06-1212-cv

Porzig v. Dresdner Kleinwort UNITED STATE S COURT OF APPEA LS FOR THE SEC OND CIRC UIT August Term, 2006 (Argued: February

16, 2007 Decided: August 7, 2007)

Docket No. 06-1212-cv

-------------- -------------- -------------- -------------- ------------x BERNHARD B. PORZI G,

Plaintiff-Appellant ,

-v.- DRESDNER, KLEI

NWORT, BE

NSON, NOR

TH AMERI CA LL C and DRESDNER BANK AG,

Defendants-Appellees ,

-------------- -------------- -------------- -------------- -----------x Bef ore : HO N. G UIDO CALA BRE SI, HON. BA

RRINGTON D. PAR

KER, HON. PETER W. HALL , Circuit Judges

. Plaintiff-Appellant Bernhard Porzig appeals fr om an order of the United States District Court for the Southern District of New York (Jones, J. ) denying his motion to vacate and modify an arbitration award. VACATED and REMANDED. Michael K. O’Donnell, Law Office of Michael K. O’Donne ll, Gree

nwich, CT , for Plai

ntiff-A ppellant

. Barry Cozier (Kenneth J. Kelly, David J. Clark, of counsel, on the brief

) Epstein, Becker & Gre en, P.C., New York, NY, for Defendants-Appellee s.2

HALL , Circuit Judge : Bernha rd Porzig seeks va catur of a modifie d arbitra

tion awar d. The aw ard was

the resu lt of Porzig’s success in an underly ing arbitration proceeding in which Porzig ha d alleged intentiona

l age di scrimina

tion in viola

tion of Sta

te and F ederal

laws. On a

ppeal, Po rzig ass erts that t he aw ard h e rec eive d for

attor ney ’s fe es wa s issued in

manif est di sreg ard o f the

law. We find that a portion of the award in this case was issued in violation of the Fede ral Arbitration Act and that additional significant portions were issued in manifest disreg ard of the law based on the
converg ence of

multiple f

actors im plicating the integ rity of the aw ard. Ac cordingly, we vaca te the orde r of the D istrict Cou

rt, and r emand to t

hat cour t for fur ther pro ceeding s. I. Fact ual and Pro cedural Ba ckground Porzig was hired as Vice President of Central Ba nk Sales by Dresdne

r Securities, a subsidiary of Dre sdner Bank, in December 1995. As a c ondition of his employment, Porzig was required by

the NASD, the industry self-r egulatory organization, to sign and execute a standard “U-4” f orm conta

ining an agree ment to ar

bitrate a ny f uture dis putes. Por

zig agr eed he w ould “arbitrate any

dispute, claim or controversy that may arise be

tween [himself] and [his] firm . . . that is required to be arbitrated under the rules, constitutions, or by -laws of the [NASD].” The NASD regularly

required such agreeme

nts as a condition of employment. See id. at 198 & n.1. Accord ing to thi s pre-di spute ag

reemen t, the ar bitration was to be

conducte d in accordance with NASD’s Code of Arbitration Procedure. In Janu ary of 1998, Porzig was

fired. I nitially, he file d an acti on aga inst the De fendant s Dresdner, Kleinwort, Benson, North Americ a LL C and Dresdner Bank (“Dre sdner”) in the Southern District of New York making a claim under the Age Discrimination in Employme nt1 Section 62 6(b) of t he ADEA, 29 U.S.C. § 6 26(b), in corpora tes by refer ence 29 U.S.C. § 216(b) of the Fair L abor Standards Act, which states, in relevant part, that “[t]he court . . . shall, in addition to any judgment awarded to the plaintiff, . . . allow a reasonable attorne y’s fee to be paid by the def

endant, and costs of the action.” See DiRussa v. Dean Witter Re ynolds Inc. , 121 F.3d 818, 822 (2d Cir. 1997) (alteration in original). 3 Act (“ADEA”), 29 U.S.C. § 623, et. seq . Upon motion by Dresdner, the District Court stayed the action because the dispute was subject to the arbitration provisions of the ag reement Porzig had signed upon entering employ ment. Thereafter, the parties submitted their dispute to a three member Arbitration Panel (“Panel”) at the NASD. The Panel concluded that “age wa s a factor” in Dresdners’ dec ision to terminate Porzig’s employment. The Panel awarded Porzig $96,200 in compensatory damages, plus $27,679 of interest , and $96, 200 in punit ive dama ges. Con trary to statutor

