Awarding Attorneys’ Fees
and Managing Fee Litigation

Second Edition

Alan Hirsch and Diane Sheehey
Federal Judicial Center
2005

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to develop and conduct
education programs for judicial branch employees. The views expressed are those of the authors and not necessarily those of the Federal Judicial Center.

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this document double-sided.

Contents
Foreword vii
Introduction 1
I.

Fee-Shifting Statutes 5
A. Determining Whether a Fee Award Is In Order 5
1. Was a timely fee request made? 6
2. Is there a prevailing party? 6
a. Prevailing plaintiffs 6
b. Prevailing defendants 11
c. Prevailing intervenors 12
d. Prevailing pro se litigants 13
e. Amici curiae 14
3. Is there standing to bring a claim for fees? 14
4. Is there a liable party? 16
5. Are there special circumstances militating against an award? 16
6. Is there a fee waiver? 18
B. Calculating the Amount of the Award 20
1. What constitute fees? 20
2. What is the method of calculating the amount of fees? 21
a. Reasonable rate 23
b. Hours reasonably expended 26
3. What documentation is required? 29
4. Should the lodestar be adjusted? 32
a. Downward adjustments 32
b. Upward adjustments 43

iii

5.
6.

Are there special considerations for awards to defendants? 48
What are the procedural aspects of fee disputes? 48
a. Case law 48
b. Rule 54 52

C. Issues on Appeal 53
1. Timing of appeal 53
2. Scope of review 56
3. May the court of appeals calculate the award? 56
II. Common Fund and Substantial Benefit 59
A. Common Fund 59
B. Class Actions 61
1. Determining whether an award is in order 61
a. Is there a fund? 61
b. Did the lawsuit bring about or enhance the fund, or create
access to it? 62
c. Are there beneficiaries? 64
d. Can fees be shifted to the beneficiaries with precision? 66
e. Does the court have “control” of the fund? 68
f. Does some other circumstance militate against an award?
68
2. Calculating the amount of an award 72
a. What method should be used? 72
b. Lodestar in common fund cases 75
c. Choosing a percentage 76
d. Should the fee be adjusted? 77
e. The effect of a private fee agreement 78
f. May plaintiffs be compensated for personal expenses? 79
g. Procedures 80
3. Issues on appeal 82
a. Timing 82
b. Scope of review 82
c. May the court of appeals calculate an award itself? 83
C. Substantial Benefit 83
1. Determining whether an award is in order 85
a. Did the suit confer a substantial benefit? 85

iv

b.

2.
3.

Do the defendant and the beneficiaries share an identity of
interests? 88
c. Has the plaintiff benefited disproportionately? 91
d. Does the court have jurisdiction to make an award? 92
e. Is an award contrary to congressional intent? 94
Method for determining amount of award 94
Issues on appeal 95

D. Private Securities Litigation Reform Act of 1995 95
III. The Obligation of Bankruptcy Courts to Examine Fee Petitions 101
IV. Techniques for Managing Attorneys’ Fees 105
A. Facilitating Review of Fee Applications 105
1. Sampling 106
2. Requiring a pretrial estimate of fees 107
3. Computerized billing programs 107
4. Requiring attorneys to categorize records 107
5. Having defendants submit records 108
B. Selection of Lead Counsel by Competitive Bidding 109
C. Eliminating or Streamlining Hearings 111
1. Tentative ruling 111
2. Written declaration in lieu of testimony 112
3. Informal conference 112
D. General Techniques 112
1. Setting a framework early in the case 113
2. Local rules, guidelines, and written opinions 113
3. Delegation 114
a. Law clerks, assistants, and deputies 114
b. Magistrate judges 114
c. Special masters and alternative dispute resolution 115
d. Experts 115
e. Lead counsel and class actions 115

v

E.

Conclusion 116

Appendix A. Local Rules of the U.S. District Court for the District of
Maryland, Appendix B (2004) 117
Appendix B. Guidelines for Compensation and Expense Reimbursement of
Professionals and Trustees, U.S. Bankruptcy Court for the Northern
District of California 123
Appendix C. Notice of Tentative Ruling on Fees, U.S. Bankruptcy Court for
the Central District of California 135
Appendix D. Order Regarding Chapter 13 Attorney’s Fees, U.S. Bankruptcy
Court for the Southern District of Texas 137
Table of Cases 145

vi

Foreword
Alan Hirsch and Diane Sheehey prepared the first edition of this
monograph. Diane Sheehey updated this edition with assistance from
Kris Markarian and Laural Hooper of the Federal Judicial Center.
The Center would like to thank Judge James A. Parker (District of
New Mexico) for reviewing this monograph.

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this document double-sided.

Introduction
In the federal courts, attorneys’ fees litigation arises in several contexts. Almost 200 civil statutes authorize fee awards to prevailing
plaintiffs and, in some cases, prevailing defendants. Bankruptcy courts
must approve requests for fees for professional services, including attorneys’ fees, in every Chapter 11 case and in other cases as well. In
addition, common law permits courts to award fees when a suit results in a common fund or substantial benefit to a class of plaintiffs or
non-parties. Judges also may award fees against parties or attorneys as
a sanction for misconduct, under the court’s inherent authority, or
pursuant to several provisions in the Federal Rules of Civil Procedure.
Finally, the 1964 Criminal Justice Act authorizes compensation to
court-appointed attorneys in criminal cases. In the aggregate, attorneys’ fees matters constitute a significant part of a federal judge’s
workload.
Fee awards were not always so prevalent in federal litigation. Under the traditional “American Rule,” each party assumed its own legal
costs.1 In the nineteenth century, the Supreme Court carved out the
common fund exception.2 Throughout the twentieth century, Congress and the courts created broader exceptions. Congress enacted
statutes providing for the prevailing party to recover attorneys’ fees
from its opponent in particular kinds of actions.3 Invoking its inher1. For the history of this rule, and occasional minor departures from it, see Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247–57 (1975).
2 . See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116 (1885); Trustees v.
Greenough, 105 U.S. 527 (1881).
3. For earlier statutes, see Amendments to Freedom of Information Act, Pub. L.
No. 93-502, § 1(b)(2), 88 Stat. 1561 (amending 5 U.S.C. § 552(a)); Packers & Stockyards Act, 42 Stat. 166, 7 U.S.C. § 210(f); Perishable Agricultural Commodities Act, 46
Stat. 535, 7 U.S.C. § 499g(b); Bankruptcy Act, 11 U.S.C. §§ 104(a)(1), 641–644;

