction or bidding process was developed by 

Judge Vaughn Walker in In re Oracle 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 predated 

the PSLRA. See infra section III.A.4. See also Third Circuit Task Force Report on Selection of 

Class Counsel, 74 Temp. L. Rev. 689 (2001), for an in-depth 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).
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111

re Cendant Corp. Litigation;

616 the Ninth Circuit addressed the issue at the 

stage of selection of lead plaintiff, in In re Cavanaugh.

617

In Cendant Corp., the Third Circuit ruled that selecting lead counsel 

by competitive bidding is generally not permitted under the PSLRA.618

The district court had declined to accept the lead plaintiffs’ choices for 

lead counsel and concomitant retainer agreements. It conducted an auction to establish reasonable attorneys’ fees through market simulation.619

The Third Circuit vacated the award of attorneys’ fees made pursuant to 

the auction terms.620 Acknowledging that the PSLRA renders plaintiff’s 

counsel selection “subject to the approval of the court,”621 the Third Circuit found that appointing counsel through auction was more than “approving” or “disapproving” the lead plaintiff’s choice.622

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 “approve” that 

choice. Because a court-ordered auction involves the court rather than 

the lead plaintiff choosing 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.623

616. 264 F.3d 201 (3d Cir. 2001).

617. 306 F.3d 726 (9th Cir. 2002).

618. Cendant Corp., 264 F.3d at 273. Cendant Corp. involved two actions: the nonPrides claims and the Prides claims. The Third Circuit addressed the auctioning issue in 

the non-Prides claims. For a discussion of selecting lead counsel by competitive bidding, 

see infra section III.A.4.

619. In re Cendant Corp. Litig., 182 F.R.D. 144, 150 (D.N.J. 1998). 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.

620. Cendant Corp., 264 F.3d at 201.

621. 15 U.S.C. § 78u-4(a)(3)(B)(v).

622. Cendant Corp., 264 F.3d at 274.

623. Id. at 273.
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Furthermore, the Third Circuit found that the “auction” model runs 

contrary to the PSLRA’s “lead plaintiff” model and to its legislative history.624 The PSLRA “evidences a strong presumption in favor of approving a properly-selected lead plaintiff’s decisions as to counsel selection 

and counsel retention.”625 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.”626 The Third Circuit gave a nonexhaustive list of questions to ask in making this determination;627 but

“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.”628

In In re Cavanaugh,

629 the Ninth Circuit also rejected conducting an 

auction to select class counsel and held that it was error to select the lead 

plaintiff according to how well an attorney fee arrangement was negotiated.630 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.631 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 plaintiff632 and expressed its disfavor with auctions for selecting class coun624. Id. at 273–74.

625. Id. at 276.

626. Id.

627. “[C]ourts 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.

628. Id. See also In re Lucent Techs., Inc., Sec. Litig., 194 F.R.D. 137, 156 (D.N.J. 

2000) (predating Cendant) (conducting sealed-bid auction to select class counsel, in part, 

because “[i]t seems unlikely that there has been . . . independent, arms-length negotiating 

between Lead Plaintiff and the proposed lead counsel.”).

629. 306 F.3d 726 (9th Cir. 2002).

630. Id. at 731–36.

631. In re Quintus Sec. Litig., 201 F.R.D. 475, 488 (N.D. Cal. 2001).

632. Cavanaugh, 306 F.3d at 739.
II. Common Fund and Substantial Benefit

113

sel.633 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)’s typicality and adequacy requirements.634 The court of appeals rejected the holding that “deficiencies in 

the group’s fee agreement” were evidence that the potential lead plaintiff 

was inadequate and the holding that the inadequacy allowed the district 

court to conduct an auction.635

The district court’s review of 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.636

The Third Circuit held the door open to selection of lead counsel 

through auctions in limited situations. The court noted that if the lead 

plaintiff’s choice of counsel and fee arrangements appeared unreasonable,

then the court should give the plaintiff a chance to renegotiate. If the 

plaintiff chose not to renegotiate a fairer arrangement, the court could 

designate the 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.637

633. Id. at 734 n.14.

634. Id. at 730. The Ninth Circuit held that the PSLRA did not change the standard 

for adequacy under Federal Rule of Civil Procedure 23(a). Id. at 736. The Fifth Circuit 

came to a different conclusion in Berger v. Compaq Computer Corp., 257 F.3d 475, 483 

(5th Cir. 2001), reh’g denied, 279 F.3d 313 (5th Cir. 2002).

635. Cavanaugh, 306 F.3d at 732.

636. Id. (footnote omitted).

637. In re Cendant Corp. Litig., 264 F.3d 201, 277 (3d Cir. 2001). District courts 

have selected lead counsel through an auction when they doubted the “adequacy” of the 

lead plaintiff. See, e.g., Order re Lead Plaintiff Selection & Class Counsel Selection 2, In re

Commtouch Software Ltd. Sec. Litig., No. 01-C-00719 (N.D. Cal. June 27, 2001) (ordering lead plaintiff to conduct auction under court-established procedures when the only 

choice for lead plaintiff had limited English skills and was therefore unable to exercise due 

diligence in selecting counsel).
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In Cendant Corp., the Third Circuit set forth guidelines for reviewing 

the “reasonableness” of an attorney fee award. The court stated, “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.”638 This presumption “may be rebutted by a prima facie 

showing that the (properly submitted) retaine[r] agreement fee is clearly 

excessive.”639 If the presumption were 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.”640

Some district courts have developed approaches for scrutinizing the 

adequacy of the lead plaintiff proposed by attorneys in PSLRA cases.641

638. Cendant Corp., 264 F.3d at 282.

639. Id. at 283. The Third Circuit said that in determining whether the retainer is 

excessive, 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):

(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.

Cendant Corp., 264 F.3d at 283. Factors 3 and 7 are less likely to be as meaningful and 

useful in PSLRA cases as they are in other common fund cases. Id. at 284. It also stated 

that a lodestar “cross-check” may be appropriate. Id.

640. Cendant Corp., 264 F.3d at 285.

641. See, e.g., In re Pfizer Inc. Sec. Litig., 233 F.R.D. 334, 337 (S.D.N.Y. 2005) (considering “each potential lead plaintiff individually, and not as artificially grouped by its 

attorneys”); In re Flight Safety Techs., Inc. Sec. Litig., 231 F.R.D. 124, 129–31 (D. Conn. 

2005) (rejecting lawyer-driven groups; evaluating unrelated investors on individual basis); 

In re Razorfish Inc. Sec. Litig., 143 F. Supp. 2d 304, 308 (S.D.N.Y. 2001) (rejecting group 

“cobbled together by cooperating counsel for the obvious purpose of creating a large 

enough grouping of investors to qualify as ‘lead plaintiff.’”). See also In re Gemstar-TV 

Guide Int’l, Inc. Sec. Litig., 209 F.R.D. 447, 451–52 (C.D. Cal. 2002) (listing district court 

cases in which the court refused to appoint groups of unrelated investors as lead 

plaintiffs).
II. Common Fund and Substantial Benefit

115

2. Determining a reasonable percentage of amounts actually paid 

to the class

The Fifth Circuit observed that “[p]art of the reason behind the nearuniversal adoption of the percentage method in securities cases is that the 

PSLRA contemplates such a calculation.”642 The PSLRA provides expressly that “[t]otal attorneys’ fees and expenses . . . shall not exceed a 

reasonable percentage of the amount of any damages and prejudgment 

interest actually paid to the class.”643

However, the PSLRA does not mandate a percentage-of-actualrecovery approach. In reaching this conclusion in Powers v. Eichen, the

Ninth Circuit reasoned that the PSLRA’s “primary purpose was to prevent fee awards under the lodestar method from taking up too great a 

percentage of the total recovery” and that the PSLRA “simply requires 

that the fees and expenses ultimately awarded be reasonable in relation to 

what the plaintiffs recovered.”644 Under that interpretation, a lodestar 

calculation with a percentage-of-actual-recovery cross-check would satisfy the statutory requirement, as would a percentage-of-actual-recovery 

calculation with a lodestar cross-check.645

The courts of appeals have not been called on to resolve disputes 

about the PSLRA language “actually paid to the class”646 perhaps because 

the terms are reasonably clear. Outside the PSLRA context, however, the

courts are split on whether the percentage-of-recovery calculation should 

start with the net value of the fund actually paid to class members who 

642. Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669 F.3d 632, 643 (5th Cir. 

2012) (holding award of 18% of settlement fund not abuse of discretion).

643. 15 U.S.C. § 78(u)-4(a)(6).

644. Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000) (The Ninth Circuit held 

that the district court has discretion to use either the lodestar or the percentage-of-fund 

method to calculate fee awards in PSLRA cases). Id. at 1256.

645. See, e.g., Lonardo v. Travelers Indem. Co., 706 F. Supp. 2d 766, 796–97 (N.D. 

Ohio 2010) (calculating fee by lodestar and cross-checking by percentage-of-fund 

method) (non-PSLRA case).

646. The Advisory Committee on Civil Rules commented that the PSLRA “explicitly makes [the result actually achieved for class members] a cap for a fee award. . . . For a 

percentage approach to fee measurement, results achieved is the basic starting point.” 

Fed. R. Civ. P. 23 Committee Notes to 2003 Amendments, subdivision (h) (2013 ed.). See 

also Barbara J. Rothstein & Thomas E. Willging, Managing Class Action Litigation: A 

Pocket Guide for Judges 33–35 (Federal Judicial Center, 3d ed. 2010).
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present claims or the gross value of the fund to the class as a whole without regard to the claims process.647 The plain language of the PSLRA suggests the former, but the issue has rarely surfaced even though the two 

approaches may yield enormous differences in fee awards.648 District 

courts often repeat the language of the PSLRA, including the “actually 

paid” term, but, like the courts of appeals, rarely seem to be called on to 

resolve a dispute about whether the percentage should be based on tangible payments to class members.649

647. See supra section II.B.2.a.ii.

648. See, e.g., Waters v. Int’l Precious Metals Corp., 190 F.3d 1291, 1295–96 (11th 

Cir. 1999) (estimated actual payment to class members of $6.48 million out of $40 million 

settlement).

649. See, e.g., Lonardo, 706 F. Supp. 2d at 798–99 (non-PSLRA case discussing split 

of authority, noting PSLRA language, and applying compromise position). See also, e.g., 

In re United Health Group, Inc. PSLRA Litig., 643 F. Supp. 2d 1094, 1104–06 (D. Minn. 

2009); In re Ashanti Goldfields Sec. Litig., No. CV-00-717, 2005 WL 3050284, at *1, *5 

(E.D.N.Y. Nov. 15, 2005); In re Global Crossing Sec. & ERISA Litig., 225 F.R.D. 436, 465 

(S.D.N.Y. 2004).
117

III. Techniques for Managing Attorneys’ Fees

Part III covers case-management techniques that judges use for directing

the attorney fee process. The techniques described herein are not exhaustive. Apart from presenting ideas for judges to consider, this discussion is 

intended to encourage innovation in the judiciary’s efforts to manage the 

attorney fee process.

Most of the ideas were gleaned from interviews with judges conducted in 1993, 2001, and 2013.650 If changes had occurred that might 

affect their views, interviewees from earlier editions of this monograph 

were given an opportunity to update their statements for this revision. 

Lawyers, computer specialists, and U.S. trustees were also interviewed for 

earlier editions.

Most of the time that judges spend on fees involves reviewing fee applications and conducting hearings. Part III sets out methods for performing each of these tasks; examines techniques for obtaining a pretrial 

estimate of anticipated fees, including the historic practice of selecting 

lead counsel through a competitive bidding process; and offers 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 attorney fee process. Determining the appropriate hourly rate can be difficult, and assessing the reasonableness of the hours claimed can be even 

more difficult. In common fund cases, determining the appropriate percentage of the fund to allocate to fees and expenses presents an additional 

challenge. A number of methods are available to make these determinations more manageable.

650. 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 Federal Rule of Civil Procedure 23(h) and accompanying 

Committee Note.
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1. Establishing presumptively reasonable hourly rates and “nolook” fees

The Committee Notes to Federal Rule of Civil Procedure 54(D) suggest 

that a district court “consider establishing a schedule reflecting customary fees or factors affecting fees within the community.”651 A few courts 

have created such schedules. For example, the local rules of the District of 

Maryland establish and periodically update “Guidelines Regarding 

Hourly Rates.”652 The rates are designed to “make the fee petition less 

onerous by narrowing the debate over the range of a reasonable hourly 

rate in many cases.”653

Along the same lines, most judges in the District of Columbia and 

some judges in other courts follow the Laffey matrix, named after a historic D.C. district court opinion.654 The United States Attorney’s Office 

for the District of Columbia annually updates the hourly rates and publishes a table under the name “Laffey matrix.”655 The Laffey guidelines, 

however, do not appear to have prevented disputes about the details of 

fee petitions. Because the guidelines are a one-size-fits-all model and are 

based on market rates for complex federal litigation,656 litigants sometimes argue successfully that discounts should be afforded defendants in 

cases involving routine law practice.657 And disputes about alternative 

651. Fed. R. Civ. P. 54(D), Committee Note (2013 ed.). The committee cites an 

implicit suggestion to that effect by Justice O’Connor, in Pennsylvania v. Delaware Valley 

Citizens’ Council, 483 U.S. 711, 733 (1987) (Delaware Valley II) (O’Connor, J., concurring) (“district courts and courts of appeals should treat a determination of how a particular market compensates for contingency as controlling future cases involving the same 

market”).

652. D. Md. Loc. R., Appendix B, Rules and Guidelines for Determining Attorneys’ 

Fees in Certain Cases § 3, at 122 (Feb. 2015 Supp.). 

653. Id. at n.6.

654. Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), aff'd in part and 

rev'd in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984). The Laffey matrix is discussed 

supra text accompanying notes 168–75.

655. Id. For a ten-year table showing the Laffey rates from 2003 to 2012, see 

http://www.justice.gov/usao/dc/divisions/civil_Laffey_matrix_2003-2012.pdf.

656. Covington v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995).

657. See, e.g., Sykes v. District of Columbia, 870 F. Supp. 2d 86, 96 (D.D.C. 2012) 

(awarding fees at hourly rate equal to three-quarters of Laffey matrix rate for routine administrative proceedings in Individuals with Disabilities Education Act case); Rooths v. 

District of Columbia, 802 F. Supp. 2d 56, 61–63 (D.D.C. 2011) (same).
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119

methods of updating the underlying market information continue to appear in case reports.

658

Despite such skirmishes at the borderlines, once courts establish clear 

and specific guidelines that lay out presumptive hourly rates, attorneys 

and litigants, for the most part, seem to accept the posted hourly rates,

and they fashion their fee petitions and opposing papers in accordance 

with them.

659 In effect, attorney and litigant acquiescence in the rates 

eliminates or reduces the likelihood of a dispute about a key element of a 

fee petition. In turn, acceptance of the presumptive rates renders the outcome significantly more predictable and hence amenable to settlement 

without judicial intervention. One judge in the District of Maryland reported that under their rules, he was called on to rule on an average of 

one disputed fee petition per year.660

In bankruptcy proceedings, in which judges are often called on to 

approve fees for relatively standard legal work, such as representation of a 

debtor in Chapter 7 or 13 cases, some courts have developed a presumptive “no-look” fee, also known as a “benchmark.”661 The no-look fee “is a 

flat, preset fee amount payable for basic and usually specified services 

provided by bankruptcy counsel. . . . [It] is presumed to be reasonable 

under 11 U.S.C. § 330(a)(3).”662 The Judicial Conference Committee on 

Administration of the Bankruptcy System reports that “[c]ourts have 

generally approved the no-look or presumptive fee in Chapter 13 

658. See, e.g., Sykes, 870 F. Supp. 2d at 94–95 (plaintiff argued for enhanced Laffey 

rate based on national legal services index, and defendant proposed its own D.C. Public 

Schools schedule of rates).

659. Telephone conference interview by Thomas Willging with Judges Catherine 

Blake, William Connelly, J. Frederick Motz, and Paul Grimm (all of the District of Maryland) (Mar. 19, 2013); telephone conference interview by Thomas Willging with Judges 

John Facciola and Alan Kay (both of the District of Columbia) (Mar. 18, 2013).

660. Telephone conference interview by Thomas Willging with Judges Catherine 

Blake, William Connelly, J. Frederick Motz, and Paul Grimm (all of the District of Maryland) (Mar. 19, 2013).

661. See Committee on the Administration of the Bankruptcy System, Judicial Conference of the United States, Case Management Manual for United States Bankruptcy 

Judges 732 (Federal Judicial Center, 2d ed. 2012) [hereinafter Bankruptcy Case Management Manual] (the Bankruptcy Case Management Manual is restricted to the federal 

judiciary).

662. Id.
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cases.”663 Judges generally permit counsel to opt out of the presumptive 

fee and file applications for actual services rendered, using a lodestar 

analysis.664

Despite their obvious efficiency, presumptive fees in bankruptcy 

cases have been criticized as breaching the congressional intent to compensate bankruptcy attorneys at the same level as non-bankruptcy attorneys.665 The Sixth Circuit ruled that a “normal and customary” fee could 

not supply the basis for a fee award: “At a minimum . . . the bankruptcy 

courts must expressly calculate the lodestar amount when determining 

reasonable attorney’s fees.”666

Other courts do not seem to follow the Sixth Circuit approach. Researchers have observed that the no-look fee is “[o]ften” adopted in “local rules, standing orders, or guidelines; sometimes, it is established in 

judicial opinions or, less formally, in letters from the court, or simply by 

local custom.”667

2. Determining the appropriate percentage of a fund to award

Many judges have used empirical studies of large databases of fee awards 

to assist them in determining the percentage of a common fund that 

might be appropriately awarded to attorneys who worked to create that 

fund.668 Judge Jack Weinstein found those studies useful because the researchers already conducted the survey of similar cases that he would 

otherwise have to conduct.669 Judge Lee Rosenthal, who documented her 

use of the empirical studies in the Heartland case,670 articulated a similar 

663. Id. (citing cases).

664. See id. at 733, 736.

665. See id. at 734–35.

666. In re Boddy, 950 F.3d 334, 338 (6th Cir. 1991).

667. Bankruptcy Case Management Manual, supra note 661, at 732.

668. See supra section II.B.2.c.

669. Telephone interview by Thomas Willging with Judge Jack B. Weinstein 

(E.D.N.Y.) (Mar. 13, 2013). For the type of survey a district judge might have to conduct 

in a super-mega-case, see In re Avandia Marketing, Sales Practices & Products Liability 

Litigation, No. 07-md-01871, 2012 WL 6923367, at *6, *7, *10 (E.D. Pa. Oct. 19, 2012); 

supra text accompanying notes 477 and 516.