y r equirem ents, 1 the Panel did not award Porzig attorney ’s fees or costs a

nd, in fac t, assess ed $13,84 0.75 ag ainst Porzig in forum, filing, and arbitrators’ fees (her einafter the “Original Awar d”). Porz ig appe aled t he Ori ginal A ward t o the S outh ern Di stri ct of N ew York , seek ing a modification to provide him an award of attorney ’s fees and costs and to vacate the Panel’s assessment against him of the various fees. The District Court (Jones, J. ) concluded the arbitrators had acted in manifest disrega rd of the law with respect to attorney ’s fees, finding there had been “ample evidence to support the conc lusion that the arbitrators were made aware of the applicable law but either refused to apply it or ignored it altogether.” The c ourt remanded the

case to t he Panel t o determ ine the r easonab le attorney ’s fees

to which Porzig was

entitled a nd to fashion a new awa rd. Althou

gh in its in

itial orde r the Dist rict Cour t denied Porzig’s mo tion to vacate or modify

the award as to costs, it subsequently granted his motion when it reconsidered its decision on that point. Concluding on the motion to reconsider that the arbitrators had in fact4

disregarded the law with respec t to costs “just as they did with respect to attorne y’s fee s,” the court vacated the original awa rd as to costs and instructed the Panel also to modify the award and

asses s the $ 13,84 0.75 i n cost s again st Def endan ts, n ot Po rzig. On remand, Porzig submitted to the Panel a fee application that consisted of an Attorne y Affirmation and a Memorandum of L aw. The application included detailed billing records outlining each fee request delineate d on a spreadsheet that set out the date of the service , a description of the service, the time spent, and the rate cha rged, documenting a total of $249,996.95 in attorney’s fe es and $12,050.09 in costs. The billing records included entries for the representation Attorney Michael K. O’Donnell had provided before the D istrict Court

success fully

arguin g Porzig ’s righ

t to rece ive attor

ney ’s fees and costs . Porzig explicitly informed the Panel that he wa s entitled

to attorne

y’ s fees to

compensa

te him for the time hi s attorne y sp ent prep aring t

he fee a pplication and for

litigati ng the f ee clai m. In s upport of this position, he cited Gagne v. Maher , 594 F.2d 336, 344 (2d Cir. 1979), aff’d on other grounds , 448 U.S. 122 (1980), which clearly states that attorneys a

re to be recompensed for time spent litigati ng attor ney ’s fees

. For their part, Dresdner filed an a ffidavit in opposition to Porzig’s fee application arguing contrary to law, see Blanchard v. Bergeron , 489 U.S. 87 (1989), that Porzig’s contingency fee arrangement with Mr. O’Donnell “should set the maximum limit ($73,359.67) on the amount Porzig can recover under the fe e-shifting statute.” To that end, Dresdner re quested the Panel require Porzig to disclose the details of his fee agr eement with his counsel to help the Panel determine the new award. Dresdne r suggested, also contrary to law, see 29 U.S.C. § 626(b); Hagelthorn v. Kennecott Corp. , 710 F.2d 76, 86 (2d Cir. 1983), that in circumstances such as5

Porzig’s, “an award of attorney s’ fees may

. . . be unnecessary

to achieve the purposes of the statutory fee- shifting provision.” They indicated to the Panel that “Porzig’s attorney fee application should be substantially reduc ed, if not denie d in its enti

rety .” (Emphasis added). While Dresdner did not specifically deny Porzig’s ac curate recitation of settled law establishing Porzig’s right to collect f ees and c osts for the time spe nt litiga ting his r ight to those fee s, Dresdne r’s state ment that Porzig’s c ontinge ncy fee “should set th e maximum limi t” on his
recovery clearly pr

ecludes fees expended to recover attorne y’s fee s. Dresdner also requested reimbursement of $26,261.19 in fees accrued in conne ction with the removed federal action Porzig brought initially. Porzig filed pa pers opposing that position. In response to the parties’ motions, the Panel issued a n order requesting that Mr. O’Donne ll provide