1

ent equity power, the Supreme Court held that attorneys’ fees may be
assessed against parties who disobey a court order or act in bad faith.4
Most significantly, in the early 1970s a number of courts ordered defendants to pay the attorneys’ fees of victorious plaintiffs whose lawsuits advanced important public policies, such as environmental protection.5 But in the 1975 case of Alyeska Pipeline Service Co. v. Wilderness Society, 6 the Supreme Court rejected the “private attorney
general” doctrine, holding that courts may not shift a prevailing
party’s fees to a losing party absent specific statutory authorization.
Clayton Act, § 4, 38 Stat. 731, 15 U.S.C. § 15; Unfair Competition Act, 39 Stat. 798, 15
U.S.C. § 72; Securities Act of 1933, 48 Stat. 82, as amended, 48 Stat. 907, 15 U.S.C.
§ 77k(e); Trust Indenture Act, 53 Stat. 1176, 15 U.S.C. § 77www(a); Securities Exchange Act of 1934, 84 Stat. 890, 897, as amended, 15 U.S.C. §§ 78i(e), 78r(a); Truth
in Lending Act, 82 Stat. 157, 15 U.S.C. § 1640(a); Motor Vehicle Information & Cost
Savings Act, Tit. IV, § 409(a)(2), 86 Stat. 963, 15 U.S.C. § 1989(a)(2) (1970 ed., Supp.
II); 17 U.S.C. § 116 (copyrights); Organized Crime Control Act of 1970, 18 U.S.C.
§ 1964(c); Education Amendments of 1972, § 718, 86 Stat. 369, 20 U.S.C. § 1617
(1970 ed., Supp. II); Norris-LaGuardia Act, § 7(e), 47 Stat. 71, 29 U.S.C. § 107(e); Fair
Labor Standards Act, § 16(b), 52 Stat. 1069, as amended, 29 U.S.C. § 216(b); Longshoremen’s & Harbor Workers’ Compensation Act, § 28, 44 Stat. 1438, as amended,
86 Stat. 1259, 33 U.S.C. § 928 (1970 ed., Supp. II); Federal Water Pollution Control
Act, § 505(d), as added, 86 Stat. 888, 33 U.S.C. § 1365(d) (1970 ed., Supp. II); Marine
Protection, Research & Sanctuaries Act of 1972, § 105(g)(4), 33 U.S.C. § 1415(g)(4)
(1970 ed., Supp. II); 35 U.S.C. § 285 (patent infringement); Servicemen’s Readjustment Act, 38 U.S.C. § 1822(b); Clean Air Act, § 304(d), as added, 84 Stat. 1706, 42
U.S.C. § 1857h-2(d); Civil Rights Act of 1964, Tit. II, § 204(b), 78 Stat. 244, 42 U.S.C.
§ 2000a-3(b), and Tit. VII, § 706(k), 78 Stat. 261, 42 U.S.C. § 2000e-5(k); Fair Housing Act of 1968, § 812(c), 82 Stat. 88, 42 U.S.C. § 3612(c); Noise Control Act of 1972,
§ 12(d), 86 Stat. 1244, 42 U.S.C. § 4911(d) (1970 ed., Supp. II); Railway Labor Act,
§ 3, 44 Stat. 578, as amended, 48 Stat. 1192, as amended, 45 U.S.C. § 153(p); Merchant Marine Act of 1936, § 810, 49 Stat. 2015, 46 U.S.C. § 1227; Communications
Act of 1934, § 206, 48 Stat. 1072, 47 U.S.C. § 206; Interstate Commerce Act, §§ 8,
16(2), 24 Stat. 382, 384, 49 U.S.C. §§ 8, 16(2), and 308(b), as added, 54 Stat. 940, as
amended, 49 U.S.C. § 908(b); Fed. R. Civ. P. 37(a) and (c).
4. See Vaughan v. Atkinson, 369 U.S. 527 (1962) (bad faith); Toledo Scale Co. v.
Computing Scale Co., 261 U.S. 399, 426–28 (1923) (order disobeyed).
5. See, e.g., Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Natural
Res. Def. Council v. EPA, 484 F.2d 1331 (1st Cir. 1973); Donahue v. Staunton, 471
F.2d 475 (7th Cir. 1972), cert. denied, 410 U.S. 955 (1973); Cooper v. Allen, 467 F.2d
836 (5th Cir. 1972).
6. 421 U.S. 240 (1975).

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Awarding Attorneys’ Fees and Managing Fee Litigation

(In dicta, the Court approved continued use of fee awards in common
fund and substantial benefit cases and as a sanction for misconduct.7)
At the time of Alyeska, there were several dozen fee-shifting statutes. In its wake, such statutes proliferated, in particular, the Civil
Rights Attorney’s Fees Awards Act of 19768 and scores of less prominent fee-shifting statutes. Applying these statutes is often difficult. In
many cases, it is unclear whether a party is entitled to a fee award, and
even when an award is clearly in order, calculating the amount of the
award can be complex and time-consuming. By 1983 disputes over
attorneys’ fees were consuming substantial judicial resources. In the
seminal case of Hensley v. Eckerhart, 9 the Supreme Court warned
lower courts not to let fee requests spawn “a second major litigation.”10 However, neither the Court’s warning nor its attempted clarification of the law in Hensley and subsequent decisions has significantly reduced the burden or complexity of fee awards.
This monograph addresses both statutory fee-shifting awards and
common fund and substantial benefit awards. Part 1 analyzes attorneys’ fees awards under fee-shifting statutes and addresses the selection of class counsel under the Private Securities Litigation Reform
Act. Part 2 discusses fee awards based on the common fund doctrine
and its offspring, the substantial benefit doctrine. Part 3 considers an
attorneys’ fees issue of special significance to bankruptcy courts—the
propriety of sua sponte review of fee petitions.11 Part 4 presents techniques for managing attorneys’ fees.
The monograph does not deal with compensation under the
Criminal Justice Act or the Antiterrorism and Effective Death Penalty
Act of 1996, or fees as a sanction for misconduct, which raise separate
issues that warrant discrete treatment. Although the monograph does
not address these areas specifically, parts of the analysis concerning

7. Id. at 259.
8. 42 U.S.C. § 1988 (2000).
9. 461 U.S. 424 (1983).
10. Id. at 437.
11. Fee issues peculiar to bankruptcy courts are, by and large, beyond the scope
of this monograph. However, in Parts 1 and 2, most of the analysis concerning the
amount of awards is applicable to bankruptcy court fee awards.