670. In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. 

Supp. 2d 1040, 1080–82 (S.D. Tex. 2012), discussed supra text accompanying notes 496–

98, 506–07.
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concept: for a judge, using empirical fee information represents a positive 

exposure to an expanse of data. Examining systematic studies of a large 

set of cases gives the judge an opportunity to go beyond anecdote as well 

as greater confidence in assessing the accuracy of the information.671

The empirical studies referred to by Judges Rosenthal and Weinstein 

examined multiple factors that might affect a common fund recovery. 

Researchers created substantial databases of closed cases and used stateof-the-art statistical measures to sort out the factors that exerted the most 

impact on fee awards. Eisenberg and Miller found in 2004 (and confirmed in 2010): “The dominance of the client’s recovery as a determinant of the fee is nearly complete.”672 In other words, the larger the common fund, the larger the fee award. They also found a “scaling effect”—

like the effect courts had previously observed in “mega” cases673—“with 

fees constituting a lower percent of the client’s recovery as the client’s 

recovery increases.”674 Eisenberg and Miller found risk to be a factor that 

is “usually significant: fees as a percentage of the recovery tend to be 

higher in high-risk cases . . . and lower in low-risk cases.”675

Eisenberg and Miller organized and presented their results in a form 

that seems particularly useful to district judges: “A Lookup Table to 

Check on Fee Awards.”676 A judge can plug the value of the common 

fund recovery into the table and find the percentage fee award for similar 

recoveries. The values of those outcomes, in turn, represent a range of 

market values that judges found in those cases. Judge Rosenthal’s experience is illustrative: She used averages from Eisenberg and Miller and the

671. Telephone interview by Thomas Willging with Judge Lee H. Rosenthal (S.D. 

Tex.) (Mar. 1, 2013).

672. Eisenberg & Miller I, supra note 495, at 28. In their 2010 update, they concluded: “The relation between fee amount and class recovery has remained consistent 

over time.” Eisenberg & Miller II, supra note 495, at 253.

673. See supra text accompanying notes 515–22.

674. Eisenberg & Miller I, supra note 495, at 28. See also Eisenberg & Miller II, supra 

note 495, at 262–64 (finding “a substantial scaling effect existed in the 2003–2008 period, 

as well as in the earlier 1993–2002 period”).

675. Eisenberg & Miller I, supra note 495, at 77. In their 2010 study, the researchers 

confirmed this finding and concluded: “[C]ourts systematically reward risk.” Eisenberg & 

Miller II, supra note 495, at 265. See also Eisenberg & Miller I, supra note 495, at 277–78.

676. Eisenberg & Miller I, supra note 495, at 72–76.
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Fitzpatrick study677 to produce a percentage that “approximately reflects 

the prevailing market rate that both class members and class counsel 

could have expected when initiating the litigation.”678

3. Sampling

The law permits courts to award only “reasonable” fees, but examining 

every item in a fee petition can be enormously time-consuming. Fortunately, such close scrutiny is neither necessary nor required. Some judges 

test the reasonableness of the hours claimed without scrutinizing the entire petition: They “sample” parts of the petition and apply the findings 

to the entire petition.679 Sampling can be done randomly—for example, 

every tenth page or tenth day—or can be done by looking at a purposely 

selected activity.680

In Evans v. City of Evanston,

681 the Seventh Circuit approved this approach, starting from this premise: “As the district court correctly observed, a lawyer’s work habits, while not immutable, are likely to be consistent for the duration of a case litigated over the course of a few 

years.”682 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.683 In the decades since the Evans opin677. Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their 

Fee Awards, 7 J. Empirical Legal Stud. 811 (2010).

678. In re Heartland Payment Sys., Inc. Customer Data Sec. Breach Litig., 851 F. 

Supp. 2d 1040, 1082 (S.D. Tex. 2012).

679. 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 she 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).

680. When choosing a discrete activity to sample, Judge Charles E. Matheson (retired) favored 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).

681. 941 F.2d 473 (7th Cir. 1991).

682. Id. at 477.

683. 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 
III. Techniques for Managing Attorneys’ Fees

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ion, Judge Zagel has continued to use the process, mostly because it saves 

time. He has refined his approach by focusing on one or more key events 

that determine the outcome of the litigation, such as a motion for summary judgment, a motion to dismiss, or a Daubert hearing.684

4. Selecting lead counsel by competitive bidding

In the 1990s, Judge Vaughn Walker developed a method for awarding 

fees in common fund cases—selecting class counsel through competitive 

bidding. In a celebrated case,685 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.686 He reasoned that competitive 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.”687 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.”688

Judge Walker used the method in a number of securities cases.689 He 

did not necessarily appoint the lowest bidder as class counsel—quality 

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.

684. Telephone interview by Thomas Willging with Judge James B. Zagel (N.D. Ill.) 

(Mar. 13, 2013).

685. In re Oracle Sec. Litig., 131 F.R.D. 688 (N.D. Cal.), modified, 132 F.R.D. 538 

(N.D. Cal. 1990).

686. 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.

687. In re Oracle, 131 F.R.D. at 690.

688. In re Oracle, 132 F.R.D. at 547–48.

689. See, e.g., 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 Cal. 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).
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and experience had to be considered.690 Other judges have used competitive bidding in antitrust litigation with apparent success, but the most 

recent published case discussing this technique was in 2000.691

In 2001, the Third Circuit Task Force on the Selection of Class Counsel issued a report concluding that “[t]he traditional methods of selecting 

class counsel, with significant reliance on private ordering, are preferable 

to auctions in most class action cases.”692 Combined with court decisions 

that rejected the use of bidding in almost all securities litigation,693 it is 

fair to say that the trend has shifted away from competitive bidding.

However, the Third Circuit Task Force identified a limited set of 

cases for which bidding might be a viable option for managing fees in 

class action litigation:

The paradigmatic case in which an auction might be considered is one 

in which the defendants’ liability appears clear (often as the result of a 

governmental investigation or an admission of the defendants); the 

damages appear to be both very large and collectible (thus ensuring a 

significant number of competing bids); and the lead plaintiff is not a 

sophisticated litigant that has already retained counsel of its choice 

through a reasonable, arm’s-length process.694

Even in that limited context, the Third Circuit Task Force cautions:

It has yet to be established that the auction process will save judicial 

time and resources, given the dictates of Federal Rule of Civil Procedure 

23 and the emerging case law holding that the use of an auction ex ante 

does not relieve the court of its duty ex post to review the reasonableness of fees sought by class counsel.695

690. Telephone interview by Diane Sheehey with Judge Vaughn Walker (N.D. Cal.) 

(Apr. 21, 1993).

691. In re Auction Houses Antitrust Litig., 197 F.R.D. 71 (S.D.N.Y. 2000). See also

In re Amino Acid Lysine Antitrust Litig., 918 F. Supp. 1190 (N.D. Ill. 1996).

692. Third Circuit Task Force, Report on Selection of Class Counsel, 74 Temp. L. Rev. 

689, 704 (2001). Judge Walker strongly disagrees with that conclusion. See Vaughn R. 

Walker, Response: The Task Force Got It Wrong, 74 Temp. L. Rev. 783 (2001).

693. See supra section II.D.

694. Third Circuit Task Force, supra note 692, at 704.

695. Id. Shortly before the task force issued its report, the Third Circuit ruled that 

an auction that no one challenged on appeal nonetheless did not produce a fee percentage 

that was beyond appellate oversight. In re Cendant Corp. Prides Litig., 243 F.3d 722, 734–

35 (3d Cir. 2001) (calling for application of seven-factor test in non-PSLRA case in which 
III. Techniques for Managing Attorneys’ Fees

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A related technique that might amount to an alternative to competitive bidding can be found in an earlier Third Circuit Task Force recommendation, namely to negotiate a fee at the outset of a case that is likely 

to create a common fund.696 This concept, discussed in the next section,

appears to be how the competitive bidding process has evolved.697

5. Requiring a pretrial estimate of fees

Federal Rule of Civil Procedure 23 explicitly grants judges the power to 

order attorneys seeking appointment as class counsel “to propose terms 

for attorney’s fees and nontaxable costs.”698 The Advisory Committee on 

Civil Rules specifically noted that “attention to this subject from the 

outset may often be a productive technique.”699

A pretrial plan or budget helps a court ensure that counsel approached the case reasonably from the beginning so that the court will be 

less prone to make its assessment of reasonableness of fees according to 

how the case turned out.700 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.

This technique, however, can be difficult to apply because it does not 

fit neatly into the standard pretrial process. One judge indicated that it is 

an excellent idea, but most cases do not require it, and a judge often does 

court selected counsel by auction). See also In re Warfarin Sodium Antitrust Litig., 212 

F.R.D. 231, 262 (D. Del. 2002) (same).

696. Court Awarded Attorney Fees: Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 255 (1985) (recommending establishing a percentage at the

“earliest practicable moment”). 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 the 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. Id. at 272. Therefore, the court might 

require plaintiff’s counsel to maintain billing records.

697. E-mail from Judge Vaughn Walker (N.D. Cal.) (retired) to Tom Willging 

(Mar. 20, 2013, 09:25 a.m. PDT) (on file with author).

698. Fed. R. Civ. P. 23(g)(1)(C).

699. Id. Committee Notes on Rules—2003 Amendment, subdiv. (g), para. 1(C).

700. See supra text accompanying notes 207–08.
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not know at the outset that having an estimate of fees will be useful in the 

end.701 Another judge said that this outstanding idea simply does not occur to him or to most judges at the early stages of a case.702

6. Using computerized billing programs

Computerized billing programs enable judges to analyze fee requests 

rapidly and discern such indicia of reasonableness as the ratio of partner 

time to associate time as well as the time spent on activities such as discovery, research, intra-office conferences, and travel. A former U.S. bankruptcy trustee used a computerized billing program’s “sorting” capabilities to discover oddities, such as one attorney’s billing for more than 

twenty-four hours in a single day, and attorneys’ use of “rounding,”703

that is, billing a minimum amount of time for routine activities like 

phone calls, letters, and even court appearances.704

7. Requiring attorneys to categorize records and avoid 

inappropriate “block billing”

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 Continen701. Telephone interview by Thomas Willging with Judge Lee H. Rosenthal (S.D. 

Tex.) (Mar. 1, 2013).

702. Telephone interview by Thomas Willging with Judge John F. Grady (N.D. Ill.) 

(Mar. 7, 2013). For an excellent article combining the setting of ex ante rates with the 

challenges of performance-based review, see Matthew D. Klaiber, A Uniform Fee-Setting 

System for Calculating Court-Awarded Attorneys’ Fees: Combining Ex Ante Rates with a 

Multifactor Lodestar Method and a Performance-Based Mathematical Model, 66 Md. L. Rev. 

228 (2007), available at http://digitalcommons.law.umaryland.edu/mlr/vol66/iss1/7/. 

703. Telephone interview by Diane Sheehey with Marcy Tiffany, former U.S. trustee 

(Bankr. C.D. Cal.) (Apr. 6, 1993).

704. Connecting the Dots in Legal Bill Reviews Can Reveal Disturbing Pattern,

Legalbillreviewerblog (Mar. 5, 2013), http://legalbillreviewerblog.com. 
III. Techniques for Managing Attorneys’ Fees

127

tal Illinois Securities Litigation,

705 required attorneys to submit time records chronologically by activity rather than by attorney.706

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.707 The U.S. Bankruptcy Court for the Northern District of California has guidelines that encourage categorized time records and discourage “clumping,” or “block billing,” that is, grouping several discrete tasks 

into one time entry.708

In reviewing a fee petition in Duran v. Town of Cicero,

709 Judge John 

Grady differentiated between block billing that is appropriate—such as 

billing for a reasonably necessary set of fact investigation activities at the 

early stages of a case710—and block billing that lumps together broad categories of unspecified actions—such as legal research, telephone calls, 

and correspondence, without a clue as to why those activities might have 

been reasonable or necessary.711 Judge Grady asserts that the latter type of 

block billing is a plague that judges should not tolerate.712 Faced with 

“vague entries and block billing [that] make it impossible for us to fulfill 

our obligation to determine what was done, whether it was reasonably 

necessary, and whether a reasonable amount of time was spent on it,”713

Judge Grady reduced the fees awarded by 30 percent of the time not adequately documented.714

705. 572 F. Supp. 931 (N.D. Ill. 1983).

706. Id. at 934. See also Thomas E. Willging, Judicial Regulation of Attorneys’ Fees: 

Beginning the Process at Pretrial 30–32 (Federal Judicial Center 1984).

707. See infra notes 735–36 and accompanying text.

708. Guidelines for Compensation and Expense Reimbursement of Professional

and Trustees (Bankr. N.D. Cal.), available at www.canb.uscourts.gov/procedure/

guidelines-compensation-and-expense-reimbursement-professional-and-trustees, § I.14 

(“Clumping”).

709. No. 01-C-6858, 2012 WL 1279903, at *1 (N.D. Ill. Apr. 16, 2012) (opinion by

John F. Grady).

710. Id. at *4–5.

711. Id. at *5–7.

712. Telephone interview by Thomas Willging with Judge John F. Grady (N.D. Ill.) 

(Mar. 7, 2013).

713. Duran, 2012 WL 1279903, at *13.

714. Id. at *15. In support, Judge Grady cited Tomazzoli v. Sheedy, 804 F.2d 93, 98 

(7th Cir. 1986); Mallinson Montague v. Pocrnick, 224 F.3d 1224, 1234 (10th Cir. 2000); 
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8. Requiring defendants to submit records

Many judges agree with the statement of the late Judge 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.”715 Some judges and courts make this task easier, and reduce disputes, by requiring defense counsel to submit their own billing 

records. For example, the Northern District of Illinois has adopted a local 

rule that mandates the filing of the total amount of billing by the 

respondent as well as its time and work records, hourly rates, and 

expenses.716

The District of Maryland has a local rule that expressly recognizes the 

power of a judge or private mediator to order a party opposing a fee petition to submit billing records.717 Such 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 defendants’ counsel spent.718 On occasion, this method will uncover blatant 

contradictions, such as a defense attorney and a plaintiff’s attorney billing 

different numbers of 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.719

Judge John Grady finds his district’s local rule to be “absolutely effective” and “very helpful” in reducing claims from respondents that the 

and Role Models America, Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004). Duran, 

2012 WL 1279903, at *13.

715. Telephone interview by Diane Sheehey with Judge Edward Becker (3d Cir.) 

(May 25, 1993).

716. N.D. Ill. R. 54.3(d).

717. D. Md. Loc. R., Appendix B, Rules and Guidelines for Determining Attorneys’ 

Fees in Certain Cases § 1.d, at 120 (Feb. 2015 Supp.).

718. 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).

719. Telephone interview by Diane Sheehey with Judge James B. Zagel (N.D. Ill.) 

(Apr. 22, 1993).
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129

opposing party’s fees were excessive.720 Judges in the District of Maryland 

indicate that the threat of ordering the opponent to turn over records by 

itself suffices to eliminate claims that the opponent’s hours were 

unreasonable.721

B. Eliminating or Streamlining Fee Hearings

A number of judges have adopted measures that preclude the need for or 

at least streamline fee hearings. Federal Rule of Civil Procedure 23(h) 

gives the judge discretion to decide whether to hold a hearing at all.722

Rule 54(d)(2)(C) requires the judge to “give an opportunity for adversary 

submissions” on a motion for attorneys’ fees. Rule 54(d)(2)(D) expressly 

permits judges by local rule to “establish special procedures to resolve 

fee-related issues without extensive evidentiary hearings.” In the end, 

though, the court must find the facts and state its legal conclusions.

The Advisory Committee on Civil Rules notes that in attorney fee 

matters, a court “might provide for issuance of proposed findings by the 

court, which would be treated as accepted by the parties unless objected 

to within a specified time.”723 The next section illustrates an example of 

that approach.

1. Tentative ruling

To avoid unnecessary hearings, Judge Geraldine Mund issues a tentative 

ruling on fee petitions.724 Judge Mund’s administrative law clerk posts the 

tentative ruling in the tentative ruling field on “Ciao!,” the court’s calendaring page, along with a standard instruction that the debtor-in720. Telephone interview by Thomas Willging with Judge John F. Grady (N.D. Ill.) 

(Mar. 7, 2013)

721. Telephone conference interview by Thomas Willging with Judges Catherine 

Blake, William Connelly, J. Frederick Motz, and Paul Grimm (all of the District of Maryland) (Mar. 19, 2013).

722. Federal Rule of Bankruptcy Procedure 7023 applies Federal Rule of Civil Procedure 23 to adversary proceedings in bankruptcy.

723. Fed. R. Civ. P. 54(D), Committee Note (2013 ed.).

724. Telephone interview by Diane Sheehey with Judge Geraldine Mund (C.D. Cal.) 

(Apr. 2, 1993) (updated by mail Jan. 6, 2004, and by e-mails to Tom Willging, Mar. 11–

14, 2013).
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possession or trustee pass along the ruling to each legal professional involved in the case. Each tentative ruling also includes the following macro:

If you submit on this tentative ruling, no appearance is necessary. If you 

choose to appear and the final ruling is in conformance with the tentative ruling, no additional fees will be allowed for this appearance. If the 

trustee’s firm is representing the trustee, no attorney’s fees will be allowed for an appearance on this matter, as the trustee would be expected to be present as part of the trustee’s duties.