the Panel with copie s of all fe e agre ements be tween him

and Porzig . Porzig requested the Panel reconsider that reque st or, at minimum, require Dresdner’s counsel’s billing and expen se records for c ompariso n of fee s. The Panel denie d both of Po rzig’s r equests. Porzig ultimately submitted the information reg arding his fee contract with Mr. O’Donne ll, which allowed O’Donnell “one-third (33-1/3[] percent) of any recovery by settlement or otherwise ” and stated that Porzig would be responsible for “any ou t-of-poc ket exp enses and

disbursem ents which may be incurred,” as well as a $2,500 retainer fee . The af fidavit Mr . O’Donn ell submitted w

ith the fe e agre ement concluded t he “attorney ’s fees , costs, a nd net disb

ursemen ts” from his representation of Porzig amounted to $79,937.81, plus the $2,500 retainer fe e, for a total of $82,437.81.2 Porzig doe s not reite rate on a ppeal his request that the D istrict Cou

rt order the Panel to provide t hat all forum, filin

g, and a rbitrators’ fee s and expen ses be pa id by Defend ants. While we assume

this will not

be an issu

e on rema nd, we re mind the Pa

nel that it would ac t, agai

n, in manifest disreg ard of la

w were i t to factor these f

ees into it s calcul ation of w hat to awa

rd Porzig on reman d. The Panel is, of c ourse, f ree on r emand to g

rant Porzig ’s reque st explicitly to assess these fees against Dresdner

. 6 The Panel issued its modified arbitration award (hereinafte r “Modified Award”) on May 19, 2004. The Modified Award granted Porzig’s a pplication in part, ostensibly awar ding $75,000 for attorney ’s fees and $8,500 in costs. It stated: [Defendants] are jointly and seve rally liable for a

nd shall pay to Respondent’s counsel, Mr. O’Donnell, the sum of $75,000.00 for reasonable a ttorneys’ fe es (which su m include s interes t from the date of t he awar d of dama ges to Respondent) in the above matter, and an additional sum of $8,500.00, the reasonable amount of costs and disbursements, for a total amount of $83,500.00. [Porzig’s] counsel, Mr. O’Donnell, shall remit to Respondent Porzig the sum of $82,437.8 1, which M

r. O’Don nell[] has r

eprese nted as c onstituting

all attor ney s’ fees, costs, disbursements, and expenses retained by him out of the Panel’s award, or otherwi se pa

id to h im by [Porzi g].
Porzig again appealed to the District Court from that Modified Awa rd, requesting the court vacate that award with respec t to attorney’s fe es and again remand the issue to the Panel with instru

ctions tha t it use the

lodestar method of

calcula tion to dete

rmine the reasona ble fee s, direct Dresdner to submit evidence of their attorney billing and expense records, vacate the Modified Award with respe ct to its ins truction t o Attorne y O ’Donnel l to reimbu

rse Porzig ’s paid contingency

fee, and modify

that award to ensure all forum, filing, and ar bitrators’ fees and
expenses a

re paid by D efenda

nts. The D istrict Cou

rt denie d Porzig’ s motion, a nd Porzig appealed to this Court seeking essentially the same relief. 27 II. Analysis Porzig argues principally

that the Modified Award reflected once a gain the Panel’s manifest disregard of the law. The Dr esdner Defendants in turn contend that under the limited standard of review, there is no basis to vacate or modify the Modified Awar d. “When a party c

hallenges the district court’s review of a n arbitral award under the manifest disregard standard, we r eview the district court’s application of the standard de novo .” Wallace v. Buttar , 378 F.3d 182, 189 (2d Cir. 2004) (quotation marks and citation omitted). Courts, however, “play

only a limited role when aske d to review the decision of an arbitrator,” United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 48 4 U .S . 2 9, 36 (1 98 7) , a nd on ly a “very na rrow set of circumstances delineated by statute and case law” permit vacatur, Duferco Int’l. Steel Trading v