Introduction

3

the amount of a fee award will apply to fees awarded as sanctions and
under the Criminal Justice Act.

4

Awarding Attorneys’ Fees and Managing Fee Litigation

I

Fee-Shifting Statutes
Attorneys’ fees disputes under fee-shifting statutes occur in innumerable circumstances and raise many questions. Supreme Court
and lower appellate court decisions establish some guiding principles
for trial courts. Although the Supreme Court decisions arise in the
context of a particular statute, they generally rely on principles applicable to most fee-shifting statutes.12 Drawing on case law, this part of
the monograph addresses the questions a court must ask when analyzing a fee request.

A. Determining Whether a Fee Award Is In Order
The threshold question in an attorneys’ fees case is whether any award
is in order. Such a determination entails several discrete inquiries:
• Was a timely fee request made?
• Is there a prevailing party?
• Is there standing to bring a claim for fees?
• Is there a liable party?
• Are there special circumstances militating against an award?
• Is there a fee waiver?

12. See Hensley, 461 U.S. at 433 n.7 (“The standards set forth in this opinion are
generally applicable in all cases in which Congress has authorized an award of fees to a
‘prevailing party.’”). With a few exceptions, the nuances unique to particular statutes
(e.g., the Equal Access to Justice Act’s prohibition of fees if the government’s position
was “substantially justified”) are beyond the scope of this monograph.

5

1. Was a timely fee request made?
The Supreme Court has held that a motion for fees is untimely only if
it causes “unfair surprise or prejudice” or violates a local rule.13 The
Court rejected the contention that a motion for fees is a motion to
amend or alter a judgment, to which the ten-day requirement of Federal Rule of Civil Procedure 59(e) applies.14
Federal Rule of Civil Procedure 54(d) requires motions for attorneys’ fees to be filed no later than fourteen days after entry of judgment, absent a “statute or order of the court.” 15 Two circuits have
held that local rules prescribing time periods for filing fees motions
are court orders that preempt Rule 54’s fourteen-day period. 16 Yet
another circuit has held that Rule 54(d)(2)(B) motions are timely if
filed no later than fourteen days after resolution of Rule 50(b), 52(b),
or 59 motions.17
2. Is there a prevailing party?
a. Prevailing plaintiffs
The Supreme Court has said that to be eligible for a fee award, a
plaintiff must prevail on “any significant claim affording some of the
relief sought.” 18 The relief cannot be merely declaratory or procedural; it must reach the underlying merits of the claim and “affect[ ]

13. White v. New Hampshire, 455 U.S. 445, 454 (1982).
14. In a subsequent case, the Court held that a judgment on the merits is final
even if the amount of fees has not been determined. Budinich v. Becton Dickinson &
Co., 486 U.S. 196 (1988). Therefore, the thirty-day period for filing an appeal begins
once the judgment is entered, even if an order on the fee request has not been entered.
See infra notes 282–83 and accompanying text for further discussion of when Rule
59(e) motions toll the thirty-day time limit for appeals.
15. Fed. R. Civ. P. 54(d)(2)(B).
16. See Eastwood v. Nat’l Enquirer, 123 F.3d 1249 (9th Cir. 1997); Johnson v.
Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 729 (7th Cir. 1995) (local rule
granting a party ninety days from judgment to file a fee petition was an “order of the
court”).
17. Weyant v. Okst, 198 F.3d 311, 315 (2d Cir. 1999).
18. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791
(1989) (rejecting the law in some circuits that plaintiff must prevail on the “central
issue” and achieve “the primary relief sought”).

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Awarding Attorneys’ Fees and Managing Fee Litigation

the behavior of the defendant towards the plaintiff.”19 Thus, for example, the Court found that the plaintiff was not a prevailing party
where his success consisted of an appellate court decision reversing a
directed verdict for the defendant and ordering a new trial (and making a favorable ruling for the plaintiff in requiring additional discovery). The Court stated: “The respondents have of course not prevailed
on the merits of any of their [underlying] claims.”20 In another illustrative case, the Eighth Circuit rejected a fee request where the plaintiff’s victory consisted solely of the district court’s finding that it had
jurisdiction to hear the case.21
At the same time, the Supreme Court has held that an award of
nominal damages confers prevailing party status on the plaintiff.22 An
award of nominal damages “modifies the defendant’s behavior for the
plaintiff’s benefit by forcing the defendant to pay an amount of
money he otherwise would not pay.”23
Consensus in the lower courts has emerged with respect to the
“prevailing party” question in certain recurring situations. The courts
agree that when a party’s favorable judgment is vacated or reversed on
appeal, the party ceases to be a prevailing party and a prior fee award

19. Hewitt v. Helms, 482 U.S. 755, 761 (1987). In Hewitt, an appellate court held
that due process was denied an inmate sentenced by a prison committee to disciplinary confinement. On remand, the district court found the defendant immune from
damage liability. The appellate court had also given essentially declaratory relief, stating that the defendant’s disciplinary proceedings were improper and would have to be
changed. But because the plaintiff had been released on parole, and thus did not
benefit from this declaration, the Supreme Court held that he was not a prevailing
party.
Rhodes v. Stewart, 488 U.S. 1 (1988), is similar, although, unlike the court in
Hewitt, the lower court granted formal declaratory relief. By the time it was granted,
however, one plaintiff had died and the other was no longer in custody. The Court
held that there was no prevailing plaintiff: “A declaratory judgment, in this respect, is
no different from any other judgment. It will constitute relief . . . if, and only if, it
affects the behavior of the defendant towards the plaintiff.” Rhodes, 488 U.S. at 4.
20. Hanrahan v. Hampton, 446 U.S. 754, 768 (1980).
21. Huey v. Sullivan, 971 F.2d 1362, 1367 (8th Cir. 1992).
22. Farrar v. Hobby, 506 U.S. 103 (1992).
23. Id. at 113.