If counsel submits on the ruling, which almost always occurs, he or

she contacts the judge’s law clerk by telephone and does not appear. On 

the rare occasion that a party submits a late opposition or shows up at the 

hearing to object, Judge Mund initially determines whether the objection 

has any substance, and then may call on the applicant to participate by 

telephone. She then determines whether a more extensive hearing is required and, if so, she continues the matter.725 If there is no objection, the 

tentative ruling becomes final, and counsel submits an order on it. Judge 

Mund sees the benefits of the tentative ruling as reducing the need for 

people to come to court, managing fees by eliminating charges for unnecessary court appearances, and saving the court time.726

Although Judge Mund sits in bankruptcy court—and many bankruptcy courts now follow this practice—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.727

The Advisory Committee on Civil Rules may have had such a practice in 

mind when it wrote that a court “might call for matters to be presented 

725. E-mail from U.S. Bankruptcy Judge Geraldine Mund (C.D. Cal.) to Tom 

Willging (Mar. 12 & 14, 2013, 9:25 a.m. PDT) (on file with author).

726. Id.

727. 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).
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131

through affidavits.”728 Most judges follow that practice and decide fee 

petitions on a paper record without a hearing, evidentiary or otherwise.

3. Informal conference

An informal conference can either eliminate the need for or focus a fee 

hearing. Judge William Schwarzer saw great potential in holding an informal conference to narrow and define issues before a hearing.729

An informal conference without the judge might suffice to streamline 

the fee petition process. Judge John Grady has found that a local rule requiring the parties to meet and confer and produce a joint statement 

specifying objections “has largely eliminated the drudgery of going 

through lengthy fee petitions.”730 The Northern District of Illinois’ Local 

Rule 54.3 calls on the parties to confer prior to filing a fee motion, and to 

“attempt in good faith to agree on the amount of fees or related nontaxable expenses that should be awarded.”731 If no agreement is reached, the 

parties must exchange information about their billing records; specifically identify any objections to particular items; and file a joint statement 

summarizing the petitioner’s fee request, the amount the respondent 

deems to be reasonable, and a brief description of each specific unresolved dispute.732 Thus, the rule shifts the burden to the parties to define 

and narrow the issues before bringing any remaining disputes to the 

judge.

C. General Techniques

The preceding techniques for managing attorneys’ fees 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.

728. Fed. R. Civ. P. 54(D), Committee Note (2013 ed.).

729. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.), 

Washington, D.C. (Mar. 18, 1993).

730. Telephone interview by Thomas Willging with Judge John F. Grady (N.D. Ill.) 

(Mar. 7, 2013), referencing N.D. Ill. R. 54.3(d) & (e).

731. N.D. Ill. R. 54.3(d).

732. N.D. Ill. R. 54.3(d)(5) & (e).
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1. Setting a framework early in the case

Many judges stress that it is important, early in the case, to inform attorneys of what is expected from them regarding their fees. Some judges lay 

down specific instructions at the outset of the case.733 Ground rules can 

cover staffing at depositions, hearings, and trials; rates of compensation 

for various levels of legal work; communications among attorneys; and 

expenses.734 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 rules and guidelines for determining attorneys’ fees in 

civil rights and discrimination cases.735 A “mandatory rules” section directs attorneys to organize the fee application according to litigation 

phase (e.g., “case development,” “pleadings,” “depositions,” “motions 

practice,” and “attending trial”).736 A “Guidelines” section lists compensable and noncompensable time, specifying, for example, that “[o]nly 

one lawyer for each party shall be compensated for attending hearings.”737

Travel guidelines restrict compensation to “[u]p to two (2) hours of 

travel time . . . to and from a court appearance, deposition, witness interview, or similar proceedings that cannot be devoted to substantive 

work.”738 Most important, the guidelines set presumptively reasonable 

733. See, e.g., In re Cont’l Ill. Sec. Litig., 572 F. Supp. 931 (N.D. Ill. 1983). See also

Thomas E. Willging, Judicial Regulation of Attorneys’ Fees: Beginning the Process at Pretrial (Federal Judicial Center 1984), a study demonstrating the close relationship between 

lawyers’ billing practices and elements of Judge Grady’s pretrial order regulating attorneys’ fees in that case.

734. In re Cont’l Ill., 572 F. Supp. at 933–35.

735. See D. Md. Loc. R., Appendix B, Rules and Guidelines for Determining Attorneys’ Fees in Certain Cases, at 119–22 (Feb. 2015 Supp.), available at

http://www.mdd.uscourts.gov/localrules/LocalRules.pdf. See also supra text accompanying note 707.

736. See id. § 1.b, at 119–20.

737. Id. § 2.c., at 121(footnote omitted).

738. Id. § 2.e.ii, at 121.
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133

hourly rate ranges for attorneys, reducing or eliminating the need for individual findings on a potentially contentious matter.739

The adoption of local rules that govern fee petitions has a distinct 

advantage over actions taken by individual judges to manage fee petitions. Local rules speak for the court as an entity, and they are likely to 

have a broad and persuasive impact on the practice of local attorneys, as 

well as on the expectations of local attorneys and the judges in the district. In other words, local rules are more likely to change the legal culture 

than the rulings of any single judge.

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 in order 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 with the court reporter’s or deputy’s time records.740 A 

law clerk can pull a motion out of the court file to check if time billed for 

it is reasonable.741 Clerks can also check final petitions against interim 

submissions,

742 and can organize and categorize fee petitions according to 

739. Id. § 3, at 122. See also discussion of Laffey matrix, supra text accompanying 

notes 168–75; 654–58.

740. Telephone interview by Diane Sheehey with Judge William D. Browning (D. 

Ariz.) (Apr. 21, 1993).

741. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.), 

Washington, D.C. (Mar. 18, 1993).

742. Telephone interview by Diane Sheehey with Judge Norma Shapiro (E.D. Pa.) 

(May 12, 1993).
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activities, stages of litigation, level of attorney or paralegal, or any other 

relevant factor.

b. Magistrate judges

Federal Rule of Civil Procedure 54(D) contemplates referral of an attorney fee petition to a magistrate judge for a report and recommendation 

“as if it were a dispositive pretrial matter.” Practices vary throughout the 

courts. Many judges call on magistrate judges to handle fees in complex 

cases, but some judges prefer to use their own familiarity with the case to 

advantage and rule on fee petitions themselves. Judge Jack Weinstein says 

that he tends to decide fees for himself in lengthy multiparty cases in 

which he has taken charge from the outset.743 But even in those cases, he 

refers matters with computations that are time-consuming and tedious to 

magistrate judges. Often he includes guidelines, like a cap on the fee to be 

allowed or a guideline to share the benefit of an aggregate settlement with

the individual clients. Likewise, in shorter cases that settle and in which a 

magistrate judge may have handled discovery, Judge Weinstein might 

refer fee matters to a magistrate judge, with guidelines. And always in a 

fully tried complex case, Judge Weinstein handles the fee issues because 

he has seen the legal work played out before him.744

c. Special masters and alternative dispute resolution

Federal Rule of Civil Procedure 54(D) also contemplates that a court 

“refer issues concerning the value of services to a special master under 

Rule 53 without regard” for the general limits of that rule. 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 having a special master because it meant the 

fee application would move forward quickly.

745 The parties were happy to 

see that somebody had responsibility for the fee application—someone 

who was not going to be distracted by a docket, the Speedy Trial Act, or 

743. Telephone interview by Thomas Willging with Judge Jack B. Weinstein 

(E.D.N.Y.) (Mar. 13, 2013).

744. Id.

745. Telephone interview by Diane Sheehey with Prof. Laura B. Bartell (Wayne 

State Univ. L. Sch.) (Apr. 9, 1993) (updated by mail Jan. 5, 2004). At the time of the first 

interview, Bartell was a partner with Shearman & Sterling.
III. Techniques for Managing Attorneys’ Fees

135

anything else—and was just going to focus on this, decide it, write the 

opinion, and issue it so that they could get paid.

The Northern District of Florida Local Rules authorize a district 

judge to appoint a special master to hear any fee dispute.

746 To illustrate 

how the use or threat of using a special master might facilitate resolution 

of a dispute, consider the following case. In ordering the parties to meet 

and confer before filing a fee petition, a district judge noted that the disputes in an impending fee motion “‘appear to be largely the result of 

personal animosity between counsel.’”747 The judge signaled the court’s 

intent not to “expend its resources or those of a magistrate judge on resolving such disputes,” but instead to “appoint a special master, whose 

fees shall be paid by the parties, to resolve all future disputes over attorneys’ fees and costs that counsel cannot resolve independently.”748 Such 

an order provides a clear incentive for both parties to resolve the dispute.

Local Rule 54 (N.D. Fla.) adds incentives to avoid being seen as the unreasonable obstructionist.

Depending on the practices in their district, judges might consider 

alternative dispute resolution for especially complex fee disputes. By local 

rule, many courts direct the parties to meet and confer to try to agree on 

the amount of fees before filing a fee motion.749

d. Experts

Occasionally, a judge may need expert assistance in reviewing fee applications. For example, a judge who has been away from practice for a significant length of time might be less familiar with billing practices and 

rates. Judges also use experts and empirical studies to support selection of 

an appropriate percentage-of-fund to calculate a fee award.750 Judges often avail themselves of expert assistance, especially in bankruptcy court.751

746. N.D. Fla. R. 54.1(F). See supra text accompanying note 349.

747. Freitag v. Cal. Dep’t of Corr., No. C00-2275, 2012 WL 5389839, at *3 (N.D. 

Cal. Nov. 5, 2012).

748. Id.

749. See supra text accompanying notes 346–49 and 730.

750. See supra section II.B.2.c.

751. Chief 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). 
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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 attorney fee process. Second, Federal Rule of Civil Procedure 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, judges can assign lead counsel tasks 

that facilitate fee management. For example, lead counsel can supervise 

fee petitions submitted by all law firms.752

752. Telephone interview by Diane Sheehey with Judge Norma Shapiro (E.D. Pa.) 

(May 12, 1993) (updated by mail Dec. 29, 2003).
137

For Further Reference

Lynn A. Baker, Michael A. Perino & Charles Silver, Setting Attorneys’ Fees 

in Securities Class Actions: An Empirical Assessment, 66 Vand. L. Rev. 

1677 (2013).

Alba Conte, Attorney Fee Awards (3d ed. 2014).

Mary F. Derfner & Arthur D. Wolf, Court Awarded Attorney Fees (2013).

Bruce M. Price, “No Look” Attorneys’ Fees and the Attorneys Who Are 

Looking: An Empirical Analysis of Presumptively Approved Attorneys’ 

Fees in Ch. 13 Bankruptcies and a Proposal for Reform, 20 Am. Bankr. 

Inst. L. Rev. 291 (2012).

Charles A. Wright, Arthur Miller & Mary K. Kane, Federal Practice & 

Procedure §§ 2675–2680 (2014).

139

Table of Cases (Alphabetical)

Abbott, Puller & Myers v. Peyser, 124 F.2d 524 (D.C. Cir. 1941), n.398

Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), n.227

Ackerly Communications v. Somerville, 901 F.2d 170 (1st Cir. 1990), nn.158, 

180, 183

Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992), n.582

ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999), nn.158, 380

Act Now to Stop War and End Racism Coal. v. District of Columbia, 286 F.R.D. 

145 (D.D.C. 2012), n.169

Agent Orange Product Liability Litigation, In re, 818 F.2d 226 (2d Cir. 1987), 

nn.158, 332, 499, 551

Agent Orange Product Liability Litigation, In re, 611 F. Supp. 1296 (E.D.N.Y. 

1985), n.499

Aguinaga v. United Food & Commercial Workers International Union, 993 F.2d 

1480 (10th Cir. 1993), n.593

Alberti v. Klevenhagen, 896 F.2d 927, vacated on other grounds, 903 F.2d 352 (5th 

Cir. 1990), nn.188, 215, 290, 296, 310

Alberti v. Klevenhagen, 903 F.2d 352 (5th Cir. 1990), n.292

Alizadeh v. Safeway, 910 F.2d 234 (5th Cir. 1990), nn.281, 311

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), nn.2, 7–

8, 428, 562–63, 589

American Association of Marriage v. Brown, 593 F.2d 1365 (D.C. Cir. 1979), 

n.592

American Booksellers Association v. Virginia, 802 F.2d 691 (4th Cir. 1986), 

n.114

American Council of the Blind v. Romer, 962 F.2d 1501 (10th Cir. 1992), n.118

American Federation of Government Employees v. FLRA, 944 F.2d 922 (D.C. 

Cir. 1991), n.156

Amino Acid Lysine Antitrust Litigation, In re, 918 F. Supp. 1190 (N.D. Ill. 1996), 

n.691

Anderson v. AB Painting & Sandblasting, Inc., 578 F.3d 542 (7th Cir. 2009), 

n.263

Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir. 2000), n.50

Andrews v. Employees’ Retirement Plan, 938 F.2d 1245 (11th Cir. 1991), n.368

Andrews v. United States, 122 F.3d 1367 (11th Cir. 1997), nn.236, 264

Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 

(2006), n.141
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Art Janpol Volkswagen v. Fiat Motors of North America, 767 F.2d 690 (10th Cir. 

1985), n.367

Ashanti Goldfields Securities Litigation, In re, No. CV-00-717, 2005 WL 3050284 

(E.D.N.Y. Nov. 15, 2005), n.649

Ashley v. Atlantic Richfield, 794 F.2d 128 (3d Cir. 1986), n.122

Associated General Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482 (6th Cir. 

2001), n.300

Astrue v. Ratliff, 130 S. Ct. 2521 (2010), n.97

AT&T Corp., In re, 455 F.3d 160 (3d Cir. 2006), n.522

AT&T Mobility Wireless Data Services Sales Tax Litigation, In re, 792 F. Supp. 

2d 1028 (N.D. Ill. 2011), n.512

Auction Houses Antitrust Litigation, In re, 197 F.R.D. 71 (S.D.N.Y. 2000), n.691

Avandia Marketing, Sales Practices & Products Liability Litigation, In re, No. 07-

md-01871, 2012 WL 6923367 (E.D. Pa. Oct. 19, 2012), nn.477, 516, 669

Bailey v. Heckler, 777 F.2d 1167 (6th Cir. 1985), n.315

Bailey v. Meister Brau, 535 F.2d 982 (7th Cir. 1976), n.584

Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012), n.47

Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988), nn.385, 394–96

BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045 (11th Cir. 

1994), n.300

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

n.112

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), n.292

Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), n.157

Bebchick v. Washington Metropolitan Area Transit Commission, 805 F.2d 396 

(D.C. Cir. 1986), n.527

Begley v. Secretary of Health & Human Services, 966 F.2d 196 (6th Cir. 1992), 

n.220

Bell v. United Princeton Properties, 884 F.2d 713 (3d Cir. 1989), nn.337, 375

Benda v. Grand Lodge, 584 F.2d 308 (9th Cir. 1978), n.580

Benitez v. Collazo-Collazo, 888 F.2d 930 (1st Cir. 1989), n.100

Bennett v. Yoshina, 259 F.3d 1097 (9th Cir. 2001), n.43

Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001), nn.614, 634

Bigby v. Chicago, 927 F.2d 1426 (7th Cir. 1991), n.105

Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299 (9th Cir. 

1979), n.594

Bishop v. Committee on Professional Ethics, 686 F.2d 1278 (8th Cir. 1982), n.35

Black v. Ryder, 970 F.2d 1461 (6th Cir. 1992), n.590
Table of Cases (Alphabetical)

141

Black Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648 (3d Cir. 

1986), n.220

Blanchard v. Bergeron, 489 U.S. 87 (1989), nn.108, 146, 443

Blazy v. Tenet, 194 F.3d 90 (D.C. Cir. 1999), n.90

Bliss v. Holmes, 867 F.2d 256 (6th Cir. 1988), n.579

Bloomer v. Liberty Mutual Insurance, 445 U.S. 74 (1980), n.442

Bluetooth Headset Products Liability Litigation, In re, 654 F.3d 935 (9th Cir. 

2011), nn.130–31, 469

Blum v. Stenson, 465 U.S. 886 (1984), nn.155–56, 161, 218, 281, 284–86, 456–57

Blum v. Witco Chemical Corp., 829 F.2d 367 (3d Cir. 1987), n.315

Boddy, In re, 950 F.3d 334 (6th Cir. 1991), n.666

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), nn.388–89, 432–34, 437–38, 

478–81, 536, 549

Bolar Pharmaceuticals v. Gackenbach, 800 F. Supp. 1091 (E.D.N.Y. 1992), n.528

Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), n.531

B.P. North American Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975 (9th 

Cir. 1986), n.399

Bradley v. School Board of Richmond, 416 U.S. 696 (1974), nn.53, 55, 110

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), n.6

Braud v. Transport Service Co. of Illinois, No. 05-1898c/w05-1977, 2010 U.S.

Dist. LEXIS 93433 (E.D. La. Aug. 17, 2010), n.508

Brennan v. United Steelworkers of America, 554 F.2d 586 (3d Cir. 1977), 

nn.563–64, 571–72, 589

Brown v. General Motors, 722 F.2d 1009 (2d Cir. 1983), n.99

Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir. 1988), nn.461, 500, 548, 

552

Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n.192

Broyles v. Director, 974 F.2d 508 (4th Cir. 1992), nn.183, 338

Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997), n.79

Brzonkala v. Morrison, 272 F.3d 688 (4th Cir. 2001), n.431

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & 

Human Resources, 532 U.S. 598 (2001), nn.39–42, 44

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), nn.354–55

Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), n.160

Burka v. United States Department of Health & Human Services, 142 F.3d 1286 

(D.C. Cir. 1998), nn.87, 91

Burlington, City of, v. Dague, 505 U.S. 557 (1992), nn.308, 526, 528

Burroughs v. Board of Trustees, 542 F.2d 1128 (9th Cir. 1976), n.587
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Cabletron Systems, Inc. Securities Litigation, In re, 239 F.R.D. 30 (D.N.H. 2006), 

n.514

Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991), nn.200, 237

Cahill, In re, 428 F.3d 536 (5th Cir. 2005), n.502

California Micro Devices Securities Litigation, In re, 168 F.R.D. 257 (N.D. Cal. 