. T. Klaven ess Shippi

ng A/S , 333 F.3d 383, 388 (2d Cir. 2003). This Court has repeatedly recognized the strong defer ence appropriately

due arbitral awards and the a rbitral process, and has li mited its re

view of a rbitrati on awar

ds in obeis ance to that process, see, e.g., Halligan v. Jaffray, Inc. , 148 F.3d 197, 200 (2d Cir. 1998) (noting the strong judicial support of “the use of arbitration as a de vice to resolve disputes”). The value of arbitration lies in its efficiency and cost-effectiveness as a proc ess for resolving disputes outside the courts, and its tendency to foster a less acrimonious process. See DiRussa v. Dean Witter Reynolds, Inc ., 121 F.3 d 818, 821 (2d Cir. 199 7); National Broadcasting Co., Inc. v. Bear Stearns & Co., Inc

. , 165 F.3d 184, 190-91 (2d Cir. 1999). To encourage and support the use of arbitration by conse

nting parties, this Court, therefore, uses an extremely deferential standard of review for arbitral awards. See Duferco , 333 F.3d at 388.3 The FAA allows for vacatur: “(1) where the award was procur ed by corr uption, fraud, or undue means; (2) where there was evident par tiality or corruption in the arbitra tors, or either of them; (3) wh ere the arbit rator s were gu ilty of m iscon duct i n refus ing to post pone t he hear ing, upon sufficient cause shown, or in refusing to hea r evidence pertinent and material to the controversy; or

of any other

misbehavior by which the r ights of any

party have

been prejudiced; or (4) whe

re the a rbitrators excee ded their

powers, or so impe

rfectly executed them that a

mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a). 8 A decision of an arbitrator, however, is not totally impervious to judicial review. The FAA pro vides fou

r statutor y g rounds for vacat

ur in situa

tions that i

nvolve, g eneral ly, improprie ty on the par t of the a rbitrators. 3 In a

ddition, a court ma y va cate an award if it exhibits a

“manife st disregard of the law.” Goldman v. Architectural Iron Co. , 306 F.3d 1214, 1216 (2d Cir. 2002) (quot ing DiRussa , 121 F.3d at 821). Our review under the doctrine of manifest disregard of the law is highly def

erential and such relief is appropriately rare. Duferco , 333 F.3d at 389. An arbitra l award may

be vaca ted for ma

nifest disregar

d only where a petitione r can de monstrate “both that (1) the arbitrators knew of a g overning legal principle y et refused to apply

it or ignored it altoge ther, an d (2) the law ignored by

the arbi trators was well- defined , explicit, a nd clear ly applicable to the case.” Wallace , 378 F.3d at 189 (internal quotation marks omitted). Other Circuits have recognized additional, nonstatutory bases upon which a reviewing court may vac ate an arbitrator’s award, including where the awards are “ completely irra tional,” Hoffman v. Cargill Inc., 236 F.3d 4 58, 461 (8 th Cir. 2001 ) (inter nal quota tion omitte d); French v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 784 F.2d 902, 906 (9th Cir. 1986), “arbitrary and capricious,” Peebles v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 431 F.3d

1320, 1326

(11th Cir. 2005), and contrary

to an explicit public policy, Lessin v. M errill Lync

h, Pierce , Fenner & Smith, Inc. 481 F.3d 8 13, 819 (D .C. Cir. 200 7); Twin Cities Galleries, LLC v. Media Arts Group, Inc . 476 F.3d

598, 600 ( 8th Cir. 200 7); Prestige Ford v. Ford Dealer Computer Servs., 324 F.3d9

391, 395-96 (5th Cir. 2003). To the extent our sister courts may have broadened somewhat the path to va catur of an arbit ration a ward, we decline to wande r from the narrow one embod

ied in our own jurisprudence. Thus, we will vacate an a ward only upon finding

a violation of one of the four statutory ba ses, or, more rarely , if we find a panel has acted in manifest disreg ard of the law. See Wallace , 378 F.3d at 189. That said, in our review of this case we find sever al issues that cause us great conce rn. We examine them in more depth below, but, generally , the following factors cloud the presumption of validity of the awa rd: (1) the district court concluded the original attorne y’s fee award was issued in manifest disregard of the law and vacated the award; (2) the same Panel on remand a cted without author