Fee-Shifting Statutes

7

must fall.24 The same is generally true when the plaintiff is granted
injunctive relief based on a likelihood of prevailing on the merits but
ultimately loses on the merits. 25 However, all circuits that have considered the question have held that the plaintiff is a prevailing party
when it obtains a preliminary injunction based on its probability of
success and the case becomes moot before a final judgment. 26 But if
injunctive relief is granted only to preserve the status quo so that any
eventual relief would not come too late, and the court makes no assessment of the merits of the case, the plaintiff is not a prevailing party
if the case becomes moot.27
The Supreme Court has held that favorable settlements enforced
through court-ordered consent decrees qualify plaintiffs for fee
awards.28 Lower courts had developed this doctrine, holding that the
plaintiff is a prevailing party when its lawsuit achieved its results by
causing the defendant to voluntarily change its conduct. The Supreme
Court, however, rejected this “catalyst theory” as a basis for awarding
attorneys’ fees under two statutes granting fees to the “prevailing
party” in Buckhannon Board and Care Home, Inc. v. West Virginia De24. See, e.g., Dexter v. Kirschner, 984 F.2d 979, 987 (9th Cir. 1992); Ladnier v.
Murray, 769 F.2d 195, 200 (4th Cir. 1985); Harris v. Pirch, 677 F.2d 681, 689 (8th Cir.
1982).
25. Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), cert. denied, 481 U.S. 1049
(1987); Ward v. County of San Diego, 791 F.2d 1329, 1334 (9th Cir. 1986), cert. denied, 483 U.S. 1020 (1987); Doe v. Busbee, 684 F.2d 1375, 1380 (11th Cir. 1982);
Smith v. Univ. of N.C., 632 F.2d 316 (4th Cir. 1980). But cf. Frazier v. Bd. of Trustees
of Northwest Miss. Reg’l Med. Ctr., 765 F.2d 1278 (5th Cir. 1985) (at least where
eventual loss resulted from change in the law after initial injunction was granted,
plaintiff was entitled to fees), cert. denied, 476 U.S. 1142 (1986).
26. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512 (10th Cir. 1990); Webster v.
Sowders, 846 F.2d 1032, 1036 (6th Cir. 1988); Taylor v. Fort Lauderdale, 810 F.2d
1551, 1557–58 (11th Cir. 1987); Grano v. Barry, 783 F.2d 1104, 1109 (D.C. Cir. 1986);
Bishop v. Comm. on Prof’l Ethics, 686 F.2d 1278, 1290–91 (8th Cir. 1982); Coalition
for Basic Human Needs v. King, 691 F.2d 597, 600 (1st Cir. 1982); Williams v. Alioto,
625 F.2d 845, 847–48 (9th Cir. 1980), cert. denied, 450 U.S. 1012 (1981); Doe v. Marshall, 622 F.2d 118, 119–20 (5th Cir. 1980), cert. denied, 451 U.S. 993 (1981).
27. Libby v. Ill. High Sch. Ass’n, 921 F.2d 96 (7th Cir. 1990).
28. Maher v. Gagne, 448 U.S. 122 (1980). See also Sierra Club v. EPA, 322 F.3d
718 (D.C. Cir. 2003) (holding that catalyst theory is a valid basis for awarding attorneys’ fees under Clean Air Act), cert. denied, 540 U.S. 1104 (2004).

8

Awarding Attorneys’ Fees and Managing Fee Litigation

partment of Health and Human Resources.29 The Court said that the
term “prevailing party” is a legal term of art30 and held that it does not
“include[ ] a party that has failed to secure a judgment on the merits
or a court-ordered consent decree.”31 Furthermore, the Court stated
that “[a] defendant’s voluntary change in conduct . . . lacks the necessary judicial imprimatur on the change.” 32
Courts of appeals have extended rejection of the catalyst theory to
other fee-shifting statutes that award fees to the prevailing party. 33
Note, however, that the Tenth, Eleventh, and D.C. Circuits declined to
extend the Buckhannon rationales for rejecting the catalyst theory to
fee-shifting statutes that award fees “whenever . . . appropriate” as opposed to fee-shifting statutes that award fees to the prevailing party.34
Under the civil rights fee-shifting statute,35 a plaintiff who prevails
on a nonconstitutional statutory claim brought pursuant to section
1983 is eligible for attorneys’ fees. 36
Plaintiffs successful before administrative agencies may be entitled
to fees under a fee-shifting statute that refers to an “action or proceeding,” provided (1) the plaintiff filed a claim in federal court,
(2) the administrative proceeding was mandatory, and (3) the issue in
the administrative proceeding was related to the claim that the plaintiff advanced in the judicial proceeding.37 One court of appeals held
29. 532 U.S. 598 (2001) (holding that catalyst theory is not a permissible basis for
attorneys’ fees awards under the Americans with Disabilities Act and the Fair Housing
Amendments Act).
30. Id. at 603.
31. Id. at 600.
32. Id. at 605.
33. See Bennett v. Yoshina, 259 F.3d 1097, 1100–01 (9th Cir. 2001) (Civil Rights
Attorney’s Fees Awards Act of 1976); Johnson v. Rodriguez, 260 F.3d 493, 495 (5th
Cir. 2001) (28 U.S.C. § 1988); Griffin v. Steeltek, Inc., 261 F.3d 1026, 1029 (10th Cir.
2001) (Americans with Disabilities Act (ADA)).
34. Sierra Club v. EPA, 322 F.3d 718, 721–26 (D.C. Cir. 2003), cert. denied, 540
U.S. 1104 (2004) (Clean Air Act); Loggerhead Turtle v. County Council, 307 F.3d
1318, 1325–27 (11th Cir. 2002) (Endangered Species Act); Ctr. for Biological Diversity
v. Norton, 262 F.3d 1077, 1080 n.2 (10th Cir. 2001) (Endangered Species Act).
35. 42 U.S.C. § 1988 (2000).
36. Maine v. Thiboutot, 448 U.S. 1 (1980) (per curiam).
37. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980). Cf. Webb v. Bd. of
Educ., 471 U.S. 234 (1985) (holding award inappropriate because administrative pro-

Fee-Shifting Statutes

9

that where the fee-shifting statute refers only to an “action”—and
omits “proceeding”—fee awards for success at the administrative
phase are not allowed.38
Courts of appeals have consistently held that when plaintiffs lose a
claim governed by a fee statute but prevail on another claim, they are
not entitled to fees.39 However, they are entitled to fees if they prevail
on another claim and the fee-based claim is not reached (as long as it
is not frivolous).40
A plaintiff may be a prevailing party entitled to fees pendente lite
rather than at the conclusion of the litigation. Courts have long had
discretion to award interim fees where liability has been established
but no remedial order has been entered.41 The Supreme Court has
suggested in dicta that district courts have discretion to award interim
fees whenever the plaintiff achieves success sufficient to make it a prevailing party—regardless of the stage of the litigation42—for example,
when the plaintiff receives a partial summary judgment establishing
liability on one issue while other issues remain to be tried. However,
interim fees should be generally granted only if they are necessary for