1996), n.689

Camden I Condominium Association v. Dunkle, 946 F.2d 768 (11th Cir. 1991), 

nn.460, 501, 546

Cange v. Stotler & Co., 913 F.2d 1204 (7th Cir. 1990), n.262

Cann v. Carpenters’ Pension Trust Fund for Northern California, 989 F.2d 313 

(9th Cir. 1993), nn.50, 308

Cantwell v. San Mateo, 631 F.2d 631 (9th Cir. 1980), nn.587, 602

Carey v. Crescenzi, 923 F.2d 18 (2d Cir. 1991), n.315

Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir. 1998), nn.167, 

191, 206, 325

Catullo v. Metzner, 834 F.2d 1075 (1st Cir. 1987), nn.419–20

Cavanaugh, In re, 306 F.3d 726 (9th Cir. 2002), nn.617, 629–30, 632–36

Cendant Corp. Litigation, In re, 264 F.3d 201 (3d Cir. 2001), nn.616, 618, 620, 

622–26, 637–40

Cendant Corp. Litigation, In re, 182 F.R.D. 144 (D.N.J. 1998), n.619

Cendant Corp. Prides Litigation, In re, 243 F.3d 722 (3d Cir. 2001), nn.613, 695

Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th Cir. 2001), n.65

Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), nn.3, 383, 530

Charves v. Western Union, 711 F.2d 462 (1st Cir. 1983), n.311

Chemicals Manufacturers Association v. EPA, 885 F.2d 1276 (5th Cir. 1989), 

n.364

Chicago, Milwaukee, St. Paul & Pacific Railroad, In re, 840 F.2d 1308 (7th Cir. 

1988), n.420

Chin, In re, 31 B.R. 314 (Bankr. S.D.N.Y. 1984), n.56

Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206 (2d Cir. 1987), 

n.390

Christiansburg Garment v. EEOC, 434 U.S. 412 (1978), nn.66, 68–73

Church of Scientology v. United States Postal Service, 700 F.2d 486 (9th Cir. 

1983), nn.319–20

Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986), n.238

Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992), n.182

Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir. 1982), n.35

Coalition for Clean Air v. Southern California Edison, 971 F.2d 219 (9th Cir. 

1992), n.376

Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), nn.149, 255, 274
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143

Columbus Mills v. Freeland, 918 F.2d 1575 (11th Cir. 1990), n.219

Commtouch Software Ltd. Securities Litigation, In re, No. 01-C-00719 (N.D. 

Cal. June 27, 2001), n.637

Connolly v. National School Bus Service, Inc., 177 F.3d 593 (7th Cir. 1999), 

n.278

Continental Illinois Securities Litigation, In re, 962 F.2d 566 (7th Cir. 1992), 

nn.330, 336, 462, 467, 470–71, 491, 535

Continental Illinois Securities Litigation, In re, 572 F. Supp. 931 (N.D. Ill. 1983), 

nn.705–06, 733–34

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972), n.6

Cooper v. Utah, 894 F.2d 1169 (10th Cir. 1990), nn.112, 276–77

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), nn.176–77, 331, 540, 543

Corder v. Brown, 25 F.3d 833 (9th Cir. 1994), n.302

Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 

249 (4th Cir. 2013), n.143

Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997), 

nn.149, 233, 374

Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995), nn.168, 656

Cowan v. Prudential Insurance, 935 F.2d 522 (2d Cir. 1991), nn.259–60

Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir. 1984), n.165

Crane v. Texas, 766 F.2d 193 (5th Cir. 1985), n.201

Crane Co. v. American Standard, 603 F.2d 244 (2d Cir. 1979), n.572

Cranston v. Hardin, 504 F.2d 566 (2d Cir. 1974), n.424

Crowder v. Housing Authority of Atlanta, 908 F.2d 843 (11th Cir. 1990), n.117

Cullens v. Georgia Department of Transportation, 29 F.3d 1489 (11th Cir. 1994), 

nn.147, 264–65

Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), nn.261, 324

Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), nn.154, 337

Cunningham v. Los Angeles, 859 F.2d 705 (9th Cir. 1988), n.275

Curran v. Department of Treasury, 805 F.2d 1406 (9th Cir. 1986), n.156

Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), nn.165, 334

Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1992), n.201

Dahlem v. Board of Education, 901 F.2d 1508 (10th Cir. 1990), nn.35, 120

Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986), n.151

Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), nn.142, 158

Davis v. San Francisco, 976 F.2d 1536 (9th Cir. 1992), nn.142, 159, 165, 198

Davis v. Southeastern Pennsylvania Transportation Authority, 924 F.2d 51 (3d 

Cir. 1991), nn.186, 261

Davis v. U.S. Department of Justice, 610 F.3d 750 (D.C. Cir. 2010), n.48
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Davis County Solid Waste Management v. EPA, 169 F.3d 755 (D.C. Cir. 1999), 

n.158

Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3 (1st Cir. 1991), nn.160, 315

Demier v. Gondles, 676 F.2d 92 (4th Cir. 1982), n.197

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980), n.208

Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), n.543

Devine v. National Treasury Employees Union, 805 F.2d 384 (Fed. Cir. 1986), 

n.156

Dexter v. Kirschner, 984 F.2d 979 (9th Cir. 1992), n.33

Diet Drugs Products Liability Litigation, In re, 582 F.3d 524 (3d Cir. 2009), n.516

Diet Drugs Products Liability Litigation, In re, 401 F.3d 143 (3d Cir. 2005), n.369

Diet Drugs Products Liability Litigation, In re, 553 F. Supp. 2d 442 (E.D. Pa. 

2008), nn.516–18

Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir. 1998), 

n.87

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982), n.34

Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), n.35

Domegan v. Ponte, 972 F.2d 401 (1st Cir. 1992), nn.213, 262, 267, 375

Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249 (2d Cir. 1987), 

n.227

Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), n.6

Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982), n.82

Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986), nn.492–93, 

564, 567, 607–08

Donovan v. Local Union 70, 661 F.2d 1199 (9th Cir. 1981), n.566

Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n.213

Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D. Pa. 1976), n.400

Dowdell v. Apopka, Florida, 698 F.2d 1181 (11th Cir. 1983), nn.196, 199

Duran v. Town of Cicero, No. 01-C-6858, 2012 WL 1279903 (N.D. Ill. Apr. 16, 

2012), nn.709–11, 713–14

Durrett v. Jenkins Brickyard, 678 F.2d 911 (11th Cir. 1982), n.311

Eastwood v. National Enquirer, 123 F.3d 1249 (9thCir. 1997), n.17

Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001), n.301

Echols v. Parker, 909 F.2d 795 (5th Cir. 1990), n.368

Educational Testing Service Praxis Principles of Learning & Teaching: Grades 7–

12 Litigation, In re, 447 F. Supp. 2d 612 (E.D. La. 2006), n.508

Edwards v. Heckler, 789 F.2d 659 (9th Cir. 1985), n.587

El Club del Barrio, Inc. v. United Community Corp., 735 F.2d 98 (3d Cir. 1984), 

nn.116, 122, 125
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145

Elliott v. Sperry Rand Corp., 680 F.2d 1225 (8th Cir. 1982), n.410

Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (10th Cir. 1999), 

nn.125, 127

Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986), n.126

Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382 (8th Cir. 1977), 

n.594

Erkins v. Bryan, 785 F.2d 1538 (11th Cir. 1986), nn.574, 595

Evans v. City of Evanston, 941 F.2d 473 (7th Cir. 1991), nn.336, 444–45, 490, 

681–83

Evans v. Jeff D., 475 U.S. 717 (1986), nn.97, 129, 133, 265

Exchange National Bank of Chicago v. Daniels, 763 F.2d 286 (7th Cir. 1985), 

n.367

Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th Cir. 

1993), n.194

Farmington Dowel Products v. Forster Manufacturing Co., 421 F.2d 61 (1st Cir. 

1969), n.364

Farrar v. Hobby, 506 U.S. 103 (1992), nn.30–31, 111, 245–46, 248–51, 262, 269

Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112 (2d Cir. 1978), nn.427, 

429

Feher v. Department of Labor & Industrial Relations, 561 F. Supp. 757 (D. Haw. 

1983), n.57

Feick v. Fleener, 653 F.2d 69 (2d Cir. 1981), n.402

Fidelity Bancorporation Securities Litigation, In re, 750 F. Supp. 160 (D.N.J. 

1990), n.520

Figueroa–Torres v. Todelo-Davilla, 232 F.3d 270 (1st Cir. 2000), n.228

Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989), nn.51, 201

Fine Paper Antitrust Litigation, In re, 751 F.2d 562 (3d Cir. 1984), nn.333, 447, 

470–71, 492, 542, 547

Fischel v. Equitable Life Assurance Society of United States, 307 F.3d 997 (9th 

Cir. 2002), n.523

Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991), nn.236, 325

Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990), n.301

Florida v. Dunne, 915 F.2d 542 (9th Cir. 1990), nn.463–64, 524–25

Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994), n.528

Fogerty v. Fantasy, 510 U.S. 517 (1994), nn.74, 76–77

Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991), n.328

Ford v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006), n.87

Fort v. Roadway Express, 746 F.2d 744 (11th Cir. 1984), n.368

Fox v. Vice, 131 S. Ct. 2205 (2011), nn.71–73
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Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir. 

1989), nn.216, 325

Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 

765 F.2d 1278 (5th Cir. 1985), n.34

Freitag v. California Department of Corrections, No. C00-2275, 2012 WL 

5389839 (N.D. Cal. Nov. 5, 2012), nn.747–48

Friend v. Kolodzieczak, 72 F.3d 1386 (9th Cir. 1995), n.300

Gagne v. Town of Enfield, 734 F.2d 902 (2d Cir. 1984), n.51

Gates v. Central Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 1986), n.368

Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992), nn.158, 294, 332, 335

Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), n.268

Gekas v. Attorney Registration & Disciplinary Commission, 793 F.2d 846 (7th 

Cir. 1986), n.324

Gemstar-TV Guide International, Inc. Securities Litigation, In re, 209 F.R.D. 447 

(C.D. Cal. 2002), n.641

General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, In

re, 55 F.3d 768 (3d Cir. 1995), n.528

Gilbert v. Little Rock, Arkansas, 867 F.2d 1063 (8th Cir. 1989), n.236

Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675 (D.C. Cir. 1996), n.368

Gisbrecht v. Barnhart, 535 U.S. 789 (2002), n.145

Glass v. Secretary of Health & Human Services, 822 F.2d 19 (6th Cir. 1987), 

n.327

Global Crossing Securities & ERISA Litigation, In re, 225 F.R.D. 436 (S.D.N.Y. 

2004), n.649

Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), nn.197, 219

Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), nn.461, 502

Goodwin v. Metts, 973 F.2d 378 (4th Cir. 1992), n.184

Goos v. National Association of Realtors, 68 F.3d 1380 (D.C. Cir. 1995), n.235

Grace v. Burger, 763 F.2d 457 (D.C. Cir. 1985), nn.431, 588

Granada Investments v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992), n.534

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), n.35

Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992), nn.207, 235, 294

Gray ex rel. Alexander v. Bostic, 613 F.3d 1035 (11th Cir. 2010), n.298

Greater Los Angeles Council on Deafness v. Community Television of Southern 

California, 813 F.2d 217 (9th Cir. 1987), n.187

Grendel’s Den v. Larkin, 749 F.2d 945 (1st Cir. 1984), nn.184, 214

Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001), n.43

Grissom v. Mills Corp., 549 F.3d 313 (4th Cir. 2008), n.175

Grove v. Mead School District, 753 F.2d 1528 (9th Cir. 1985), n.80
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147

Guadamuz v. Bowen, 859 F.2d 762 (9th Cir. 1988), n.315

Guam Society of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir. 

1996), n.292

Guidry v. International Union of Operating Engineers, 882 F.2d 929 (6th Cir. 

1989), n.590

Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414 (3d 

Cir. 1993), nn.203–04

Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000), nn.458, 502, 

548, 639

Gusman v. Unisys, 986 F.2d 1146 (7th Cir. 1993), n.159

Hahnemann University Hospital v. All Shore, Inc., 514 F.3d 300 (3d Cir. 2008), 

n.50

Halderman by Halderman v. Pennhurst State School & Hospital, 49 F.3d 939 (3d 

Cir. 1995), n.187

Hall v. Cole, 412 U.S. 1 (1973), nn.559–61

Hamilton v. Daley, 777 F.2d 1207 (7th Cir. 1985), n.313

Hanrahan v. Hampton, 446 U.S. 754 (1980), n.22

Hardt v. Reliance Standard Life Insurance Co., 560 U.S. 242 (2010), nn.19, 62, 64

Harman v. Lyphomed, 945 F.2d 969 (7th Cir. 1991), n.461

Haroco, Inc. v. American National Bank & Trust Co., 38 F.3d 1429 (7th Cir. 

1994), n.143

Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982), n.33

Hart v. Bourque, 798 F.2d 519 (1st Cir. 1986), n.187

Hatrock v. Jones & Co., 750 F.2d 767 (9th Cir. 1984), n.340

Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980), n.51

Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, In 

re, 851 F. Supp. 2d 1040 (S.D. Tex. 2012), nn.496, 498, 506–07, 670, 678

Heekin v. Anthem, Inc., No. 1:05-cv-01908, 2012 WL 5878032 (S.D. Ind. Nov. 

20, 2012), n.514

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), n.282

Hensley v. Eckerhart, 461 U.S. 424 (1983), nn.10–11, 13, 68, 108, 144–45, 151, 

176–77, 209, 222–26, 233–34, 284, 314, 343, 373

Henson v. Columbus Bank & Trust Co., 651 F.2d 320 (5th Cir. 1981), n.321

Hepburn, In re, 84 B.R. 855 (Bankr. S.D. Fla. 1988), n.56

Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981), n.317

Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989), n.235

Hewitt v. Helms, 482 U.S. 755 (1987), n.21

Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), n.52
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High Sulfur Content Gasoline Products Liability Litigation, In re, 517 F.3d 220 

(5th Cir. 2008), n.545

Highmark Inc. v. Allcare Health Management System, Inc., 134 S. Ct. 1744 

(2014), n.372

Hill, In re, 775 F.2d 1037 (9th Cir. 1985), nn.431, 588

Hobbs v. McLean, 117 U.S. 567 (1886), nn.448–49

Holbrook v. Pitt, 748 F.2d 1168 (7th Cir. 1984), n.390

Hollowell v. Gravett, 723 F. Supp. 107 (E.D. Ark. 1989), n.289

Home Savings Bank v. Gillam, 952 F.2d 1152 (9th Cir. 1991), n.585

Homeward Bound, Inc. v. Hissom Memorial Hospital, 963 F.2d 1352 (10th Cir. 

1992), n.376

Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978), n.57

Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992), n.23

Hyman Construction Co. v. Brooks, 963 F.2d 1532 (D.C. Cir. 1992), n.231

Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), 

nn.104–05, 109

Independent School District v. Digre, 893 F.2d 987 (8th Cir. 1990), n.208

Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 

694 (3d Cir. 2005), n.170

International Nickel Co. v. Trammel Crow Distribution Corp., 803 F.2d 150 (5th 

Cir. 1986), n.273

International Precious Metals Corp. v. Waters, 530 U.S. 1223 (2000), n.482

Iqbal v. Golf Course Superintendents, 900 F.2d 227 (10th Cir. 1990), n.201

Islamic Center of Mississippi v. Starkville, Mississippi, 876 F.2d 465 (5th Cir. 

1989), n.154

Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), n.235

Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), nn.235, 376

Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995), n.235

Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), n.216

Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992), nn.106–07

Jenkins v. Missouri, 931 F.2d 1273 (8th Cir. 1991), n.300

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), nn.150–52, 

243, 465

Johnson v. HUD, 939 F.2d 586 (8th Cir. 1991), n.585

Johnson v. Lafayette Fire Fighters Association Local 472, 51 F.3d 726 (7th Cir. 

1995), nn.17, 252–53

Johnson v. New York City Transit Authority, 823 F.2d 33 (2d Cir. 1987), n.325

Johnson v. Rodriguez, 260 F.3d 493 (5th Cir. 2001), n.43
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149

Johnston v. Comerica Mortgage Co., 83 F.3d 241 (8th Cir. 1996), n.461

Jones v. Central Bank, 161 F.3d 311 (5th Cir. 1998), n.17

Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984), nn.431, 588

Joyce v. Town of Dennis, 720 F.3d 12 (1st Cir. 2013), n.235

Junker v. Cory, 650 F.2d 1349 (5th Cir. 1981), nn.417–18

Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970), n.578

Kahane v. UNUM Life Insurance Co. of America, 563 F.3d 1210 (11th Cir. 

2009), n.50

Kargman v. Sullivan, 589 F.2d 63 (1st Cir. 1978), n.385

Kay v. Ehrler, 499 U.S. 432 (1991), nn.85–86

Kay Co. v. Equitable Production Co., 749 F. Supp. 2d 455 (S.D. W. Va. 2010), 

n.508

Kean v. Stone, 966 F.2d 119 (3d Cir. 1992), n.156

Keely v. City of Leesville, 897 F.2d 172 (5th Cir. 1990), n.51

Kelley v. Metropolitan County Board of Education, 773 F.2d 677 (6th Cir. 1985), 

nn.154, 362, 364

Kentucky v. Graham, 473 U.S. 159 (1985), n.103

Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975), n.152

King v. McCord, 621 F.2d 205 (5th Cir. 1980), n.322

Kinney v. International Brotherhood of Electrical Workers, 939 F.2d 690 (9th 

Cir. 1991), nn.492–93, 605, 607–08

Klawock, City of, v. Gustafson, 585 F.2d 428 (9th Cir. 1978), nn.422, 425–26

Konits v. Valley Stream Central High School District, 350 F. App’x 501 (2d Cir. 