ity w ith respe ct to a por

tion of the

award; ( 3) Porzig

accura tely explained to the arbitrators the controlling law with rega rd to attorney’s f

ees, while the Defendants advanced severa l misstatements of law to the Panel — including one on the very point of law on which the district court had found manifest disregar d; (4) the Panel did not explain how it came up with a fee award virtually identical to the contingent fee. Taken individually, in all likelihood, such circumstances would not have overcome the deference owed to the Panel’s award. Taken together , however, these circumstances cre ate, if not the perfect storm, then a disturbance ample enough to give us pause. Upon careful reflection, and mindful of the importance that the arbitration process play s in dispute resolution today and the narr ow lens thro ugh whic h we examin

e such awards, we

conclude the awa rd here was issue d partia

lly i n violation of the enabling statute and partially in manifest disregard of law and must be vaca ted.10

A. Order

to Retur n Fees t o Client The mere fact that an arbitral pane l may have intera ctions with both a party and the party’s lawy

er based on the lawy

er’s representation of the client before the panel does not give the panel a long arm to exercise jurisdiction over the attorney -client relationship. Se e A T&T Techs., Inc. v. Commc’ns W orkers of Am. , 475 U.S. 643, 651 (1986) (arbitrators must not be allowed to “impose obligations outside the contract” (quotation marks and citation omitted)). A paramount question for reviewing courts is whether the arbitral panel has acted within the bounds of its authority. See 187 Concourse Assocs. v. Fishman , 399 F.3d 524, 527 (2d Cir. 2005) (per curiam) (noting in collective barg aining context that the award must “draw[] its essence from the collective bargaining ag

reement, since the arbitrator is not free mer ely to dispense his own brand of industr ial justic e” (inte

rnal quot ation mar ks omitted) ); Local 1199

, Drug, Ho

spital, & Health Care Employees Union v. Brooks Drug Co. , 956 F.2d 22, 25 (2d Cir. 1992) (“The scope of authority of arbitr ators g eneral ly d

epends o n the inte

ntion of th e partie s to an ar bitration , and is determined by the a

greement or submission.” (quotation marks and citation omitted)). The authority of the ar

bitral panel is established only throug h the contract between the parties who have subjected themselves to arbitration, and a panel may not exceed the power granted to it by the parties in the contract. See 9 U.S.C. § 10 (a)(4) ; Banco de Seguros del Estado v. Mutual Marine Office, Inc. , 344 F.3d 255, 262 ( 2d Cir. 200 3); see also Brook v. Peak Int’l , 294 F.3d 668, 672 (5th Cir. 2002) (“The power . . . of arbitrators . . . is depende nt on the provisions under which the arbitra tors wer e appoint ed.” (in ternal q uotation ma

rks omitte d)). The

arbitra tor is constrained foremost by

this principle that “a party cannot be forced to arbitrate any dispute that it has not obligated itself, by c ontract, to submit to arbitration.” See United Steelworkers v. Mead4 Although neither party has raised the issue, we note the concern that a conflict of interest may ar

ise when a lawsuit such as this one is filed for attorney ’s fees in the client’s name. However, because any

attorney’s f

ee award ultimately

belongs to Porzig, the client, and not the attorney, see Evans v. Jeff D. , 475 U.S. 717, 730 (1986), we conclude the decision reache d here does not create any

conflict between Porzig and his counsel. We assume the attorney and client will settle the distri bution of t

he attor ney ’s fees , which a

re Porzig ’s prope

rty , accor ding to th eir own contr

act term s, which a

re bey ond the pr

ovince of this Court. See, e.g., Red Ball Interior Demolition Corp. v. Palmadessa, 173 F.3d 481, 484 (2d Cir. 1999) (noting extrajudicial nature of private contracts not before a cour t).