ceeding was not mandatory). See also N.C. Dep’t of Transp. v. Crest St. Cmty. Council, 479 U.S. 6 (1986) (holding award inappropriate when plaintiff prevailed in mandatory administrative proceedings but filed no judicial action, except to recover fees).
38. Cann v. Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 316–17
(9th Cir. 1993) (ERISA). Cf. Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir.
2000) (no attorneys’ fees at administrative stage per ERISA legislative history).
39. Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990), cert. denied, 112 S. Ct. 65
(1991); Keely v. City of Leesville, 897 F.2d 172, 176–77 (5th Cir. 1990); Northeast
Women’s Ctr. v. McMonagle, 889 F.2d 466, 476 (3d Cir. 1989), cert. denied, 494 U.S.
1068 (1990); Finch v. City of Vernon, 877 F.2d 1497, 1507–08 (11th Cir. 1989);
McDonald v. Doe, 748 F.2d 1055, 1057 (5th Cir. 1984); Gagne v. Town of Enfield, 734
F.2d 902, 904 (2d Cir. 1984); Reel v. Ark. Dep’t of Corr., 672 F.2d 693, 698 (8th Cir.
1982); Haywood v. Ball, 634 F.2d 740, 743 (4th Cir. 1980).
40. Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), cert. denied, 112 S. Ct. 969
(1992); Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991); Milwe v. Cavuoto, 653 F.2d
80 (2d Cir. 1981).
41. Bradley v. Sch. Bd. of Richmond, 416 U.S. 696 (1974).
42. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790–91
(1989).

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Awarding Attorneys’ Fees and Managing Fee Litigation

the plaintiff to continue pursuing the lawsuit, or if the case has been
unusually protracted.43
If a plaintiff has received interim fees, but its victory on the underlying issue or issues is reversed on appeal, it may be directed to repay the money.44 Several trial courts have conditioned interim fees on
the posting of a security. 45
b. Prevailing defendants
In Christiansburg Garment v. EEOC,46 the Supreme Court held that
the Title VII fee-shifting statute 47 authorizes an award to prevailing
defendants as well as to prevailing plaintiffs. The holding appears to
apply to all fee-shifting statutes that speak of a prevailing party without specification. 48 However, the Court held that an award for the Title VII defendant requires more than a showing that the defendant is a
prevailing party. The trial court must also find that the plaintiff’s suit
was “frivolous, unreasonable, or without foundation.”49 It need not
find subjective bad faith on the plaintiff’s part.50
43. See Bradley, 416 U.S. at 722–23; McKenzie v. Kennickell, 669 F. Supp. 529,
532–33 (D.D.C. 1987); W. Side Women’s Serv. v. Cleveland, 594 F. Supp. 299, 303
(N.D. Ohio 1984).
44. There is precedent for the return of fees in common fund and bankruptcy
cases. See Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986) (per
curiam); Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), cert. denied, 476 U.S.
1169 (1986); In re Hepburn, 84 B.R. 855 (S.D. Fla. 1988); In re Chin, 31 B.R. 314
(Bankr. S.D.N.Y. 1984). Although the authors found no reported cases of parties ordered to return fees awarded pursuant to fee-shifting statutes, courts apparently have
such authority. See People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134 (7th
Cir. 1991) (“court may . . . direct the plaintiffs to repay the money if they ultimately
fail to establish an entitlement to relief”).
45. See Feher v. Dep’t of Labor & Indus. Relations, 561 F. Supp. 757, 768 (D.
Haw. 1983); Howard v. Phelps, 443 F. Supp. 374, 377 (E.D. La. 1978); Nicodemus v.
Chrysler Corp., 445 F. Supp. 559, 560 (N.D. Ohio 1977), rev’d on other grounds, 596
F.2d 152 (6th Cir. 1979).
46. 434 U.S. 412 (1978).
47. 42 U.S.C. § 2000e-5(k) (2000).
48. See Hensley v. Eckerhart, 461 U.S. 424, 429 n.2 (1983) (generalizing Christiansburg’s holding).
49. Christiansburg, 434 U.S. at 421.
50. Id.

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In Fogerty v. Fantasy, Inc., 51 the Supreme Court rejected a requirement that a prevailing defendant under the Copyright Act of
197652 be held to a more stringent standard than a prevailing plaintiff.
Although the language awarding attorneys’ fees to a “prevailing party”
under the Copyright Act and that under the Civil Rights Act of 1964
are “virtually identical,” the Court stated that factors warranting different treatment of plaintiffs and defendants under Title VII were not
at work under the Copyright Act. 53 The Court held that under the
Copyright Act, “prevailing plaintiffs and prevailing defendants are to
be treated alike.”54
Since the decision in Fogerty, the Fourth Circuit has held that the
more stringent Christiansburg standard applies to prevailing defendants under the Fair Housing Act, 55 and thus, a court can treat a prevailing defendant differently from a prevailing plaintiff in deciding
whether to award attorney fees.56
c. Prevailing intervenors
Courts of appeals have held that fees may be awarded in favor of an
intervenor.57 The intervenor must “contribute[] importantly”58 or
play a “significant role”59 in producing the favorable outcome. The
Second Circuit rejected the contention that intervenors can recover
51. 510 U.S. 517 (1994).
52. 17 U.S.C. § 505 (2000).
53. The Court noted that, in contrast to the Civil Rights Act of 1964, there was
no indication in the Copyright Act’s legislative history that Congress intended plaintiffs and defendants to be treated differently and that the purpose of the Copyright
Act was not served by favoring plaintiffs over defendants. See Fogerty, 510 U.S. at 524.
54. Id. at 534.
55. 42 U.S.C. § 3613(c)(2) (2000).
56. See Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th
Cir. 1997) (“proscriptions of the FHA draw on the same policies attending Title VII of
the Civil Rights Act”).
57. Wilder v. Bernstein, 965 F.2d 1196, 1202–04 (2d Cir.) (en banc), cert. denied,
113 S. Ct. 410 (1992); Grove v. Mead Sch. Dist., 753 F.2d 1528, 1535 (9th Cir.), cert.
denied, 474 U.S. 826 (1985); Miller v. Staats, 706 F.2d 336, 340–42 (D.C. Cir. 1983).
58. United States v. Bd. of Educ. of Waterbury, 605 F.2d 573, 574 (2d Cir. 1979).
59. Donnell v. United States, 682 F.2d 240, 246 (D.C. Cir. 1982), cert. denied, 459
U.S. 1204 (1983).