2009), n.147

Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999), n.90

Kopet v. Esquire Realty, 523 F.2d 1005 (2d Cir. 1975), n.413

Koppel v. Wien, 743 F.2d 129 (2d Cir. 1984), nn.414, 576

Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541 (11th Cir. 1985), nn.152, 

311

Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985), n.33

Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir. 1957), n.401

Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), nn.168, 174–75,

654–55, 657–58, 739

Laguna v. Coverall North America, Inc., 753 F.3d 918 (9th Cir. 2014), n.134

Lattimore v. Oman Construction, 868 F.2d 437 (11th Cir. 1989), nn.296, 364

Lawnmower Engine Horsepower Marketing & Sales Practices Litigation, In re,

733 F. Supp. 2d 997 (E.D. Wis. 2010), nn.507, 511

Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), n.113
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Lefemine v. Wideman, 133 S. Ct. 9 (2012), nn.24, 32

Leffler v. Meer, 936 F.2d 981 (7th Cir. 1991), n.312

Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990), n.164

Lewis v. Anderson, 692 F.2d 1267 (9th Cir. 1982), nn.577–78

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n.193

Libby v. Illinois High School Association, 921 F.2d 96 (7th Cir. 1990), n.36

Library of Congress v. Shaw, 478 U.S. 310 (1985), n.294

Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987), n.214

Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 

540 F.2d 102 (3d Cir. 1976), nn.211, 385, 455, 531

Linquist v. Bowen, 839 F.2d 1321 (8th Cir. 1988), nn.431, 588

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992), nn.136, 189, 213, 226, 291, 378

Lobur v. Parker, 378 F. App’x 63 (2d Cir. 2010), n.409

Loggerhead Turtle v. County Council, 307 F.3d 1318 (11th Cir. 2002), n.65

Lonardo v. Travelers Indemnity Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010), 

nn.645, 649

Loudermilk Services, Inc. v. Marathon Petroleum Co., 623 F. Supp. 2d 713 (S.D. 

W. Va. 2009), n.509

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir. 1995), nn.300, 

379

Louisville Black Police Officers Organization v. City of Louisville, 700 F.2d 268 

(6th Cir. 1983), n.183

Lowrance v. Hacker, 966 F.2d 1153 (7th Cir. 1992), nn.98, 101

Lucent Technologies, Inc., Securities Litigation, In re, 194 F.R.D. 137 (D.N.J. 

2000), n.628

Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987), nn.218, 220

Macdissi v. Valmont Industries, 856 F.2d 1054 (8th Cir. 1988), n.217

Maher v. Gagne, 448 U.S. 122 (1980), n.38

Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir. 1966), 

n.423

Maine v. Thiboutot, 448 U.S. 1 (1980), n.29

Maldonado v. Lehman, 811 F.2d 1341 (9th Cir. 1987), n.159

Mallinson Montague v. Pocrnick, 224 F.3d 1224 (10th Cir. 2000), n.714

Mancini v. Dan P. Plute, Inc., 358 F. App’x 886 (9th Cir. 2009), n.174

Marek v. Chesny, 473 U.S. 1 (1985), nn.270, 364

Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986), n.329

Maristuen v. National States Insurance Co., 57 F.3d 673 (8th Cir. 1995), n.366

Markham v. International Association of Bridge, Structural & Ornamental Iron 

Workers, 901 F.2d 1022 (11th Cir. 1990), nn.580–81
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151

Marshall v. United Steelworkers, 666 F.2d 845 (3d Cir. 1981), nn.566, 597

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005), n.109

Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir. 2007), nn.483–

86

Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1990), n.51

Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988), n.300

McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983), n.214

McCarter v. Retirement Plan for District Managers of American Family 

Insurance Group, 540 F.3d 649 (7th Cir. 2008), n.368

McCoy v. United Parcel Service, 222 F. App’x 87 (2d Cir. 2007), n.412

McDonald v. Doe, 748 F.2d 1055 (5th Cir. 1984), n.51

McDonald v. McCarthy, 966 F.2d 112 (3d Cir. 1992), nn.362, 364, 367

McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1976), n.594

McDonald v. Pension Plan of NYSA–ILA Pension Trust Fund, 450 F.3d 91 (2d 

Cir. 2006), n.240

McGuire v. Russell Miller, Inc., 1 F.3d 1306 (2d Cir. 1993), n.342

McKenzie v. Kennickell, 669 F. Supp. 529 (D.D.C. 1987), n.55

McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980), n.201

McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), n.420

Meese, In re, 907 F.2d 1192 (D.C. Cir. 1990), n.165

Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir. 2008), n.195

MidAmerica Federal Savings & Loan v. Shearson/American, 962 F.2d 1470 (10th 

Cir. 1992), nn.301, 340

Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 

F.2d 407 (2d Cir. 1987), n.220

Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), nn.242–44, 266

Miller v. Los Angeles, 827 F.2d 617 (9th Cir. 1987), n.311

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), n.80

Miller-Wohl Co. v. Commissioner of Labor & Industry, State of Montana, 694 

F.2d 203 (9th Cir. 1982), n.94

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), nn.418, 556–58, 563, 568

Milton v. Des Moines, Iowa, 47 F.3d 944 (8th Cir. 1995), n.256

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), n.52

Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781 (7th Cir. 2004), n.131

Missouri v. Jenkins, 491 U.S. 274 (1989), nn.135–36, 153, 294

Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986), n.56

Montgomery & Associates, Inc. v. Commodity Futures Trading Commission, 

816 F.2d 783 (D.C. Cir. 1987), n.363

Moore v. Matthews, 682 F.2d 830 (9th Cir. 1982), n.160

Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996), nn.147, 152, 254
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Morales v. Turman, 820 F.2d 728 (5th Cir. 1987), n.93

Morgan v. Union Metal, 757 F.2d 792 (6th Cir. 1985), n.368

MRRM, P.A., In re, 404 F.3d 863 (4th Cir. 2005), n.500

Muckleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695 (9th Cir. 

1989), nn.123, 125

Munson v. Friske, 754 F.2d 683 (7th Cir. 1985), n.311

Murphy v. International Union of Operating Engineers, 774 F.2d 114 (6th Cir. 

1985), n.596

Murphy v. Reliance Standard Life Insurance Co., 247 F.3d 1313 (11th Cir. 2001), 

n.308

Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir. 2006), n.131

NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), n.220

National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 

1319 (D.C. Cir. 1982), nn.315, 318

National Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir. 1975), 

n.391

Natural Resources Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973), n.6

Nensel v. Peoples Heritage Financial Group, Inc., 815 F. Supp. 26 (D. Me. 1993), 

n.528

New Jersey v. EPA, 703 F.3d 110 (D.C. Cir. 2012), n.165

New York Gaslight Club v. Carey, 447 U.S. 54 (1980), nn.49, 110

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), nn.108, 110

Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219 (4th Cir. 

2009), n.174

Nicodemus v. Chrysler Corp., 445 F. Supp. 559 (N.D. Ohio 1977), n.57

Nilsen v. York County, 400 F. Supp. 266 (D. Me. 2005), n.503

Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litigation, In 

re, 982 F.2d 603 (1st Cir. 1992), nn.544–45, 549

Nisby v. Court of Jefferson County, 798 F.2d 134 (5th Cir. 1986), n.152

Nolte v. Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931), n.400

Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir. 1988), 

nn.202, 210, 219–20, 226, 295, 315, 323, 325–26

North Carolina Department of Transportation v. Crest Street Community 

Council, Inc., 479 U.S. 6 (1986), n.49

Northeast Women’s Center v. McMonagle, 889 F.2d 466 (3d Cir. 1989), nn.51, 

227, 261

Northern Plains Resource Council v. EPA, 670 F.2d 847 (9th Cir. 1982), n.362
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153

Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014), 

nn.59–61

Ohio-Sealy Mattress, In re, 776 F.2d 646 (7th Cir. 1985), n.330

Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), n.583

Olson, In re, 884 F.2d 1415 (D.C. Cir. 1989), nn.185, 190, 214

Oracle Securities Litigation, In re, 131 F.R.D. 688 (N.D. Cal. 1990), nn.615, 685, 

687

Oracle Securities Litigation, In re, 132 F.R.D. 538 (N.D. Cal. 1990), nn.615, 685, 

688

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d Cir. 1997), n.147

Orenshteyn v. Citrix Systems, Inc., 691 F.3d 1356 (Fed. Cir. 2012), n.368

Oster v. Bowen, 682 F. Supp. 853 (E.D. Va. 1988), n.585

Overseas Development Disc Corp. v. Sangamo Construction Co., 840 F.2d 1319 

(7th Cir. 1988), n.549

Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), n.34

Paris v. Metropolitan Life Insurance, 94 F. Supp. 792 (S.D.N.Y. 1947), n.415

Parke v. First Reliance Standard Life Insurance Co., 368 F.3d 999 (8th Cir. 2004), 

n.50

Parker v. Time Warner Entertainment Co., L.P., 631 F. Supp. 2d 242 (E.D.N.Y. 

2009), n.486

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989), n.463

Pavlik v. FDIC, No. 10C816, 2011 WL 5184445 (N.D. Ill. Nov. 1, 2011), n.513

Pawlak v. Greenawalt, 713 F.2d 972 (3d Cir. 1983), nn.583, 597, 607–08

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 

(1986) (Delaware Valley I), nn.38, 44–46, 281, 285–87

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711 

(1987) (Delaware Valley II), nn.304–07, 651

Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. 1993), n.368

People Who Care v. Rockford Board of Education, 921 F.2d 132 (7th Cir. 1991), 

nn.56, 370

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), nn.279–81, 284–86, 288, 

309

Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991), n.196

Peterson v. Continental Casualty Co., 282 F.3d 112 (2d Cir. 2002), n.50

Petties v. District of Columbia, 227 F.3d 469 (D.C. Cir. 2000), n.371

Pfizer Inc. Securities Litigation, In re, 233 F.R.D. 334 (S.D.N.Y. 2005), n.641

Phelps v. Washburn University of Topeka, 807 F.2d 153 (10th Cir. 1986), n.368

Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), n.56

Pickett v. Sheridan Health Care Center, 664 F.3d 632 (7th Cir. 2011), nn.171–73
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Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996), nn.205, 227

Planned Parenthood of Central New Jersey v. Attorney General of State of New 

Jersey, 297 F.3d 253 (3d Cir. 2002), n.17

Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991), n.52

Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), nn.162–63, 239

Polk v. New York State Department of Correctional Services, 722 F.2d 23 (2d 

Cir. 1983), n.158

Powell v. Pennsylvania Railroad, 267 F.2d 241 (3d Cir. 1959), n.401

Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000), nn.548, 644

Prandini v. National Tea, 557 F.2d 1015 (3d Cir. 1975), n.132

Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992), nn.221, 234

Pridgen v. Andresen, 113 F.3d 391 (2d Cir. 1997), n.368

Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), n.175

Prudential Insurance Co. of America Sales Practices Litigation, In re, 148 F.3d 

283 (3d Cir. 1998), nn.515, 528

Puerto Rican Cabotage Antitrust Litigation, In re, 815 F. Supp. 2d 448 (D.P.R. 

2011), n.508

Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984), n.431

Pulliam v. Allen, 466 U.S. 522 (1984), n.102

Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1998), n.147

Quave v. Progress Marine, 918 F.2d 33 (5th Cir. 1990), n.367

Quintus Securities Litigation, In re, 201 F.R.D. 475 (N.D. Cal. 2001), nn.631, 689

Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 

2012), n.143

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir. 1974), nn.502, 575, 

577

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), nn.160, 206, 214

Ramsey v. Colonial Life Insurance Co. of America, 12 F.3d 472 (5th Cir. 1994), 

nn.358–59

Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000), n.156

Rawlings v. Prudential-Bach Properties, Inc., 9 F.3d 513 (6th Cir. 1993), n.461

Ray v. U.S. Department of Justice, 87 F.3d 1250 (11th Cir. 1996), n.87

Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014), nn.356–

57

Razorfish Inc. Securities Litigation, In re, 143 F. Supp. 2d 304 (S.D.N.Y. 2001), 

n.641

Reel v. Arkansas Department of Corrections, 672 F.2d 693 (8th Cir. 1982), 

nn.51, 201
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155

Rego v. Westvaco, 319 F.3d 140 (4th Cir. 2003), n.50

Reiser v. Del Monte Properties, 605 F.2d 1135 (9th Cir. 1979), nn.414, 584

Relafin Antitrust Litigation, In re, 231 F.R.D. 52 (D. Mass. 2005), n.508

Resolution Trust v. Marshall, 939 F.2d 274 (5th Cir. 1991), n.341

Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002), nn.411, 469

Rhodes v. Stewart, 488 U.S. 1 (1988), n.21

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008), nn.137–38

Rickley v. County of Los Angeles, 654 F.3d 950 (9th Cir. 2011), n.89

Rite Aid Corp. Securities Litigation, In re, 396 F.3d 294 (3d Cir. 2005), nn.458, 

515, 521

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), nn.178, 257–58, 268

Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998), nn.227, 315

Robinson v. Equifax Information Services, LLC, 560 F.3d 235 (4th Cir. 2009), 

n.175

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981), n.364

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990), nn.211–12, 230

Rodriguez v. Disner, 688 F.3d 645 (9th Cir. 2012), n.408

Role Models AM, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004), n.714

Rooths v. District of Columbia, 802 F. Supp. 2d 56 (D.D.C. 2011), n.657

Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d Cir. 

1979), n.594

Rosenbaum v. MacAllister, 64 F.3d 1439 (10th Cir. 1995), n.604

Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988), n.370

Roth v. Green, 466 F.3d 1179 (10th Cir. 2006), n.311

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983), nn.19, 64

Rude v. Buchhalter, 286 U.S. 451 (1932), n.416

Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994), nn.105, 

158, 187, 380

Russell v. Board of Plumbing Examiners, 74 F. Supp. 2d 349 (S.D.N.Y. 1999), 

n.96

Salazar v. District of Columbia, 123 F. Supp. 8 (D.D.C. 2000), n.169

Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), n.101

Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988), 

nn.157, 168

Scham v. District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir. 1998), 

n.192

Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969), n.424

Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir. 1999), 

n.88
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Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (D.C. Cir. 1981), n.92

Schultz v. Hembree, 975 F.2d 572 (9th Cir. 1992), nn.232, 376

SEC v. Price Waterhouse, 41 F.3d 805 (2d Cir. 1994), n.87

Sederquist v. Court, 861 F.2d 554 (9th Cir. 1988), nn.600–01

Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota, 

771 F.2d 1153 (8th Cir. 1985), n.159

Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332 (4th Cir. 1996), n.273

Shimman v. International Union of Operating Engineers, 744 F.2d 1226 (5th 

Cir. 1984), nn.573, 591, 595–96

Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993), nn.283, 287

Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), nn.369–70

Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), n.65

Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990), 

nn.464, 552

Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988), nn.296, 384, 447, 

471, 527

Skokos v. Rhoades, 440 F.3d 957 (8th Cir. 2006), nn.51–52

Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983), n.606

Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990), nn.183, 196, 299

Smith v. Great American Restaurants, 969 F.2d 430 (7th Cir. 1992), n.339

Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), n.34

Sole v. Wyner, 551 U.S. 74 (2007), nn.25–27, 37

Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981), n.430

Southerland v. International Longshoremen’s Union, 845 F.2d 796 (9th Cir. 

1987), nn.563, 569, 604

Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977), n.201

Spain v. Mountanos, 690 F.2d 742 (9th Cir. 1982), n.202

Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129 (7th 

Cir. 1987), nn.236, 241

Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir. 1999), n.181

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), n.165

Spellan v. Board of Education, 59 F.3d 642 (7th Cir. 1995), n.234

Sprague v. Ticonic, 307 U.S. 161 (1939), nn.386–87, 402, 421–23

Standley v. Chilhowee R-IV School District, 5 F.3d 319 (8th Cir. 1993), n.143

Starks v. George Court Co., 937 F.2d 311 (7th Cir. 1991), n.115

Staten v. Housing Authority of Pittsburgh, 638 F.2d 599 (3d Cir. 1980), n.119

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003), n.134

Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998), 

nn.466, 476, 488–89
Table of Cases (Alphabetical)

157

Student Public Interest Research Group v. AT&T Bell Laboratories, 842 F.2d 

1436 (3d Cir. 1988), n.325

Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990), nn.385, 446, 

452, 490

Sullivan v. DB Investments, 667 F.3d 273 (3d Cir. 2011), n.458

Sutton v. Bernard, 504 F.3d 688 (7thCir. 2007), n.510

Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), n.460

Sykes v. District of Columbia, 870 F. Supp. 2d 86 (D.D.C. 2012), nn.657–58

Sylvester v. Cigna Corp., 369 F. Supp. 2d 34 (D. Me. 2005), n.475

Synthroid Marketing Litigation, In re, 264 F.3d 712 (7th Cir. 2001) (Synthroid I), 

nn.208, 504–05, 510

Synthroid Marketing Litigation, In re, 325 F.3d 974 (3d Cir. 2003) (Synthroid II), 

nn.520, 529, 554

Taylor v. Fort Lauderdale, 810 F.2d 1551 (11th Cir. 1987), n.35

Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), n.364

Texas State Teachers Association v. Garland Independent School District, 489 

U.S. 782 (1989), nn.20, 54

Thirteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litigation, In 

re, 56 F.3d 295 (1st Cir. 1995), nn.461, 528, 554

Thomas v. National Football League Players Association, 273 F.3d 1124 (D.C. 

Cir. 2001), n.262

Thomason v. Schweiker, 692 F.2d 333 (4th Cir. 1982), n.315

Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332 (11th Cir. 2001), 

n.17

TJX Cos. Retail Security Breach Litigation, In re, 584 F. Supp. 2d 395 (D. Mass. 

2008), n.486

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923), n.5

Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), nn.311, 365

Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), nn.213, 330, 714

Toth v. UAW, 743 F.2d 398 (6th Cir. 1984), n.599

Trans Union Corp. Privacy Litigation, In re, 629 F.3d 741 (7th Cir. 2011), n.510

Travelers Casualty & Surety Co. v. Insurance Co. of North America, 609 F.3d 143 

(3d Cir. 2010), n.301

Trustees v. Greenough, 105 U.S. 527 (1881), nn.3, 381–82, 435–36, 532–33, 549

Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830 (E.D. La. 2007), nn.507, 

514

Tyler v. Corner Construction Corp., 167 F.3d 1202 (8th Cir. 1999), n.121
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Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 

2012), nn.465–66, 642

United Health Group, Inc. PSLRA Litigation, In re, 643 F. Supp. 2d 1094 (D. 

Minn. 2009), n.649

United States v. ASCAP, 466 F.2d 917 (2d Cir. 1972), n.400

United States v. Board of Education of Waterbury, 605 F.2d 573 (2d Cir. 1979), 

n.81

United States v. Imperial Irrigation District, 595 F.2d 525 (9th Cir. 1979), n.586

United States v. Tobias, 935 F.2d 666 (4th Cir. 1991), nn.450–51, 453–54

United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian 

Construction Corp., 95 F.3d 153 (2d Cir. 1996), n.143

United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equipment, Inc., 89 

F.3d 574 (9th Cir. 1996), n.97

United Steelworkers v. Phelps Dodge, 896 F.2d 403 (9th Cir. 1990), n.324

Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849 (10th Cir. 