5 We note that this Court recently opined that the “ meaning of the term ‘lodestar’ has shifted over time, and its value as a metaphor has deteriora ted to the point of unhelpfulness.” Arbor Hill Concerned Citizens Neighborhood Ass’n v. County of Albany , 2007 WL 2004106, *7 & n.4 (2d. Cir., July 12, 2007). While not requiring subseque nt Panels to abandon the entrenched term, Arbor Hill persuasively r

easons that because the Supreme Court has not resolved the relationship between the “lodestar” me thod and the Johnson method, see Johnson v. Ga. Highway Express, Inc. , 488 F.2d 714, 717-19 (5th Cir. 1974) , abrogated on other grounds 11 Corp ., 21 F.3d 128, 131 (6th Cir. 1994). Where the arbitrator goes be yond that self-limiting agreement between conse nting parties, it acts inherently without power, and an award ordered under such circumstances must be vacated. 9 U.S.C. § 10(a) (4). Porzig’s attorney was not before the arbitration panel in any manner other than as Porzig’s counsel; Porzig wa s not before the Pa nel with r espect t o his rela tionship wi

th his attorney; and ne ither Porzig nor Attorney O’Donnell had agreed to arbitra te a dispute, if in fact there was one, over their fee c ontract. The Panel here was plainly without jurisdiction to order Porzig’s lawyer

to pay back to his client the spe cified contingency fee. That portion of the Modified Award must be vacated. 4 See 9 U.S.C. § 10(a)(4); Brooks Drug Co. , 956 F.2d at 25. B. Reasonable Attorney’s Fees In a scerta ining the amount of

reasona ble attor ney ’s fees to which a

success ful claimant is entitled, arbitration panels use the same fee calc ulation methods as the courts—generally the “lodestar” 5 analysis by

which the decision maker considers all of the case- specific variablesby Blanchard v. Bergeron, 489 U.S. 87, 92-93, 96 (1989) , the term lodestar is indeed a

misnomer. Arbor Hill

, 2007 WL 2004106, at *6. We generally agree and employ

the term here only as a point of orientation. 12 courts ha ve identi fied as r

elevant to the re asonable

ness of th e attorn ey ’s fees

. See Arbo r Hill Concerned Citizens Neighborhood Ass’n v. County of Albany , 2007 WL 2004106, *7 & n.4 (2d. Cir., July 12, 2007) ; see also s ee also H ensley v . Ecker hart , 461 U.S. 424, 440 (1983) (discussing fee ca lculation ); Blum v. Stenson , 465 U.S. 8 86, 888 (1 984) (sa me). The presumpt ively reasonable fee analy

sis involves determining the reasonable hourly rate for each attorney

and the reasonable number of hours expended, and multiply ing the two figures together to obtain the presumptively rea sonable fee award. See Arbo r Hill , 2007 WL 2004106 ( analy

zing rea sonable fee meth odology ); LeBlanc-Sternberg v. Fletcher , 143 F.3d 748, 763- 64 (2d Cir. 1998). Cou rts are regularly

called upon to conduct a reasonable fee analysis even thoug

h a lawye r may have taken the case on a contingent fe e. See, e.g., Blanchard v. Bergeron , 489 U.S. 87 (1989); Luciano v. Olsten Corp., 109 F.3d 1 11 (2d Cir. 1997); Dominic v. Consol. Edison Co. of New York, Inc ., 822 F.2 d 1249 (2d Cir. 1987) . Gener

ally when re viewing analy ses of re asonable attorney’s f

ees, we have the benefit of being able to examine the methodology used by a district court to ensure that court applied the law corre ctly. While arbitral panels may , but are not required to, explain their reasoning, when the circ umstances that exist in this case are present—namely , where a court has already taken the rare and extreme step of vaca ting the original award for being

issued in manifest disregard of law, where the Panel on remand has acted plainly outside its authority with respect to one facet of the awar d, and where we do not have the benefit of being able to examine the Panel’s a nalytical methodolog

y on the very

issue that required the original vacatur a nd remand—we may

consider that absence of explanation13

when deciding whether the Panel has a cted in manifest disregard of the laws. Halligan , 148 F.3d at 204 (“[W]e believe that when a reviewing court is inclined to hold that an arbitra tion panel manifestly disreg arded the law, the failure of the arbitra tors to explain the award can be taken into account.”). It is true that a reviewing

authority may

consider the contingency fee paid in determining a reasonable attorney ’s fee, Johnson v. Ga. Highway Express, Inc. , 488 F.2d 714, 718 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 , 92-93, 9 6 (1989); it is also undisputed, however, that the contingency fee may not serve as a cap on an attorney fee award, Blanchar