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fees only when they assert a violation of their own rights. 60 The fee
award should reflect the intervenor’s contribution; efforts that duplicate work of the original plaintiffs should not be compensated.61
d. Prevailing pro se litigants
The Supreme Court held that under the civil rights fee-shifting statute, a pro se litigant, whether a lawyer or a layperson, is not eligible
for an award of attorneys’ fees.62 The Court ruled that the word “attorney” in the Civil Rights Attorney’s Fees Awards Act assumes an
agency relationship.63 Lower courts have since extended the prohibition to other fee-shifting statutes. 64 One appellate court has allowed
the award of fees to a pro se attorney litigant who also represented a
co-plaintiff in a civil rights action.65 Awarding attorneys’ fees to pro se
litigants who sought advice from outside counsel may be appropriate,66 but a pro se attorney litigant is not entitled to fees for his or her
colleagues’ work.67

60. Wilder, 965 F.2d at 1202.
61. Id. at 1204–05.
62. Kay v. Ehrler, 499 U.S. 432 (1991).
63. Id. at 435–36.
64. See, e.g., Woodside v. Sch. Dist. of Philadelphia Bd. of Ed., 248 F.3d 129, 131
(3d Cir. 2001) (pro se attorney litigant under the Individuals with Disabilities Education Act); Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260, 263 (4th Cir. 1998)
(same), cert. denied, 526 U.S. 1159 (1999); Burka v. United States Dep’t of Health &
Human Servs., 142 F.3d 1286, 1290 (D.C. Cir. 1998) (pro se attorney litigant under
the Freedom of Information Act); Ray v. United States Dep’t of Justice, 87 F.3d 1250,
1252 (11th Cir. 1996) (same); SEC v. Price Waterhouse, 41 F.3d 805, 808 (2d Cir.
1994) (pro se litigant under the Equal Access to Justice Act).
65. Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30, 32 (1st Cir.
1999).
66. Blazy v. Tenet, 194 F.3d 90, 92 (D.C. Cir. 1999) (“pro se status does not by
itself preclude the recovery of fees for consultations with outside counsel”). At least
one appellate court has held that the pro se attorney litigant must demonstrate a
“genuine attorney–client relationship” with outside counsel. Kooritzky v. Herman,
178 F.3d 1315, 1323–24 (D.C. Cir. 1999).
67. Burka, 142 F.3d at 1291 (no attorney–client relationship).

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e. Amici curiae
The Fifth Circuit held that there was no common law or statutory basis for an award of attorneys’ fees to amici curiae who voluntarily 68
participated in a lawsuit.69 The Ninth Circuit likewise held that amici
curiae are not entitled to fees.70 The Second Circuit has indicated in
dicta that fee awards to amici curiae are not appropriate. 71 However,
at least one district court awarded fees to amici curiae who “contributed to the [p]laintiffs’ victory” and “could have chosen to seek leave
to intervene had the case proceeded to trial.” 72
3. Is there standing to bring a claim for fees?
The Supreme Court has stated that an award of fees is to the party,
not to counsel.73 In most circumstances, this is a mere technicality.
For example, the Seventh Circuit has said that a motion for fees may
be made in the name of the attorney, and an award so directed:
68. Court-appointed amicus curiae may be entitled to fees from a party. The
D.C. Circuit has set forth a two-part test: “the court must ‘appoint [ ] an amicus curiae who renders services which prove beneficial to a solution of the questions presented’’’ and “‘direct [the fee] to be paid by the party responsible for the situation that
prompted the court to make the appointment.’” Schneider v. Lockheed Aircraft
Corp., 658 F.2d 835, 854 (D.C. Cir. 1981), cert. denied, 455 U.S. 994 (1982) (quoting 4
Am. Jur. 2d Amicus Curiae § 7 (1969)).
69. Morales v. Turman, 820 F.2d 728, 731–33 (5th Cir. 1987). The court pointed
out that the amici curiae never represented the class, never asked to intervene, and, in
fact, would not have had standing to intervene.
70. Miller-Wohl Co. v. Comm’r of Labor & Indus., State of Mont., 694 F.2d 203
(9th Cir. 1982) (no “common benefit” exception to American rule for amici curiae).
71. Wilder v. Bernstein, 965 F.2d 1196, 1203 (2d Cir. 1992) (“ruling that present
intervenors are prevailing parties [for fee award] will not open the flood-gates to
amicus curiae, good samaritans, or even litigious meddlers so that they may ‘team up’
and overburden the non-prevailing party with excessive attorneys’ fees”).
72. Russell v. Bd. of Plumbing Examiners of the County of Westchester, 74 F.
Supp.2d 349, 350, 350 n.2 (S.D.N.Y. 1999) (stating that awarding fees here “will not
open the flood-gates to litigious meddlers” and that requiring the amicus trade association “to move to intervene nunc pro tunc so as to get paid would be exalting form
over substance”).
73. Evans v. Jeff D., 475 U.S. 717 (1986) (discussed in text accompanying infra
note 98). Although the award of fees is to the party, the party may not keep the fees.
See United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equip., Inc., 89 F.3d
574, 577–79 (9th Cir. 1996), cert. denied, 519 U.S. 1109 (1997).

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“[W]here the lawyer is acting in his capacity as the client’s representative . . . it would exalt form over substance to deny the motion for fees
‘so that the ministerial function of substituting the plaintiff’ for the
attorney could be accomplished.”74
The matter is less straightforward if the court finds the attorney
lacks standing to request fees. In one case, counsel was discharged
(because of the client’s displeasure with his services) before the case
was settled. The Second Circuit said that “[w]ere we to entertain [the
attorney’s] claim, clients’ control of their litigation would be subject
to a veto by former attorneys no longer under an obligation of loyalty.”75 In another case, the trial court granted a fee award and ordered a check payable jointly to two attorneys and a legal services organization. The plaintiffs requested that the check be made solely to
the legal services organization, and the court so ordered. Over the
plaintiffs’ objection, one of the attorneys appealed the order. The First
Circuit held that the attorney lacked standing because the appeal “was
not only unauthorized by [the plaintiffs] but was not made for their
benefit.”76 Although it agreed with those decisions, the Seventh Circuit permitted a fee request by an attorney who had successfully defended a judgment for his client on appeal, even though the client
subsequently discharged him before the conclusion of the litigation;
there was no question that the attorney had acted with the client’s approval during the appeal and no ground for believing that the client
objected to the fee petition. 77
74. Richardson v. Penfold, 900 F.2d 116, 117 (7th Cir. 1990) (quoting Ceglia v.
Schweicker, 566 F. Supp. 118, 120 (E.D.N.Y. 1983)).
75. Brown v. Gen. Motors, 722 F.2d 1009, 1011 (2d Cir. 1983).
76. Benitez v. Collazo-Collazo, 888 F.2d 930, 933 (1st Cir. 1989).
77. Lowrance v. Hacker, 966 F.2d 1153, 1157 (7th Cir. 1992) (fee claim based on
state lien statute, not on fee-shifting statute). The Seventh Circuit followed Lowrance
in Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), a case in
which the plaintiff won a verdict and fee award, and his attorney withdrew during the
pendency of a post-trial adjudication over the amount of damages and fees. In withdrawing, the attorney asked the court for permission to continue to represent himself
with respect to fees. The trial court granted permission, and the Seventh Circuit
agreed with the decision: The attorney acted on the client’s behalf in securing the verdict, and there was no evidence that the client objected to the attorney’s efforts to get
the fee award enlarged. Samuels, 969 F.2d at 576–77.