1993), n.408

Usery v. Local Union No. 639, International Brotherhood of Teamsters, 543 F.2d 

369 (D.C. Cir. 1976), nn.563–64, 603

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), nn.183, 201, 232, 377

Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995), nn.360–61

Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 71 

F.3d 1053 (2d Cir. 1995), n.124

Vaughan v. Atkinson, 369 U.S. 527 (1962), n.5

Venegas v. Mitchell, 495 U.S. 82 (1990), n.146

Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), n.233

Vincent v. Hughes Air West, Inc., 557 F.2d 759 (9th Cir. 1977), n.382

Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990), nn.226, 266

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

761 (5th Cir. 1996), nn.215, 297–98

Warfarin Sodium Antitrust Litigation, In re, 212 F.R.D. 231 (D. Del. 2002), n.695

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

Cir. 1996), nn.166, 261

Washington v. Seattle School District, 458 U.S. 457 (1982), n.110

Washington Public Power Supply System Securities Litigation, In re, 19 F.3d 

1291 (9th Cir. 1994), nn.298, 461, 464, 528

Waters v. International Precious Metals Co., 190 F.3d 1291 (11th Cir. 1999), 

nn.389, 475, 487, 648

Webb v. Board of Education, 471 U.S. 234 (1985), n.49
Table of Cases (Alphabetical)

159

Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988), nn.35, 370

Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991), 

nn.131, 471

Wells Fargo Securities Litigation, In re, 156 F.R.D. 223 (N.D. Cal. 1994), n.689

Wenderhold v. Cylink Corp., 189 F.R.D. 570 (N.D. Cal. 1999), n.689

West Side Women’s Service v. Cleveland, 594 F. Supp. 299 (N.D. Ohio 1984), 

n.55

West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), n.139

Weyant v. Okst, 198 F.3d 311 (2d Cir. 1999), n.18

Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982), n.113

White v. Auerbach, 500 F.2d 822 (2d Cir. 1974), nn.403–07

White v. New Hampshire Department of Employment Security, 455 U.S. 445 

(1982), nn.14–15, 352–53

Whittier v. Emmett, 281 F.2d 24 (D.C. Cir. 1960), n.415

Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992), nn.80, 83–84, 95

Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985), n.165

Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), n.35

Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir. 1997), 

nn.389, 487

Williams v. Roberts, 904 F.2d 634 (11th Cir. 1990), n.227

Wing v. Asarco Inc., 114 F.3d 986 (9th Cir. 1997), n.293

Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069 (8th Cir. 

1991), n.229

Winton v. Amos, 255 U.S. 373 (1921), n.415

Wolfe v. Perry, 412 F.3d 707 (6th Cir. 2005), n.311

Woodside v. School District of Philadelphia Board of Education, 248 F.3d 129 

(3d Cir. 2001), n.87

Woolridge v. Marlene Industries Corp., 898 F.2d 1169 (6th Cir. 1990), n.208

Wray v. Clarke, 151 F.3d 807 (8th Cir. 1998), nn.126, 128

Yaron v. Northampton, 963 F.2d 33 (3d Cir. 1992), n.201

Zamora v. Local 11, 817 F.2d 566 (9th Cir. 1987), n.570

161

Table of Cases (by Court)

Supreme Court

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), nn.2, 7–

8, 428, 562–63, 589

Arlington Central School District Board of Education v. Murphy, 548 U.S. 291 

(2006), n.141

Astrue v. Ratliff, 130 S. Ct. 2521 (2010), n.97

Blanchard v. Bergeron, 489 U.S. 87 (1989), nn.108, 146, 443

Bloomer v. Liberty Mutual Insurance, 445 U.S. 74 (1980), n.442

Blum v. Stenson, 465 U.S. 886 (1984), nn.155–56, 161, 218, 281, 284–86, 456–57

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), nn.388–89, 432–34, 437–38, 

478–81, 536, 549

Bradley v. School Board of Richmond, 416 U.S. 696 (1974), nn.53, 55, 110

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & 

Human Resources, 532 U.S. 598 (2001), nn.39–42, 44

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), nn.354–55

Burlington, City of, v. Dague, 505 U.S. 557 (1992), nn.308, 526, 528

Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), nn.3, 383, 530

Christiansburg Garment v. EEOC, 434 U.S. 412 (1978), nn.66, 68–71

Evans v. Jeff D., 475 U.S. 717 (1986), nn.97, 129, 133, 265

Farrar v. Hobby, 506 U.S. 103 (1992), nn.30–31, 111, 245–46, 248–51, 262, 269

Fogerty v. Fantasy, 510 U.S. 517 (1994), nn.74, 76–77

Fox v. Vice, 131 S. Ct. 2205 (2011), nn.71–73

Gisbrecht v. Barnhart, 535 U.S. 789 (2002), n.145

Hall v. Cole, 412 U.S. 1 (1973), nn.559–61

Hanrahan v. Hampton, 446 U.S. 754 (1980), n.22

Hardt v. Reliance Standard Life Insurance Co., 560 U.S. 242 (2010), nn.19, 62, 64

Hensley v. Eckerhart, 461 U.S. 424 (1983), nn.10–11, 13, 68, 108, 144–45, 151, 

176–77, 209, 222–26, 233–34, 284, 314, 343, 373

Hewitt v. Helms, 482 U.S. 755 (1987), n.21

Highmark Inc. v. Allcare Health Management System, Inc., 134 S. Ct. 1744 

(2014), n.372

Hobbs v. McLean, 117 U.S. 567 (1886), nn.448–49

Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), 

nn.104–05, 109

International Precious Metals Corp. v. Waters, 530 U.S. 1223 (2000), n.482

Kay v. Ehrler, 499 U.S. 432 (1991), nn.85–86
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Kentucky v. Graham, 473 U.S. 159 (1985), n.103

Lefemine v. Wideman, 133 S. Ct. 9 (2012), nn.24, 32

Library of Congress v. Shaw, 478 U.S. 310 (1985), n.294

Maher v. Gagne, 448 U.S. 122 (1980), n.38

Maine v. Thiboutot, 448 U.S. 1 (1980), n.29

Marek v. Chesny, 473 U.S. 1 (1985), nn.270, 364

Martin v. Franklin Capital Corp., 546 U.S. 132 (2005), n.109

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), nn.418, 556–58, 563, 568

Missouri v. Jenkins, 491 U.S. 274 (1989), nn.135–36, 153, 294

New York Gaslight Club v. Carey, 447 U.S. 54 (1980), nn.49, 110

Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), nn.108, 110

North Carolina Department of Transportation v. Crest Street Community 

Council, Inc., 479 U.S. 6 (1986), n.49

Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014), 

nn.59–61

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546 

(1986) (Delaware Valley I), nn.38, 44–46, 281, 285–87

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711 

(1987) (Delaware Valley II), nn.304–07, 651

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010), nn.279–81, 284–86, 288, 

309

Pulliam v. Allen, 466 U.S. 522 (1984), n.102

Ray Haluch Gravel Co. v. Central Pension Fund, 134 S. Ct. 773 (2014), nn.356–

57

Rhodes v. Stewart, 488 U.S. 1 (1988), n.21

Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008), nn.137–38

Riverside, City of, v. Rivera, 477 U.S. 561 (1986), nn.178, 257–58, 268

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983), nn.19, 64

Rude v. Buchhalter, 286 U.S. 451 (1932), n.416

Sole v. Wyner, 551 U.S. 74 (2007), nn.25–27, 37

Sprague v. Ticonic, 307 U.S. 161 (1939), nn.386–87, 402, 421–23

Texas State Teachers Association v. Garland Independent School District, 489 

U.S. 782 (1989), nn.20, 54

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923), n.5

Trustees v. Greenough, 105 U.S. 527 (1881), nn.3, 381–82, 435–36, 532–33, 549

Vaughan v. Atkinson, 369 U.S. 527 (1962), n.5

Venegas v. Mitchell, 495 U.S. 82 (1990), n.146

Washington v. Seattle School District, 458 U.S. 457 (1982), n.110

Webb v. Board of Education, 471 U.S. 234 (1985), n.49

West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), n.139
Table of Cases (by Court)

163

White v. New Hampshire Department of Employment Security, 455 U.S. 445 

(1982), nn.14–15, 352–53

Winton v. Amos, 255 U.S. 373 (1921), n.415

Appellate Courts

First Circuit

Ackerly Communications v. Somerville, 901 F.2d 170 (1st Cir. 1990), nn.158, 

180, 183

Benitez v. Collazo-Collazo, 888 F.2d 930 (1st Cir. 1989), n.100

Catullo v. Metzner, 834 F.2d 1075 (1st Cir. 1987), nn.419–20

Charves v. Western Union, 711 F.2d 462 (1st Cir. 1983), n.311

Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir. 1982), n.35

Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997), 

nn.149, 233, 374

Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3 (1st Cir. 1991), nn.160, 315

Domegan v. Ponte, 972 F.2d 401 (1st Cir. 1992), nn.213, 262, 267, 375

Farmington Dowel Products v. Forster Manufacturing Co., 421 F.2d 61 (1st Cir. 

1969), n.364

Figueroa–Torres v. Todelo-Davilla, 232 F.3d 270 (1st Cir. 2000), n.228

Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991), n.328

Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001), n.268

Grendel’s Den v. Larkin, 749 F.2d 945 (1st Cir. 1984), nn.184, 214

Hart v. Bourque, 798 F.2d 519 (1st Cir. 1986), n.187

Joyce v. Town of Dennis, 720 F.3d 12 (1st Cir. 2013), n.235

Kargman v. Sullivan, 589 F.2d 63 (1st Cir. 1978), n.385

Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n.193

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992), nn.136, 189, 213, 226, 291, 378

Natural Resources Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973), n.6

Nineteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litigation, In 

re, 982 F.2d 603 (1st Cir. 1992), nn.544–45, 549

Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir. 1999), 

n.88

Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977), n.201

Thirteen Appeals Arising out of San Juan Dupont Plaza Hotel Fire Litigation, In 

re, 56 F.3d 295 (1st Cir. 1995), nn.461, 528, 554

Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991), 

nn.131, 471

Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985), n.165
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Second Circuit

Agent Orange Product Liability Litigation, In re, 818 F.2d 226 (2d Cir. 1987), 

nn.158, 332, 499, 551

Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988), nn.385, 394–96

Brown v. General Motors, 722 F.2d 1009 (2d Cir. 1983), n.99

Carey v. Crescenzi, 923 F.2d 18 (2d Cir. 1991), n.315

Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206 (2d Cir. 1987), 

n.390

Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992), n.182

Cowan v. Prudential Insurance, 935 F.2d 522 (2d Cir. 1991), nn.259–60

Crane Co. v. American Standard, 603 F.2d 244 (2d Cir. 1979), n.572

Cranston v. Hardin, 504 F.2d 566 (2d Cir. 1974), n.424

Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1992), n.201

Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), n.543

Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249 (2d Cir. 1987), 

n.227

Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986), nn.492–93, 

564, 567, 607–08

Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112 (2d Cir. 1978), nn.427, 

429

Feick v. Fleener, 653 F.2d 69 (2d Cir. 1981), n.402

Gagne v. Town of Enfield, 734 F.2d 902 (2d Cir. 1984), n.51

Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), nn.461, 502

Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992), nn.207, 235, 294

Johnson v. New York City Transit Authority, 823 F.2d 33 (2d Cir. 1987), n.325

Konits v. Valley Stream Central High School District, 350 F. App’x 501 (2d Cir. 

2009), n.147

Kopet v. Esquire Realty, 523 F.2d 1005 (2d Cir. 1975), n.413

Koppel v. Wien, 743 F.2d 129 (2d Cir. 1984), nn.414, 576

Lobur v. Parker, 378 F. App’x 63 (2d Cir. 2010), n.409

Masters v. Wilhelmina Model Agency, Inc., 473 F.3d 423 (2d Cir. 2007), nn.483–

86

McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983), n.214

McCoy v. United Parcel Service, 222 F. App’x 87 (2d Cir. 2007), n.412

McDonald v. Pension Plan of NYSA-ILA Pension Trust Fund, 450 F.3d 91 (2d 

Cir. 2006), n.240

McGuire v. Russell Miller, Inc., 1 F.3d 1306 (2d Cir. 1993), n.342

Miele v. New York State Teamsters Conference Pension & Retirement Fund, 831 

F.2d 407 (2d Cir. 1987), n.220

Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), n.52
Table of Cases (by Court)

165

Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986), n.56

Nolte v. Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931), n.400

Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d Cir. 1997), n.147

Peterson v. Continental Casualty Co., 282 F.3d 112 (2d Cir. 2002), n.50

Polk v. New York State Department of Correctional Services, 722 F.2d 23 (2d 

Cir. 1983), n.158

Pridgen v. Andresen, 113 F.3d 391 (2d Cir. 1997), n.368

Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1998), n.147

Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d Cir. 

1979), n.594

SEC v. Price Waterhouse, 41 F.3d 805 (2d Cir. 1994), n.87

Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990), nn.385, 446, 

452, 490

Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), nn.311, 365

United States v. ASCAP, 466 F.2d 917 (2d Cir. 1972), n.400

United States v. Board of Education of Waterbury, 605 F.2d 573 (2d Cir. 1979), 

n.81

United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian 

Construction Corp., 95 F.3d 153 (2d Cir. 1996), n.143

Valley Disposal, Inc. v. Central Vermont Solid Waste Management District, 71 

F.3d 1053 (2d Cir. 1995), n.124

Weyant v. Okst, 198 F.3d 311 (2d Cir. 1999), n.18

Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982), n.113

White v. Auerbach, 500 F.2d 822 (2d Cir. 1974), nn.403–07

Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992), nn.80, 83–84, 95

Third Circuit

Ashley v. Atlantic Richfield, 794 F.2d 128 (3d Cir. 1986), n.122

AT&T Corp., In re, 455 F.3d 160 (3d Cir. 2006), n.522

Bell v. United Princeton Properties, 884 F.2d 713 (3d Cir. 1989), nn.337, 375

Black Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648 (3d Cir. 

1986), n.220

Blum v. Witco Chemical Corp., 829 F.2d 367 (3d Cir. 1987), n.315

Brennan v. United Steelworkers of America, 554 F.2d 586 (3d Cir. 1977), 

nn.563–64, 571–72, 589

Cendant Corp. Litigation, In re, 264 F.3d 201 (3d Cir. 2001), nn.616, 618, 620, 

622–26, 637–40

Cendant Corp. Prides Litigation, In re, 243 F.3d 722 (3d Cir. 2001), nn.613, 695

Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), nn.261, 324

Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), nn.154, 337
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Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), nn.165, 334

Davis v. Southeastern Pennsylvania Transportation Authority, 924 F.2d 51 (3d 

Cir. 1991), nn.186, 261

Diet Drugs Products Liability Litigation, In re, 582 F.3d 524 (3d Cir. 2009), n.516

Diet Drugs Products Liability Litigation, In re, 401 F.3d 143 (3d Cir. 2005), n.369

Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001), n.301

El Club del Barrio, Inc. v. United Community Corp., 735 F.2d 98 (3d Cir. 1984), 

nn.116, 122, 125

Fine Paper Antitrust Litigation, In re, 751 F.2d 562 (3d Cir. 1984), nn.333, 447, 

470–71, 492, 542, 547

General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, In 

re, 55 F.3d 768 (3d Cir. 1995), n.528

Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414 (3d 

Cir. 1993), nn.203–04

Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000), nn.458, 502, 

548, 639

Hahnemann University Hospital v. All Shore, Inc., 514 F.3d 300 (3d Cir. 2008), 

n.50

Halderman by Halderman v. Pennhurst State School & Hospital, 49 F.3d 939 (3d 

Cir. 1995), n.187

Interfaith Community Organization v. Honeywell International, Inc., 426 F.3d 

694 (3d Cir. 2005), n.170

Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970), n.578

Kean v. Stone, 966 F.2d 119 (3d Cir. 1992), n.156

Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 

540 F.2d 102 (3d Cir. 1976), nn.211, 385, 455, 531

Marshall v. United Steelworkers, 666 F.2d 845 (3d Cir. 1981), nn.566, 597

McDonald v. McCarthy, 966 F.2d 112 (3d Cir. 1992), nn.362, 364, 367

Northeast Women’s Center v. McMonagle, 889 F.2d 466 (3d Cir. 1989), nn.51, 

227, 261

Pawlak v. Greenawalt, 713 F.2d 972 (3d Cir. 1983), nn.583, 597, 607–08

Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. 1993), n.368

Planned Parenthood of Central New Jersey v. Attorney General of State of New 

Jersey, 297 F.3d 253 (3d Cir. 2002), n.17

Powell v. Pennsylvania Railroad, 267 F.2d 241 (3d Cir. 1959), n.401

Prandini v. National Tea, 557 F.2d 1015 (3d Cir. 1975), n.132

Prudential Insurance Co. of America Sales Practices Litigation, In re, 148 F.3d 

283 (3d Cir. 1998), nn.515, 528

Race Tires America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158 (3d Cir. 

2012), n.143
Table of Cases (by Court)

167

Rite Aid Corp. Securities Litigation, In re, 396 F.3d 294 (3d Cir. 2005), nn.458, 

515, 521

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990), nn.211–12, 230

Staten v. Housing Authority of Pittsburgh, 638 F.2d 599 (3d Cir. 1980), n.119

Student Public Interest Research Group v. AT&T Bell Laboratories, 842 F.2d 

1436 (3d Cir. 1988), n.325

Sullivan v. DB Investments, 667 F.3d 273 (3d Cir. 2011), n.458

Synthroid Marketing Litigation, In re, 325 F.3d 974 (3d Cir. 2003) (Synthroid II), 

nn.520, 529, 554

Travelers Casualty & Surety Co. v. Insurance Co. of North America, 609 F.3d 143 

(3d Cir. 2010), n.301

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

Cir. 1996), nn.166, 261

Woodside v. School District of Philadelphia Board of Education, 248 F.3d 129 

(3d Cir. 2001), n.87

Yaron v. Northampton, 963 F.2d 33 (3d Cir. 1992), n.201

Fourth Circuit

Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), n.227

American Booksellers Association v. Virginia, 802 F.2d 691 (4th Cir. 1986), 

n.114

Broyles v. Director, 974 F.2d 508 (4th Cir. 1992), nn.183, 338

Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997), n.79

Brzonkala v. Morrison, 272 F.3d 688 (4th Cir. 2001), n.431

Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), n.160

Country Vintner of North Carolina, LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 

249 (4th Cir. 2013), n.143

Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986), n.151

Demier v. Gondles, 676 F.2d 92 (4th Cir. 1982), n.197

Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir. 1998), 

n.87

Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th Cir. 