d , 489 U.S. at 90 (1989). Porzig carefully and accurately

explained to the arbitral panel the prevailing law as to the manne r in which a contingency

fee may be considered in a fee calculation. Cf. DiRussa , 121 F.3d at 823 (finding plaintiff had not explained to the arbitrators that attorney ’s fees were mandated under the statute). In a ddition, bo th Porzig a

nd the Dist

rict Cour t made cle ar to the

Panel tha t it was not

only obliged to award Porzig attorney ’s fees under the ADEA, see Hagelthorn v. Kennecott Corp., 710 F.2d 7 6, 86 (2d Ci

r. 1983); accord Lightfoot v. Union Carbide Corp. , 110 F.3d 898, 913 (2d Cir. 1997), it was also obliged to award fees for pursuing that statutory rig ht to fees. As we stated in Gagne , If an attorney

is required to expend time litigating his fee claim, y et may not be compensated for that time, the attorney ’s effective rate for all the hours e xpended on the case will be correspondingly decreased. . . . Such a result would not comport with the purpose behind most statutory fe e authorizations, [v]iz, the encoura gement of attorney s to repr

esent ind igent c lients and

to act as private attorne ys g eneral

in vindica

ting con gressi onal polic ies.14

Gagne , 594 F .2d at 344 (q uoti ng Prandini v. Nat’l Tea Co. , 585 F.2d 47, 53 (3d

Cir. 1978) ); see also, e.g., Benson v. Brower’s Moving & Storage, Inc. , 907 F.2d 310, 316 (2d Cir. 1990) (allowing for attorney ’s fees and costs incurred in defending appeal). These rules of law pertaining to conting ent fees with respect to attorney ’s fee awards are explicit, well-defined, and clearly applicable to this case. The record is clear that the arbitrators were told they were required to compensate Porzig for his re asonable attorney ’s fees—indeed their pri or failur

e to do so r

equired the awa rd to be va

cated—a nd, from Porzig’s su

bmissions, that contingent fees may

not serve as a cap on attorney ’s fee awards. Wallace , 378 F.3d at 189. Despite the settled jurisprudence with respect to the mandatory requirement both that attorney’s f

ees be awarded for succe ssful claims brought under the ADEA and that attorney ’s fees be awarded for litiga tion enforcing the right to those fees, Dr esdner nonetheless made two problema tic arg uments to the Panel: ( 1) “an a ward of attorne ys’ fees ma

y . . . be unne cessar

y to achieve the purpo ses of the

statutory fee-sh ifting provision, ” and (2)

the conti ngency f ee “shou ld set the maximum limit . . . on the amount Porzig can recover under the fee-shifting statute.” The first flie s in the fa

ce of the district c ourt’s de

terminat ion that the

Panel had

alread y ma nifestly disregarded the law when it first ref used to award attorney ’s fees. The second is contrary to a position already established by the Supreme Court. See Blanchar d , 489 U.S. 87. In this case, the Panel, stating it had c onsidered “numerous factors” when fa shioning the award, awarded Porzig $83,500.00 in attorney ’s fees and costs. This award is remarkably similar to the $82,437.81 contingent fee Attorney O’Donnell stated he had already received from Porzig. The Panel did not indicate whether it had considered the fac t that Porzig was required to appeal the Original Award to the District Court or the time Attorney O’Donnell spent on the fee6 We also fin d troublin g Dres dner’s r

epeate d insinuat

ions to the

Panel, as well as th

is Court, tha t Attorne y O ’Donnel l’s hourly

fee ra te should b e reduc ed beca use he is a

solo practitioner. While it is true that courts and arbitral panels deciding re asonable fees can and should tak

e into con siderati on many aspects of an att orney ’s prac tice to en sure a r easonab le hourly rate, see Arbo r Hill , 484 F.3d at 169, it is long established that “courts should not automatic ally

reduce the rea sonable hourly

rate ba sed solel

y on an attor ney ’s status a s a solo practitioner.” McDonal

d ex rel P renderga st v. Pens ion Plan of t

he NYSA-ILA P

ension Trus t Fund , 450 F.3d 91, 98 n.6 (2d Cir. 2006).