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4. Is there a liable party?
Any losing defendant, including the government or government officials, can be liable for fees.78 However, plaintiffs who prevail only
against government employees in their personal capacities may not
recover fees from the government.79
The Supreme Court has held that attorneys’ fees may be awarded
against an intervenor, but only on a showing of bad faith.80 Three
courts of appeals have considered whether fees may be awarded
against the defendant to compensate the plaintiff for successful work
in opposing an intervenor. The Fourth and Seventh Circuits affirmed
a denial of fees.81 However, the Eighth Circuit affirmed an award of
fees against the defendant for work by the plaintiffs in defending a
court-ordered remedy against members of the plaintiff class who intervened to challenge the remedy in a desegregation case.82 The Eighth
Circuit distinguished this case from the Seventh Circuit case, noting
that here “the plaintiffs incurred their fees in defending the remedy,
which was crucial to the object in filing suit to begin with.”83
5. Are there special circumstances militating against an award?
Although fee-shifting statutes generally make fee awards for prevailing
parties discretionary, the Supreme Court has stated that an award
should be given absent “special circumstances” that render one un-

78. See, e.g., Pulliam v. Allen, 466 U.S. 522, 543–44 (1984) (state judges liable for
fees).
79. Kentucky v. Graham, 473 U.S. 159 (1985).
80. Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754 (1989).
81. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176–78 (4th Cir. 1994)
(“Zipes instructs us not to shift intervention-related expenses to the losing defendant.”); Bigby v. Chicago, 927 F.2d 1426, 1429 (7th Cir. 1991) (affirming a denial of
fees where the defendant had opposed the intervenor’s position and the issue raised
by the intervenors was ancillary to the main litigation).
82. Jenkins v. Missouri, 967 F.2d 1248, 1250–52 (8th Cir. 1992) (defendant
should pay expenses incurred in connection with intervenors because of “special nature of desegregation cases”).
83. Id. at 1251 n.2.

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just.84 In every Supreme Court case in which the defendants have argued that special circumstances exist, the Court has rejected the
claim,85 with one noted exception.86 Courts of appeals have followed
this lead, rejecting most claimed special circumstances, including
claims based on the defendant’s willingness to enter into an early settlement; 87 the lawsuit’s conferring a private benefit on the plaintiff but
no larger public benefit; 88 the plaintiffs’ ability to pass their litigation
costs on to consumers;89 the plaintiff’s proceeding in forma pauperis
while benefiting from court-appointed counsel;90 the failure of a consent decree to mention fees;91 an award of injunctive relief only;92 a
third party’s financing the plaintiffs’ suit;93 and the routine nature of
the case.94

84. Blanchard v. Bergeron, 489 U.S. 87, 89 (1989) (quoting Newman v. Piggie
Park Enters., 390 U.S. 400, 402 (1968)). Accord Hensley v. Eckerhart, 461 U.S. 424,
429 (1983).
85. See Washington v. Seattle Sch. Dist., 458 U.S. 457, 487 n.31 (1982) (plaintiffs
were state-funded entities); N.Y. Gaslight Club v. Carey, 447 U.S. 54, 70–71 n.9
(1980) (plaintiffs were represented pro bono by public interest group); Bradley v. Sch.
Bd. of Richmond, 416 U.S. 696, 710–22 (1974) (fee-shifting statute took effect after
most of litigation was completed); Newman, 390 U.S. at 402 (good faith was shown by
defendants).
86. See Farrar v. Hobby, 506 U.S. 103 (1992), discussed infra text and accompanying notes 189–94.
87. Barlow-Gresham Union High Sch. v. Mitchell, 940 F.2d 1280 (9th Cir. 1991);
Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990).
88. See, e.g., Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982). Accord Lawrence v.
Bowsher, 931 F.2d 1579, 1580 (D.C. Cir. 1991) (trial court found special circumstances where plaintiff’s success was actually harmful to a large class of prospective
plaintiffs; court of appeals reversed, stating that prevailing plaintiff “is entitled to reasonable attorneys’ fees independent of the district court’s view of the greater good for
the greatest number”).
89. Am. Booksellers Ass’n v. Virginia, 802 F.2d 691, 697 (4th Cir. 1986).
90. Starks v. George Court Co., 937 F.2d 311, 315–16 (7th Cir. 1991).
91. El Club del Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 100–01 (3d Cir.
1984).
92. Crowder v. Hous. Auth. of Atlanta, 908 F.2d 843, 848–49 (11th Cir. 1990).
93. Am. Council of the Blind v. Romer, 962 F.2d 1501, 1503 (10th Cir. 1992),
vacated and remanded on other grounds, 113 S. Ct. 1038 (1993).
94. Staten v. Hous. Auth. of Pittsburgh, 638 F.2d 599, 605 (3d Cir. 1980).