1993), n.194

Grissom v. Mills Corp., 549 F.3d 313 (4th Cir. 2008), n.175

Goodwin v. Metts, 973 F.2d 378 (4th Cir. 1992), n.184

Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980), n.51

Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985), n.33

McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980), n.201

MRRM, P.A., In re, 404 F.3d 863 (4th Cir. 2005), n.500
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Newport News Shipbuilding & Dry Dock Co. v. Holiday, 591 F.3d 219 (4th Cir. 

2009), n.174

Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), nn.162–63, 239

Rego v. Westvaco, 319 F.3d 140 (4th Cir. 2003), n.50

Robinson v. Equifax Information Services, LLC, 560 F.3d 235 (4th Cir. 2009), 

n.175

Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994), nn.105, 

158, 187, 380

Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332 (4th Cir. 1996), n.273

Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), n.34

Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), n.165

Thomason v. Schweiker, 692 F.2d 333 (4th Cir. 1982), n.315

United States v. Tobias, 935 F.2d 666 (4th Cir. 1991), nn.450–51, 453–54

Fifth Circuit

Alberti v. Klevenhagen, 896 F.2d 927, vacated on other grounds, 903 F.2d 352 (5th 

Cir. 1990), nn.188, 215, 290, 296, 310

Alberti v. Klevenhagen, 903 F.2d 352 (5th Cir. 1990), n.292

Alizadeh v. Safeway, 910 F.2d 234 (5th Cir. 1990), nn.281, 311

Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001), nn.614, 634

Cahill, In re, 428 F.3d 536 (5th Cir. 2005), n.502

Chemicals Manufacturers Association v. EPA, 885 F.2d 1276 (5th Cir. 1989), 

n.364

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972), n.6

Crane v. Texas, 766 F.2d 193 (5th Cir. 1985), n.201

Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), n.35

Echols v. Parker, 909 F.2d 795 (5th Cir. 1990), n.368

Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 

765 F.2d 1278 (5th Cir. 1985), n.34

Henson v. Columbus Bank & Trust Co., 651 F.2d 320 (5th Cir. 1981), n.321

High Sulfur Content Gasoline Products Liability Litigation, In re, 517 F.3d 220 

(5th Cir. 2008), n.545

International Nickel Co. v. Trammel Crow Distribution Corp., 803 F.2d 150 (5th 

Cir. 1986), n.273

Islamic Center of Mississippi v. Starkville, Mississippi, 876 F.2d 465 (5th Cir. 

1989), n.154

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), nn.150–52, 

243, 465

Johnson v. Rodriguez, 260 F.3d 493 (5th Cir. 2001), n.43

Jones v. Central Bank, 161 F.3d 311 (5th Cir. 1998), n.17
Table of Cases (by Court)

169

Junker v. Cory, 650 F.2d 1349 (5th Cir. 1981), nn.417–18

Keely v. City of Leesville, 897 F.2d 172 (5th Cir. 1990), n.51

King v. McCord, 621 F.2d 205 (5th Cir. 1980), n.322

Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990), n.164

Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir. 1995), nn.300, 

379

McDonald v. Doe, 748 F.2d 1055 (5th Cir. 1984), n.51

McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1976), n.594

Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), nn.242–44, 266

Morales v. Turman, 820 F.2d 728 (5th Cir. 1987), n.93

Nisby v. Court of Jefferson County, 798 F.2d 134 (5th Cir. 1986), n.152

Quave v. Progress Marine, 918 F.2d 33 (5th Cir. 1990), n.367

Ramsey v. Colonial Life Insurance Co. of America, 12 F.3d 472 (5th Cir. 1994), 

nn.358–59

Resolution Trust v. Marshall, 939 F.2d 274 (5th Cir. 1991), n.341

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981), n.364

Scham v. District Courts Trying Criminal Cases, 148 F.3d 554 (5th Cir. 1998), 

n.192

Shimman v. International Union of Operating Engineers, 744 F.2d 1226 (5th 

Cir. 1984), nn.573, 591, 595–96

Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993), nn.283, 287

Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), nn.369–70

Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998), 

nn.466, 476, 488–89

Union Asset Management Holding A.G. v. Dell, Inc., 669 F.3d 632 (5th Cir. 

2012), nn.465–66, 642

Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990), nn.226, 266

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

761 (5th Cir. 1996), nn.215, 297–98

Sixth Circuit

Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir. 2000), n.50

Associated General Contractors of Ohio, Inc. v. Drabik, 250 F.3d 482 (6th Cir. 

2001), n.300

Bailey v. Heckler, 777 F.2d 1167 (6th Cir. 1985), n.315

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005), n.292

Begley v. Secretary of Health & Human Services, 966 F.2d 196 (6th Cir. 1992), 

n.220

Black v. Ryder, 970 F.2d 1461 (6th Cir. 1992), n.590

Bliss v. Holmes, 867 F.2d 256 (6th Cir. 1988), n.579
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Boddy, In re, 950 F.3d 334 (6th Cir. 1991), n.666

Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), n.531

Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991), nn.236, 325

Glass v. Secretary of Health & Human Services, 822 F.2d 19 (6th Cir. 1987), 

n.327

Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), nn.197, 219

Granada Investments v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992), n.534

Guidry v. International Union of Operating Engineers, 882 F.2d 929 (6th Cir. 

1989), n.590

Kelley v. Metropolitan County Board of Education, 773 F.2d 677 (6th Cir. 1985), 

nn.154, 362, 364

Louisville Black Police Officers Organization v. City of Louisville, 700 F.2d 268 

(6th Cir. 1983), n.183

Morgan v. Union Metal, 757 F.2d 792 (6th Cir. 1985), n.368

Murphy v. International Union of Operating Engineers, 774 F.2d 114 (6th Cir. 

1985), n.596

Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991), n.196

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 (6th Cir. 1974), nn.502, 575, 

577

Rawlings v. Prudential-Bach Properties, Inc., 9 F.3d 513 (6th Cir. 1993), n.461

Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983), n.606

Toth v. UAW, 743 F.2d 398 (6th Cir. 1984), n.599

Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988), nn.35, 370

Wolfe v. Perry, 412 F.3d 707 (6th Cir. 2005), n.311

Woolridge v. Marlene Industries Corp., 898 F.2d 1169 (6th Cir. 1990), n.208

Seventh Circuit

Anderson v. AB Painting & Sandblasting, Inc., 578 F.3d 542 (7th Cir. 2009), 

n.263

Bailey v. Meister Brau, 535 F.2d 982 (7th Cir. 1976), n.584

Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), n.157

Bigby v. Chicago, 927 F.2d 1426 (7th Cir. 1991), n.105

Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n.192

Cange v. Stotler & Co., 913 F.2d 1204 (7th Cir. 1990), n.262

Chicago, Milwaukee, St. Paul & Pacific Railroad, In re, 840 F.2d 1308 (7th Cir. 

1988), n.420

Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), nn.149, 255, 274

Connolly v. National School Bus Service, Inc., 177 F.3d 593 (7th Cir. 1999), 

n.278
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171

Continental Illinois Securities Litigation, In re, 962 F.2d 566 (7th Cir. 1992), 

nn.330, 336, 462, 467, 470–71, 491, 535

Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), n.6

Evans v. City of Evanston, 941 F.2d 473 (7th Cir. 1991), nn.336, 444–45, 490, 

681–83

Exchange National Bank of Chicago v. Daniels, 763 F.2d 286 (7th Cir. 1985), 

n.367

Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990), n.301

Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994), n.528

Gekas v. Attorney Registration & Disciplinary Commission, 793 F.2d 846 (7th 

Cir. 1986), n.324

Gusman v. Unisys, 986 F.2d 1146 (7th Cir. 1993), n.159

Hamilton v. Daley, 777 F.2d 1207 (7th Cir. 1985), n.313

Harman v. Lyphomed, 945 F.2d 969 (7th Cir. 1991), n.461

Haroco, Inc. v. American National Bank & Trust Co., 38 F.3d 1429 (7th Cir. 

1994), n.143

Holbrook v. Pitt, 748 F.2d 1168 (7th Cir. 1984), n.390

Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), nn.235, 376

Johnson v. Lafayette Fire Fighters Association Local 472, 51 F.3d 726 (7th Cir. 

1995), nn.17, 252–53

Leffler v. Meer, 936 F.2d 981 (7th Cir. 1991), n.312

Libby v. Illinois High School Association, 921 F.2d 96 (7th Cir. 1990), n.36

Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987), n.214

Lowrance v. Hacker, 966 F.2d 1153 (7th Cir. 1992), nn.98, 101

McCarter v. Retirement Plan for District Managers of American Family 

Insurance Group, 540 F.3d 649 (7th Cir. 2008), n.368

Mirfasihi v. Fleet Mortgage Corp., 356 F.3d 781 (7th Cir. 2004), n.131

Munson v. Friske, 754 F.2d 683 (7th Cir. 1985), n.311

Murray v. GMAC Mortgage Corp., 434 F.3d 948 (7th Cir. 2006), n.131

Ohio-Sealy Mattress, In re, 776 F.2d 646 (7th Cir. 1985), n.330

Overseas Development Disc Corp. v. Sangamo Construction Co., 840 F.2d 1319 

(7th Cir. 1988), n.549

Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), n.34

People Who Care v. Rockford Board of Education, 921 F.2d 132 (7th Cir. 1991), 

nn.56, 370

Pickett v. Sheridan Health Care Center, 664 F.3d 632 (7th Cir. 2011), nn.171–73

Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992), nn.221, 234

Reynolds v. Beneficial National Bank, 288 F.3d 277 (7th Cir. 2002), nn.411, 469

Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), n.101
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Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988), nn.296, 384, 447, 

471, 527

Smith v. Great American Restaurants, 969 F.2d 430 (7th Cir. 1992), n.339

Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129 (7th 

Cir. 1987), nn.236, 241

Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir. 1999), n.181

Spellan v. Board of Education, 59 F.3d 642 (7th Cir. 1995), n.234

Starks v. George Court Co., 937 F.2d 311 (7th Cir. 1991), n.115

Sutton v. Bernard, 504 F.3d 688 (7thCir. 2007), n.510

Synthroid Marketing Litigation, In re, 264 F.3d 712 (7th Cir. 2001) (Synthroid I), 

nn.208, 504–05, 510

Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), n.364

Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), nn.213, 330, 714

Trans Union Corp. Privacy Litigation, In re, 629 F.3d 741 (7th Cir. 2011), n.510

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), nn.183, 201, 232, 377

Eighth Circuit

Bishop v. Committee on Professional Ethics, 686 F.2d 1278 (8th Cir. 1982), n.35

Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir. 1984), n.165

Elliott v. Sperry Rand Corp., 680 F.2d 1225 (8th Cir. 1982), n.410

Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382 (8th Cir. 1977), 

n.594

Gates v. Central Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 1986), n.368

Gilbert v. Little Rock, Arkansas, 867 F.2d 1063 (8th Cir. 1989), n.236

Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982), n.33

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), n.282

Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981), n.317

Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992), n.23

Independent School District v. Digre, 893 F.2d 987 (8th Cir. 1990), n.208

Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), n.235

Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992), nn.106–07

Jenkins v. Missouri, 931 F.2d 1273 (8th Cir. 1991), n.300

Johnson v. HUD, 939 F.2d 586 (8th Cir. 1991), n.585

Johnston v. Comerica Mortgage Co., 83 F.3d 241 (8th Cir. 1996), n.461

Linquist v. Bowen, 839 F.2d 1321 (8th Cir. 1988), nn.431, 588

Macdissi v. Valmont Industries, 856 F.2d 1054 (8th Cir. 1988), n.217

Maristuen v. National States Insurance Co., 57 F.3d 673 (8th Cir. 1995), n.366

Milton v. Des Moines, Iowa, 47 F.3d 944 (8th Cir. 1995), n.256

Parke v. First Reliance Standard Life Insurance Co., 368 F.3d 999 (8th Cir. 2004), 

n.50
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173

Pinkham v. Camex, Inc., 84 F.3d 292 (8th Cir. 1996), nn.205, 227

Reel v. Arkansas Department of Corrections, 672 F.2d 693 (8th Cir. 1982), 

nn.51, 201

Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota, 

771 F.2d 1153 (8th Cir. 1985), n.159

Skokos v. Rhoades, 440 F.3d 957 (8th Cir. 2006), nn.51–52

Standley v. Chilhowee R-IV School District, 5 F.3d 319 (8th Cir. 1993), n.143

Tyler v. Corner Construction Corp., 167 F.3d 1202 (8th Cir. 1999), n.121

Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069 (8th Cir. 

1991), n.229

Wray v. Clarke, 151 F.3d 807 (8th Cir. 1998), nn.126, 128

Ninth Circuit

Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992), n.582

Balla v. Idaho, 677 F.3d 910 (9th Cir. 2012), n.47

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

n.112

Benda v. Grand Lodge, 584 F.2d 308 (9th Cir. 1978), n.580

Bennett v. Yoshina, 259 F.3d 1097 (9th Cir. 2001), n.43

Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299 (9th Cir. 

1979), n.594

Bluetooth Headset Products Liability Litigation, In re, 654 F.3d 935 (9th Cir. 

2011), nn.130–31, 469

B.P. North American Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975 (9th 

Cir. 1986), n.399

Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), n.6

Burroughs v. Board of Trustees, 542 F.2d 1128 (9th Cir. 1976), n.587

Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991), nn.200, 237

Cann v. Carpenters’ Pension Trust Fund for Northern California, 989 F.2d 313 

(9th Cir. 1993), nn.50, 308

Cantwell v. San Mateo, 631 F.2d 631 (9th Cir. 1980), nn.587, 602

Cavanaugh, In re, 306 F.3d 726 (9th Cir. 2002), nn.617, 629–30, 632–36

Church of Scientology v. United States Postal Service, 700 F.2d 486 (9th Cir. 

1983), nn.319–20

Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986), n.238

Coalition for Clean Air v. Southern California Edison, 971 F.2d 219 (9th Cir. 

1992), n.376

Corder v. Brown, 25 F.3d 833 (9th Cir. 1994), n.302

Cunningham v. Los Angeles, 859 F.2d 705 (9th Cir. 1988), n.275

Curran v. Department of Treasury, 805 F.2d 1406 (9th Cir. 1986), n.156
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Davis v. Mason County, 927 F.2d 1473 (9th Cir. 1991), nn.142, 158

Davis v. San Francisco, 976 F.2d 1536 (9th Cir. 1992), nn.142, 159, 165, 198

Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980), n.208

Dexter v. Kirschner, 984 F.2d 979 (9th Cir. 1992), n.33

Donovan v. Local Union 70, 661 F.2d 1199 (9th Cir. 1981), n.566

Eastwood v. National Enquirer, 123 F.3d 1249 (9thCir. 1997), n.17

Edwards v. Heckler, 789 F.2d 659 (9th Cir. 1985), n.587

Fischel v. Equitable Life Assurance Society of United States, 307 F.3d 997 (9th 

Cir. 2002), n.523

Florida v. Dunne, 915 F.2d 542 (9th Cir. 1990), nn.463–64, 524–25

Ford v. Long Beach Unified School District, 461 F.3d 1087 (9th Cir. 2006), n.87

Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir. 

1989), nn.216, 325

Friend v. Kolodzieczak, 72 F.3d 1386 (9th Cir. 1995), n.300

Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992), nn.158, 294, 332, 335

Greater Los Angeles Council on Deafness v. Community Television of Southern 

California, 813 F.2d 217 (9th Cir. 1987), n.187

Grove v. Mead School District, 753 F.2d 1528 (9th Cir. 1985), n.80

Guadamuz v. Bowen, 859 F.2d 762 (9th Cir. 1988), n.315

Guam Society of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir. 

1996), n.292

Hatrock v. Jones & Co., 750 F.2d 767 (9th Cir. 1984), n.340

Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989), n.235

Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), n.52

Hill, In re, 775 F.2d 1037 (9th Cir. 1985), nn.431, 588

Home Savings Bank v. Gillam, 952 F.2d 1152 (9th Cir. 1991), n.585

Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975), n.152

Kinney v. International Brotherhood of Electrical Workers, 939 F.2d 690 (9th 

Cir. 1991), nn.492–93, 605, 607–08

Klawock, City of, v. Gustafson, 585 F.2d 428 (9th Cir. 1978), nn.422, 425–26

Laguna v. Coverall North America, Inc., 753 F.3d 918 (9th Cir. 2014), n.134

Lewis v. Anderson, 692 F.2d 1267 (9th Cir. 1982), nn.577–78

Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir. 1966), 

n.423

Maldonado v. Lehman, 811 F.2d 1341 (9th Cir. 1987), n.159

Mancini v. Dan P. Plute, Inc., 358 F. App’x 886 (9th Cir. 2009), n.174

Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1990), n.51

McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), n.420

Mendez v. County of San Bernardino, 540 F.3d 1109 (9th Cir. 2008), n.195

Miller v. Los Angeles, 827 F.2d 617 (9th Cir. 1987), n.311
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175

Miller-Wohl Co. v. Commissioner of Labor & Industry, State of Montana, 694 

F.2d 203 (9th Cir. 1982), n.94

Moore v. Matthews, 682 F.2d 830 (9th Cir. 1982), n.160

Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996), nn.147, 152, 254

Muckleshoot Tribe v. Puget Sound Power & Light Co., 875 F.2d 695 (9th Cir. 