7 We do not hold here that any f ailure on the part of an arbitration panel to set forth a transparent fee analy

sis will subject the award to heightened judicial scrutiny . Indeed, we reiterate that arbitral panels are not re quired to explain their awards. This award, however, wa s issued after

a federal court had taken the ra re step of concluding, correctly, that the Panel had acted in manifest disreg ard of la

w—a hand slap, no do

ubt, that one would have supp osed woul d make the Panel consider its subsequent actions with careful regard. Instead, the Panel, issued a portion of the award without any authority whatsoeve

r, chose not to explain its methodology and then apparently

ignored the law again. I

n these circumstances, the failure to provide an explanation is suspicious at best, and we will take that failure into account. 15 application. This similarity in amount between the orig inal contingency

fee and the Modified Award, v iewed in l ight of t

he (now v acated

) portion of the or der req uiring A ttorney O’Donne ll to reimburse that contingency fee, and seen against the bac kdrop of the litigation history of the Panel’s inquiry into that fee, sug gests that the Defendants’ misstatement of the law with respe ct to contingent fees influenced the Panel in its final determination. 6 Moreover, it is apparent the Panel fa iled to aw ard Porzig

any attorne y’ s fees whatsoeve

r for the time his at

torney spent in District Court successfully litiga ting his statutory rig

ht to the fees or for the attorney time spent relitigating the issue in front of the Panel after remand from the District Court—fees which, as had been made clear to the Panel, wer e mandatory. Gagne , 594 F.2d at 344. In thi s case, b ecause

of the la ck of any transpa rent fe e calcu

lation analy sis by

the Panel , which handicaps our ability to review the reasonableness of the Modified Awa rd, 7 the numerous incorrect representations reg arding the applicable law made by the Defendants to the Panel, the16

fact that the Panel issued the original award in manife st disregard of the law, and the fac t that the Panel issued a portion of the present award without authority, we conclude that the Modified Award was issued in manifest disregard of the law. E. Ot her Cl aims Porzig also seeks a decision from this Court that would mandate the Panel to order Dresdner to produce records of the ir attorneys’ f ees and costs. While the Panel is free to do so on remand, we affirm the District Court’s denial of that reque st, substantially for the rea sons stated in the District Court’s opinion. F. Appellate Attorney’s Fee s Appellate attorney ’s fees may also be awarded under the ADEA whe n the appellate court determines in its discretion that they ar e appropriate. See, e.g., Goodman v. Heublein, Inc. , 682 F.2d 44, 4 8 (2d Cir. 1 982); Verbrae ken v. W estinghou se Elec. Corp ., 881 F.2d 1041, 1052-53 (11th Cir. 1989); Ramsey v. Chrysler First, Inc., 861 F.2d 1541, 1545 (11th Cir. 1988) (quoting O'Donnell v. Georgia Osteopathic Hosp., Inc., 748 F.2d 1 543, 1553 ( 11th Cir. 19 84)); Hedrick v. Hercules, Inc., 658 F.2d 1 088, 1097- 98 (5th Cir . Unit B O ct. 1981) ; Cleverly v. W estern El ectric Co., 594 F.2d 6 38, 643 (8 th Cir. 1979 ); see also Cooper v. Asplundh Tree Expert Co., 836 F.2d 1544, 1557 (10th Cir. 1988); Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1 488, 1502 ( 9th Cir. 1986). We conclude such fees are appropr iate in this instance. Accordingly , on remand, the District Court shall determine the reasonable amount of attorney ’s fees to be awarded for the time Porzig spent appealing the Modified Award to the District Court and to this Court, and enter judgment therefor. The District Court shall instruct the Panel to include those fee s in its award, which shall be in addition to, but not duplicative of, the fees and costs to be calculated by the17

Panel on remand. See Dague v. City of Burlington , 976 F.2d 801, 804-05 (2d Cir. 1992) (noting that altho ugh app ellate c ourts may

determine appell ate fee s, distric t courts a re generally

best suited to task). III. Concl usion For the reasons stated, we vacate the District Court’s decision. We remand to the District Court for further procee dings consistent with this opin ion and to d

etermine the appr opriate amount of

appella te attorney ’s fees

.