“Ultimately, § 1988’s straightforward command is replaced by a vast body of artificial, judge-made doctrine, with its own arcane procedures, which like a Frankenstein’s monster meanders its well-intentioned way through the legal landscape leaving waste and confusion (not to mention circuit-splits) in its wake.” (Hensley v. Eckerhart, 461 U.S. 424, 455 (1983) Brennan, Concurrence/Dissent)
Relevant Statutes & Rules: FEDERAL
- Civil Rights Act of 1964, Title II–discrimination in public accommodations; attorney fees recoverable.
- 42 U.S.C. 1988: Civil Rights Attorney’s Fees Award Act (1976)—“the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”
- Lanham Act 15 U.S.C. § 1117: judicial discretion in recovery of attorneys’ fee in violation of rights case
- 42 U.S.C.A. §§ 7401 etc.: Clean Air Act
- F.R.C.P. 11: court sanction of bad-faith conduct by parties or attorneys
- 28 U.S.C. § 1927: Counsel’s liability for excessive costs (multiplying proceedings vexatiously)
- 15 U.S.C. § 2310(d)(2) Magnuson-Moss Warrantee Act
Relevant Statutes & Rules: PA/States
- Wage Payment and Collection Law (WPCL): mandatory award of attorneys’ fees, amount left to discretion of trial court.
- Pa.R.C.P. 1716: pertains to the award of counsel fees in class actions—okay to consider contingent nature of the receipt of a fee in calculation.
- Unfair Trade Practice and Consumer Protection Law (UTPCPL): at first (1968) only DAs could recover attorneys’ fees; then (after 1976) citizens may act as private attorneys general. Awards treble the monetary loss in damages, plus attorneys’ fees.
- Wage Payment and Collection Law (WPCL): mandates recovery of attorneys’ fees; leaves amount up to court’s discretion.
Case Law: FEDERAL
Central Railroad & Banking Co. of Georgia v. Pettus, 5 S. Ct. 387 (1885): Attorneys are entitled to compensation of fees even for those who did not participate in the litigation but benefited from the outcome. Recovery of attorneys’ fees comes from the trust fund established in the case. (Word Doc Summary) (PDF Summary)
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968) (per curiam): a plaintiff in a Civil Rights case acts as a “private attorney general” on behalf of others in similar situations. The award of attorneys’ fees is meant to encourage the private enforcement of Civil Rights laws. Prevailing plaintiffs should ordinarily expect to recover “reasonable” attorney’s fees. (Word Doc Summary) (PDF Summary)
Clark v. American Marine Co., 320 F.Supp. 709 (E.D.La. 1970): outlined criteria for awarding fees
Electronics Capital Corp. v. Sheperd, 439 F.2d 692 (5th Cir. 1971): hours spent on case should not be sole basis for determining attorney reimbursement
B-M-G Investment Co. v. Continental/Moss Gordin, Inc., 437 F.2d 892 (5th Cir. 1971): Circuit Court’s authority to review District Court’s determination of what is “reasonable” attorney fee award.
Lindy Bros. Builders, Inc. of Phila. Et al. v. American Radiator & Standard Sanitary Corp. et al., 487 F.2d 161 (3d Cir.1973): Lower court judge should have provided an evidentiary hearing to determine reasonable award of attorney fees after settlement of class action suit, under equitable fund doctrine. (Word Doc Summary) (PDF Summary)
Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974) (Word Doc Summary) (PDF Summary): Gives 12 factors to consider when awarding “reasonable” attorneys’ fees. (One is abrogated by Blanchard v. Bergeron, 489 U.S. 87 (1989), which says that the award is not limited by any contingency agreement between plaintiff and counsel.)
Alyeska Pipeline Service Company v. The Wilderness Society et al., 95 U.S. 1612 (1975): Determined that in federal cases, with limited exceptions, if Congress has not made a statute giving courts authority to award attorney fees, the American Rule applies (parties are responsible for their own litigation costs). Justice Marshall dissented, saying he thinks there’s room for flexibility and judge-crafted exceptions. (Word Doc Summary) (PDF Summary)
Copeland v. Marshall, 641 F.2d 880 (D.C. Circ. 1980) (en banc): Defining standards for awarding attorney fees: favors Lodestar with adjustments. Ripped apart by the dissent. (Word Doc Summary) (PDF Summary)
Hensley v. Eckerhart, 461 U.S. 424 (1983): Attorney fee awards in civil rights class action suit (involuntary hospitalization in mental ward). The question was whether the limited success of the plaintiff should limit the attorney fee award (Court says yes). Lodestar rate preferred, though it’s okay to adjust up & down for different factors (though probably some of the Johnson factors are subsumed in the Lodestar). (Word Doc Summary) (PDF Summary)
Blum v. Stenson, 465 U.S. 886 (1984): Attorney fee awards in civil rights class action suit (Medicaid benefits). Lodestar rate should be calculated according to prevailing market rates, even if attorneys were pro bono or with Legal Aid nonprofit. Several specific Johnson factors are incorporated into the hours/rate already, so only boost fee award upward in exceptional cases. (Word Doc Summary) (PDF Summary)
City of Riverside v. Rivera, 477 U.S. 561 (1986): Attorney fee awards DO NOT have to be proportional to the amount of damages recovered in a civil rights action, even if that means the attorney fees awarded are greater than the dollar amount recovered. (Word Doc Summary) (PDF Summary)
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986): Prevailing plaintiffs may recover attorney fees for work done after litigation finishes (such as monitoring results), but the Lodestar calculation should not be enhanced for risk factors (these are incorporated into the calculation already). (Word Doc Summary) (PDF Summary)
Blanchard v. Bergeron et al., 489 U.S. 87 (1989): Abrogates the part of Johnson‘s factors that limited recovery of attorney fees to any contingency agreement made between plaintiff and counsel. (Word Doc Summary) (PDF Summary)
Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989): (Scalia) Successful Civil Rights Title VII sex discrimination case brought by female flight attendants against TWA for policy of terminating employment when women flight attendants became mothers. Subsequent litigation brought by intervenor union on behalf of other union members because terms of settlement guaranteed plaintiffs advancement (contra union-negotiated agreement). Majority ruled that original plaintiffs cannot recover attorney fees if intervenor loses suit, unless suit was frivolous, unreasonable, or had no foundation. Marshall countered with an incisive dissent, noting that the financial burden of follow-on intervenor litigation (which is not uncommon following a civil rights case) would chill private enforcement of statutes. (Word Doc Summary) (PDF Summary)
Texas State Teachers Assoc’n. v. Garland Independent Sch. Dist., 489 U.S. 782, 108 SCt. 1486, 103 L.Ed.2d 866 (1989): defining “prevailing party” for purposes of attorney fee recovery as party that succeeds on any significant claim and receives some judicial relief, even if it’s de minimis. No need to figure out what the “central issue” of the case was, so long as party prevails on something “significant.” Teachers union had sued school district and only prevailed on one claim. (Word Doc Summary) (PDF Summary)
Chambers v. NASCO,Inc., 501 U.S. 32 (1991): Courts have inherent power to use their discretion to sanction bad-faith conduct, including by awarding attorney fees. (But Scalia disagrees.) (Word Doc Summary) (PDF Summary)
City of Burlington v. Dague, 505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992): Fee-shifting statutes do not permit contingency enhancements beyond the lodestar amount. Court of Appeals reversed re. award of 25% enhancement of lodestar. (Scalia opinion) (Word Doc Summary) (PDF Summary)
Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992): Owner of school for troubled teens sued government officials for various constitutional violations. No damages awarded, even though jury ruled in plaintiff’s favor. SCOTUS held that he still qualifies as “prevailing plaintiff” under the fee-shifting statutes, but added that the extent of recovery is a controlling factor in what is a “reasonable” attorney fee award. (Thomas) (Word Doc Summary) (PDF Summary)
District of Columbia v. Straus, 590 F.3d 898, 389 U.S.App.D.C. 58, 252 Ed. Law Rep. 66 (2010): Defining who is the “prevailing plaintiff” who may recover attorney fees under statutes: may be defendant, but judgment must be in their favor AND there must be judicial relief. (The latter condition was not fulfilled in this IDEA case.) (Word Doc Summary) (PDF Summary)
Case Law: PA
In re. Estate of LaRocca, 431 Pa. 542 (1968): An estate case which lists factors considered for “reasonable” attorney awards from the estate, including “the amount of work performed; the character of the services rendered; the difficulty of the problems involved; the importance of the litigation; the amount of money or value of the property in question; the degree of responsibility incurred; whether the fund involved was ‘created’ by the attorney; the professional skill and standing of the attorney in his profession; the results he was able to obtain; the ability of the client to pay a reasonable fee for the services rendered; and, very importantly, the amount of money or value of the property in question.” (546) (Word Doc Summary) (PDF Summary)
Logan v. Marks, 704 A.2d 671 (Pa. Super.1997): Successful plaintiff in police abuse civil rights case was awarded a small amount of damages. Superior Court held that trial court erred in refusing to award attorney fees in light of the low return on the litigation. Trial court should have used lodestar to calculate, then adjust up or down as needed. Degree of success critical factor in determining attorney fee award. (And as long as damages are more than a nominal $1 award, per Farrar [US 1992], statutory attorney fees should be awarded to the prevailing plaintiff, even if they’re going to be greater than the damages.) (Word Doc Summary) (PDF Summary)
Signora v. Liberty Travel, Inc., 886 A.2d 284 (Pa. Sup.2005) [Overruled by Andrews v. Cross Atlantic Capital Partners, Inc., Pa. Super., March 21, 2017 on other matters]: Lodestar is the way to go. Okay to apply contingency multiplier to statutorily guaranteed attorneys’ fee award, since PA Supreme Court hasn’t said no yet (despite SCOTUS’ ruling in City of Burlington, 1992). Reasonable to consider wide area when determining reasonable rate. Evidentiary hearing for hours spent included detailed time sheets and resumes of counsel involved. (Word Doc Summary) (PDF Summary)
Croft v. P & W Foreign Car Service, Inc., 383 Pa.Super. 435, 557 A.2d 18, 57 USLW 2628 (2010): Consumer protection case (Magnuson-Moss Warranty Act). Trial court should have taken account of the time the attorney actually spent on the case when awarding attorney fees, even though that might mean the fee award is greater than what the plaintiff recovers. Court should also give its reasoning for the fees it decides to award (basic Lodestar with a few other considerations). Reasonable attorney fees will encourage consumers to bring private actions to enforce Acts like this. (Word Doc Summary) (PDF Summary)
Snyder v. Bong Thi Ngo, 2013 WL 11282816 (2013) (UNREPORTED): Plaintiff sought attorney fees as part of Loan Interest and Protection Law claim. Lower court doesn’t need to pay attention to the time actually spent on the case, so long as the court offers a reasonable explanation for the award it decides to give. (“costs and expenses reasonably incurred, plus attorneys fee, should equal the sum of half the time spent in court, plus an hour of preparation for each hour of that time, multiplied by a reasonable hourly attorneys fee of $200. This calculation, (3+6+3+6)($200), results in a sum of $1440.” (5)) (Word Doc Summary) (PDF Summary)