1989), nn.123, 125

Northern Plains Resource Council v. EPA, 670 F.2d 847 (9th Cir. 1982), n.362

Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), n.583

Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989), n.463

Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000), nn.548, 644

Prison Legal News v. Schwarzenegger, 608 F.3d 446 (9th Cir. 2010), n.175

Reiser v. Del Monte Properties, 605 F.2d 1135 (9th Cir. 1979), nn.414, 584

Rickley v. County of Los Angeles, 654 F.3d 950 (9th Cir. 2011), n.89

Rodriguez v. Disner, 688 F.3d 645 (9th Cir. 2012), n.408

Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988), n.370

Schultz v. Hembree, 975 F.2d 572 (9th Cir. 1992), nn.232, 376

Sederquist v. Court, 861 F.2d 554 (9th Cir. 1988), nn.600–01

Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir. 1990), 

nn.464, 552

Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981), n.430

Southerland v. International Longshoremen’s Union, 845 F.2d 796 (9th Cir. 

1987), nn.563, 569, 604

Spain v. Mountanos, 690 F.2d 742 (9th Cir. 1982), n.202

Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003), n.134

United States v. Imperial Irrigation District, 595 F.2d 525 (9th Cir. 1979), n.586

United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equipment, Inc., 89 

F.3d 574 (9th Cir. 1996), n.97

United Steelworkers v. Phelps Dodge, 896 F.2d 403 (9th Cir. 1990), n.324

Vincent v. Hughes Air West, Inc., 557 F.2d 759 (9th Cir. 1977), n.382

Washington Public Power Supply System Securities Litigation, In re, 19 F.3d 

1291 (9th Cir. 1994), nn.298, 461, 464, 528

Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), n.35

Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir. 1997), 

nn.389, 487

Wing v. Asarco Inc., 114 F.3d 986 (9th Cir. 1997), n.293

Zamora v. Local 11, 817 F.2d 566 (9th Cir. 1987), n.570
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Tenth Circuit

Aguinaga v. United Food & Commercial Workers International Union, 993 F.2d 

1480 (10th Cir. 1993), n.593

American Council of the Blind v. Romer, 962 F.2d 1501 (10th Cir. 1992), n.118

Art Janpol Volkswagen v. Fiat Motors of North America, 767 F.2d 690 (10th Cir. 

1985), n.367

Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir. 1988), nn.461, 500, 548, 

552

Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir. 1998), nn.167, 

191, 206, 325

Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th Cir. 2001), n.65

Cooper v. Utah, 894 F.2d 1169 (10th Cir. 1990), nn.112, 276–77

Dahlem v. Board of Education, 901 F.2d 1508 (10th Cir. 1990), nn.35, 120

Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (10th Cir. 1999), 

nn.125, 127

Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001), n.43

Homeward Bound, Inc. v. Hissom Memorial Hospital, 963 F.2d 1352 (10th Cir. 

1992), n.376

Iqbal v. Golf Course Superintendents, 900 F.2d 227 (10th Cir. 1990), n.201

Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995), n.235

Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984), nn.431, 588

Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987), nn.218, 220

Mallinson Montague v. Pocrnick, 224 F.3d 1224 (10th Cir. 2000), n.714

Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986), n.329

MidAmerica Federal Savings & Loan v. Shearson/American, 962 F.2d 1470 (10th 

Cir. 1992), nn.301, 340

Phelps v. Washburn University of Topeka, 807 F.2d 153 (10th Cir. 1986), n.368

Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991), n.52

Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), nn.160, 206, 214

Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998), nn.227, 315

Rosenbaum v. MacAllister, 64 F.3d 1439 (10th Cir. 1995), n.604

Roth v. Green, 466 F.3d 1179 (10th Cir. 2006), n.311

Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990), nn.183, 196, 299

Uselton v. Commercial Lovelace Motor Freight, Inc., 9 F.3d 849 (10th Cir. 

1993), n.408

Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995), nn.360–61
Table of Cases (by Court)

177

Eleventh Circuit

ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999), nn.158, 380

Andrews v. Employees’ Retirement Plan, 938 F.2d 1245 (11th Cir. 1991), n.368

Andrews v. United States, 122 F.3d 1367 (11th Cir. 1997), nn.236, 264

BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045 (11th Cir. 

1994), n.300

Camden I Condominium Association v. Dunkle, 946 F.2d 768 (11th Cir. 1991), 

nn.460, 501, 546

Columbus Mills v. Freeland, 918 F.2d 1575 (11th Cir. 1990), n.219

Crowder v. Housing Authority of Atlanta, 908 F.2d 843 (11th Cir. 1990), n.117

Cullens v. Georgia Department of Transportation, 29 F.3d 1489 (11th Cir. 1994), 

nn.147, 264–65

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982), n.34

Dowdell v. Apopka, Florida, 698 F.2d 1181 (11th Cir. 1983), nn.196, 199

Durrett v. Jenkins Brickyard, 678 F.2d 911 (11th Cir. 1982), n.311

Erkins v. Bryan, 785 F.2d 1538 (11th Cir. 1986), nn.574, 595

Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989), nn.51, 201

Fort v. Roadway Express, 746 F.2d 744 (11th Cir. 1984), n.368

Gray ex rel. Alexander v. Bostic, 613 F.3d 1035 (11th Cir. 2010), n.298

Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), n.216

Kahane v. UNUM Life Insurance Co. of America, 563 F.3d 1210 (11th Cir. 

2009), n.50

Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541 (11th Cir. 1985), nn.152, 

311

Lattimore v. Oman Construction, 868 F.2d 437 (11th Cir. 1989), nn.296, 364

Loggerhead Turtle v. County Council, 307 F.3d 1318 (11th Cir. 2002), n.65

Markham v. International Association of Bridge, Structural & Ornamental Iron 

Workers, 901 F.2d 1022 (11th Cir. 1990), nn.580–81

Murphy v. Reliance Standard Life Insurance Co., 247 F.3d 1313 (11th Cir. 2001), 

n.308

NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), n.220

Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir. 1988), 

nn.202, 210, 219–20, 226, 295, 315, 323, 325–26

Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), n.56

Ray v. U.S. Department of Justice, 87 F.3d 1250 (11th Cir. 1996), n.87

Taylor v. Fort Lauderdale, 810 F.2d 1551 (11th Cir. 1987), n.35

Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332 (11th Cir. 2001), 

n.17

Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), n.233
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Waters v. International Precious Metals Co., 190 F.3d 1291 (11th Cir. 1999), 

nn.389, 475, 487, 648

Williams v. Roberts, 904 F.2d 634 (11th Cir. 1990), n.227

District of Columbia Circuit

Abbott, Puller & Myers v. Peyser, 124 F.2d 524 (D.C. Cir. 1941), n.398

American Association of Marriage v. Brown, 593 F.2d 1365 (D.C. Cir. 1979), 

n.592

American Federation of Government Employees v. FLRA, 944 F.2d 922 (D.C. 

Cir. 1991), n.156

Bebchick v. Washington Metropolitan Area Transit Commission, 805 F.2d 396 

(D.C. Cir. 1986), n.527

Blazy v. Tenet, 194 F.3d 90 (D.C. Cir. 1999), n.90

Burka v. United States Department of Health & Human Services, 142 F.3d 1286 

(D.C. Cir. 1998), nn.87, 91

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), nn.176–77, 331, 540, 543

Covington v. District of Columbia, 57 F.3d 1101 (D.C. Cir. 1995), nn.168, 656

Davis v. U.S. Department of Justice, 610 F.3d 750 (D.C. Cir. 2010), n.48

Davis County Solid Waste Management v. EPA, 169 F.3d 755 (D.C. Cir. 1999), 

n.158

Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982), n.82

Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n.213

Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986), n.126

Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675 (D.C. Cir. 1996), n.368

Goos v. National Association of Realtors, 68 F.3d 1380 (D.C. Cir. 1995), n.235

Grace v. Burger, 763 F.2d 457 (D.C. Cir. 1985), nn.431, 588

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), n.35

Hyman Construction Co. v. Brooks, 963 F.2d 1532 (D.C. Cir. 1992), n.231

Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999), n.90

Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir. 1957), n.401

Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), n.113

Meese, In re, 907 F.2d 1192 (D.C. Cir. 1990), n.165

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), n.80

Montgomery & Associates, Inc. v. Commodity Futures Trading Commission, 

816 F.2d 783 (D.C. Cir. 1987), n.363

National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 

1319 (D.C. Cir. 1982), nn.315, 318

National Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir. 1975), 

n.391

New Jersey v. EPA, 703 F.3d 110 (D.C. Cir. 2012), n.165
Table of Cases (by Court)

179

Olson, In re, 884 F.2d 1415 (D.C. Cir. 1989), nn.185, 190, 214

Petties v. District of Columbia, 227 F.3d 469 (D.C. Cir. 2000), n.371

Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984), n.431

Role Models AM, Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004), n.714

Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988), 

nn.157, 168

Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969), n.424

Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (D.C. Cir. 1981), n.92

Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), n.65

Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), n.460

Thomas v. National Football League Players Association, 273 F.3d 1124 (D.C. 

Cir. 2001), n.262

Usery v. Local Union No. 639, International Brotherhood of Teamsters, 543 F.2d 

369 (D.C. Cir. 1976), nn.563–64, 603

Whittier v. Emmett, 281 F.2d 24 (D.C. Cir. 1960), n.415

Federal Circuit

Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988), n.300

Orenshteyn v. Citrix Systems, Inc., 691 F.3d 1356 (Fed. Cir. 2012), n.368

Raney v. Federal Bureau of Prisons, 222 F.3d 927 (Fed. Cir. 2000), n.156

Bankruptcy Courts

Chin, In re, 31 B.R. 314 (Bankr. S.D.N.Y. 1984), n.56

Hepburn, In re, 84 B.R. 855 (Bankr. S.D. Fla. 1988), n.56

District Courts

Arkansas

Hollowell v. Gravett, 723 F. Supp. 107 (E.D. Ark. 1989), n.289

California

California Micro Devices Securities Litigation, In re, 168 F.R.D. 257 (N.D. Cal. 

1996), n.689

Commtouch Software Ltd. Securities Litigation, In re, No. 01-C-00719 (N.D. 

Cal. June 27, 2001), n.637

Freitag v. California Department of Corrections, No. C00-2275, 2012 WL 

5389839 (N.D. Cal. Nov. 5, 2012), nn.747–48

Gemstar-TV Guide International, Inc. Securities Litigation, In re, 209 F.R.D. 447 

(C.D. Cal. 2002), n.641
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Oracle Securities Litigation, In re, 131 F.R.D. 688 (N.D. Cal. 1990), nn.615, 685, 

687

Oracle Securities Litigation, In re, 132 F.R.D. 538 (N.D. Cal. 1990), nn.615, 685, 

688

Quintus Securities Litigation, In re, 201 F.R.D. 475 (N.D. Cal. 2001), nn.631, 689

Wells Fargo Securities Litigation, In re, 156 F.R.D. 223 (N.D. Cal. 1994), n.689

Wenderhold v. Cylink Corp., 189 F.R.D. 570 (N.D. Cal. 1999), n.689

Delaware

Warfarin Sodium Antitrust Litigation, In re, 212 F.R.D. 231 (D. Del. 2002), n.695

District of Columbia

Act Now to Stop War and End Racism Coal. v. District of Columbia, 286 F.R.D. 

145 (D.D.C. 2012), n.169

Laffey v. Northwest Airlines, 572 F. Supp. 354 (D.D.C. 1983), nn.168, 174–75,

654–55, 657–58, 739

McKenzie v. Kennickell, 669 F. Supp. 529 (D.D.C. 1987), n.55

Rooths v. District of Columbia, 802 F. Supp. 2d 56 (D.D.C. 2011), n.657

Salazar v. District of Columbia, 123 F. Supp. 8 (D.D.C. 2000), n.169

Sykes v. District of Columbia, 870 F. Supp. 2d 86 (D.D.C. 2012), nn.657–58

Hawaii

Feher v. Department of Labor & Industrial Relations, 561 F. Supp. 757 (D. Haw. 

1983), n.57

Illinois

Amino Acid Lysine Antitrust Litigation, In re, 918 F. Supp. 1190 (N.D. Ill. 1996), 

n.691

AT&T Mobility Wireless Data Services Sales Tax Litigation, In re, 792 F. Supp. 

2d 1028 (N.D. Ill. 2011), n.512

Continental Illinois Securities Litigation, In re, 572 F. Supp. 931 (N.D. Ill. 1983), 

nn.705–06, 733–34

Duran v. Town of Cicero, No. 01-C-6858, 2012 WL 1279903 (N.D. Ill. Apr. 16, 

2012), nn.709–11, 713–14

Pavlik v. FDIC, No. 10C816, 2011 WL 5184445 (N.D. Ill. Nov. 1, 2011), n.513
Table of Cases (by Court)

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Indiana

Heekin v. Anthem, Inc., No. 1:05-cv-01908, 2012 WL 5878032 (S.D. Ind. Nov. 

20, 2012), n.514

Louisiana

Braud v. Transport Service Co. of Illinois, No. 05-1898c/w05-1977, 2010 U.S.

Dist. LEXIS 93433 (E.D. La. Aug. 17, 2010), n.508

Educational Testing Service Praxis Principles of Learning & Teaching: Grades 7–

12 Litigation, In re, 447 F. Supp. 2d 612 (E.D. La. 2006), n.508

Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978), n.57

Turner v. Murphy Oil USA, Inc., 472 F. Supp. 2d 830 (E.D. La. 2007), nn.507, 

514

Maine

Nensel v. Peoples Heritage Financial Group, Inc., 815 F. Supp. 26 (D. Me. 1993), 

n.528

Nilsen v. York County, 400 F. Supp. 266 (D. Me. 2005), n.503

Sylvester v. Cigna Corp., 369 F. Supp. 2d 34 (D. Me. 2005), n.475

Massachusetts

Relafin Antitrust Litigation, In re, 231 F.R.D. 52 (D. Mass. 2005), n.508

TJX Cos. Retail Security Breach Litigation, In re, 584 F. Supp. 2d 395 (D. Mass. 

2008), n.486

Minnesota

United Health Group, Inc. PSLRA Litigation, In re, 643 F. Supp. 2d 1094 (D. 

Minn. 2009), n.649

New Hampshire

Cabletron Systems, Inc. Securities Litigation, In re, 239 F.R.D. 30 (D.N.H. 2006), 

n.514

New Jersey

Cendant Corp. Litigation, In re, 182 F.R.D. 144 (D.N.J. 1998), n.619

Fidelity Bancorporation Securities Litigation, In re, 750 F. Supp. 160 (D.N.J. 

1990), n.520

Lucent Technologies, Inc., Securities Litigation, In re, 194 F.R.D. 137 (D.N.J. 

2000), n.628
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New York

Agent Orange Product Liability Litigation, In re, 611 F. Supp. 1296 (E.D.N.Y. 

1985), n.499

Ashanti Goldfields Securities Litigation, In re, No. CV-00-717, 2005 WL 3050284 

(E.D.N.Y. Nov. 15, 2005), n.649

Auction Houses Antitrust Litigation, In re, 197 F.R.D. 71 (S.D.N.Y. 2000), n.691

Bolar Pharmaceuticals v. Gackenbach, 800 F. Supp. 1091 (E.D.N.Y. 1992), n.528

Global Crossing Securities & ERISA Litigation, In re, 225 F.R.D. 436 (S.D.N.Y. 

2004), n.649

Paris v. Metropolitan Life Insurance, 94 F. Supp. 792 (S.D.N.Y. 1947), n.415

Parker v. Time Warner Entertainment Co., L.P., 631 F. Supp. 2d 242 (E.D.N.Y. 

2009), n.486

Pfizer Inc. Securities Litigation, In re, 233 F.R.D. 334 (S.D.N.Y. 2005), n.641

Razorfish Inc. Securities Litigation, In re, 143 F. Supp. 2d 304 (S.D.N.Y. 2001), 

n.641

Russell v. Board of Plumbing Examiners, 74 F. Supp. 2d 349 (S.D.N.Y. 1999), 

n.96

Ohio

Lonardo v. Travelers Indemnity Co., 706 F. Supp. 2d 766 (N.D. Ohio 2010), 

nn.645, 649

Nicodemus v. Chrysler Corp., 445 F. Supp. 559 (N.D. Ohio 1977), n.57

West Side Women’s Service v. Cleveland, 594 F. Supp. 299 (N.D. Ohio 1984), 

n.55

Pennsylvania

Avandia Marketing, Sales Practices & Products Liability Litigation, In re, No. 07-

md-01871, 2012 WL 6923367 (E.D. Pa. Oct. 19, 2012), nn.477, 516, 669

Diet Drugs Products Liability Litigation, In re, 553 F. Supp. 2d 442 (E.D. Pa. 

2008), nn.516–18

Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D. Pa. 1976), n.400

Puerto Rico

Puerto Rican Cabotage Antitrust Litigation, In re, 815 F. Supp. 2d 448 (D.P.R. 

2011), n.508
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Texas

Heartland Payment Systems, Inc. Customer Data Security Breach Litigation, In 

re, 851 F. Supp. 2d 1040 (S.D. Tex. 2012), nn.496, 498, 506–07, 670, 678

Virginia

Oster v. Bowen, 682 F. Supp. 853 (E.D. Va. 1988), n.585

West Virginia

Kay Co. v. Equitable Production Co., 749 F. Supp. 2d 455 (S.D. W. Va. 2010), 

n.508

Loudermilk Services, Inc. v. Marathon Petroleum Co., 623 F. Supp. 2d 713 (S.D. 

W. Va. 2009), n.509

Wisconsin

Lawnmower Engine Horsepower Marketing & Sales Practices Litigation, In re,

733 F. Supp. 2d 997 (E.D. Wis. 2010), nn.507, 511
The Federal Judicial Center 

Board 

The Chief Justice of the United States, Chair 

Judge Catherine C. Blake, U.S. District Court for the District of Maryland 

Judge Curtis L. Collier, U.S. District Court for the Eastern District of Tennessee 

Magistrate Judge Jonathan W. Feldman, U.S. District Court for the Western District of 

New York 

Judge Kent A. Jordan, U.S. Court of Appeals for the Third Circuit 

Judge Michael M. Melloy, U.S. Court of Appeals for the Eighth Circuit 

Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California 

Chief Judge C. Ray Mullins, U.S. Bankruptcy Court for the Northern District of Georgia 

James C. Duff, Director of the Administrative Office of the U.S. Courts 

Director 

Judge Jeremy D. Fogel 

Deputy Director 

John S. Cooke 

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 

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The organization of the Center reflects its primary statutory mandates. The Education 

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