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17

Cases in which claims of special circumstances succeed generally
involve highly unusual conditions. For example, the Tenth Circuit
upheld a determination of special circumstances in a case in which the
plaintiff won an injunction that was eventually mooted before the defendant had an opportunity to appeal, and in a virtually identical
companion case, the decision for the plaintiff had been reversed on
appeal.95 In another example, the Eighth Circuit found that nuisance
settlements also constitute “special circumstances” that render an
award “unjust.” 96
6. Is there a fee waiver?
Prevailing parties may waive their right to a fee award as part of a settlement agreement.97 In Evans v. Jeff D.,98 the plaintiff accepted a gen-

95. Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512, 1514 (10th Cir. 1990).
96. Tyler v. Corner Constr. Corp., 167 F.3d 1202, 1206 (8th Cir. 1999) (defining
“nuisance settlement” as “one that is accepted despite the fact that the case against the
defendant is frivolous or groundless, solely in an effort to avoid the expense of litigation”).
97. Courts of appeals have established rules for determining whether fees are
waived. The Third Circuit requires express stipulation of a waiver in the settlement
agreement. Ashley v. Atl. Richfield, 794 F.2d 128, 136–39 (3d Cir. 1986); El Club del
Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 101 (3d Cir. 1984). The Ninth Circuit
permits inferring a waiver from “clear evidence that . . . an ambiguous clause was
intended [as a waiver] by both parties.” Muckleshoot Tribe v. Puget Sound Power &
Light, 875 F.2d 695, 698 (9th Cir. 1989). The Second Circuit applies a less stringent
standard: “a party may express its intent to waive attorneys’ fees by employing broad
release language, regardless of whether that release explicitly mentions attorneys’
fees.” Valley Disposal, Inc. v. Cent. Vt. Solid Waste Mgmt. Dist., 71 F.3d 1053, 1058
(2d Cir. 1995).
The Third, Ninth, and Tenth Circuits require the party responsible for fees in
civil rights cases to show that the settlement agreement included a release of fees. Ellis
v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1201 (10th Cir. 1999); Muckleshoot, 875
F.2d at 698 (“any party wishing to foreclose a suit for § 1988 fees must negotiate a
provision waiving attorneys’ fees”); El Club del Barrio, 735 F.2d at 100–01. However,
the Eighth and D.C. Circuits place the burden on the prevailing party to show that the
release did not waive fees. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998); Elmore
v. Shuler, 787 F.2d 601, 603 (D.C. Cir. 1986). There is also a split among circuits on
how to interpret silence regarding fees. The Sixth, Ninth, and Tenth Circuits agree
that silence does not equal a waiver of attorneys’ fees. See Ellis, 163 F.3d at n.19 and

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erous settlement offer conditioned on a waiver of fees but argued on
appeal that such offers placed counsel in an ethical dilemma. The Supreme Court rejected this argument, maintaining that counsel faced
no ethical dilemma because there is no duty to pursue a fee award.
The Court held that a fee award belongs to the party, not to counsel,
and can be waived by the party. Thus, settlements contingent on a
waiver of a fee award are valid and enforceable.
There is another issue of concern regarding fee awards that is
nearly opposite the waiver issue. Counsel can reach a “sweetheart”
settlement, in which the defendant pays a small amount to the plaintiff and a high amount in attorneys’ fees. This concern is greatest in
class actions, in which counsel are less likely to consult plaintiffs during settlement negotiations. The Third Circuit recommended a procedure to safeguard against this problem:
[T]rial courts [can] insist upon settlement of the damage aspect of the case
separately from the award of statutorily authorized attorneys’ fees. Only after court approval of the damage settlement should discussion and negotiation of appropriate compensation begin. This would eliminate the situation . . . of having, in practical effect, one fund divided between the attorney
and client. 99

The Supreme Court, however, said courts may not require this approach,100 and another Third Circuit panel and a Third Circuit task
force expressed concern that the approach is unenforceable and discourages settlement. 101

cases cited therein. Cf. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir. 1998) (“silence may
constitute a waiver of the right to claim fees”).
98. 475 U.S. 717 (1986).
99. Prandini v. Nat’l Tea, 557 F.2d 1015, 1021 (3d Cir. 1975).
100. Evans, 475 U.S. at 738 n.30.
101. El Club del Barrio, Inc. v. United Cmty. Corp., 735 F.2d 98, 101 n.3 (3d Cir.
1984); Court Awarded Attorney Fees: Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 267–68 (1985). The task force suggested appointing a disinterested person to protect the interests of class members or unrepresented beneficiaries. Id. at 256.

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B. Calculating the Amount of the Award
Determining that a fee award is in order is only the beginning. The
proper amount of the award must be calculated, and this involves several considerations:
• What constitute fees?
• What is the method of calculating the amount of fees?
• What documentation is required?
• Should the lodestar be adjusted?
• What are the procedural aspects of fee disputes?
1. What constitute fees?
Two Supreme Court cases addressed what attorneys’ fees encompass.
In Missouri v. Jenkins,102 the Court addressed compensation for paralegals and law clerks, holding that their work should be compensated
at the rates at which it is billed to clients. Although the case turned on
the question of what constitutes a “reasonable” fee for such services,
not on whether such services are part of attorneys’ fees (a point the
defendant conceded), in addressing that question the Court made
some observations relevant to the definition of fees:
Clearly, a “reasonable attorney’s fee” cannot have been meant to compensate only work performed personally by members of the bar. Rather, the
term must refer to a reasonable fee for the work product of an attorney.
Thus, the fee must take into account the work not only of attorneys, but
also of secretaries, messengers, librarians, janitors, and others whose labor
contributes to the work product for which an attorney bills her client; and it
must also take account of other expenses and profit. . . . We thus take as our
starting point the self-evident proposition that the “reasonable attorney’s
fee” provided for by statute should compensate the work of paralegals, as
well as that of attorneys.103

102. 491 U.S. 274 (1989).
103. Id. at 285. Rejecting the argument that the work of paralegals and law clerks
should be compensated by reference to its cost to the firm, the Court said that the
marketplace is the guide, and attorneys generally bill clients separately (at for-profit
rates) for paralegals’ and law clerks’ work. The defendant claimed that the extension
of this approach is separate compensation for “secretarial time, paper clips, electricity,
and other expenses.” The Court responded that the “safeguard against [such practices] is the discipline of the market.” Id. at 287–88 n.9. See also Lipsett v. Blanco, 975

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In West Virginia University Hospitals, Inc. v. Casey, 104 the Court
held that a fee-shifting statute does not authorize compensation for
experts’ fees unless it expressly says that it does.105 The basis of the
holding was a long tradition of statutes that distinguish between experts’ fees and attorneys’ fees. The Court distinguished the case from
Jenkins on two related grounds. First, no fee-shifting statutes treat fees
for law clerks or paralegals separately from attorneys’ fees. Second, the
cost of such work has traditionally been included in an attorney’s fee
(even though it is now generally billed separately), whereas experts’
fees have always been treated as a separate item.
The guidepost from Jenkins and Casey is the tradition of billing
and fee-shifting practice.106 The determination of what constitutes a
reasonable fee—in terms of the work performed and the billing
rate—is a somewhat different matter, which is treated at length below.
2. What is the method of calculating the amount of fees?
In Hensley v. Eckerhart, 107 the Supreme Court established that in feeshifting cases the basis of a fee award is the “lodestar”—the number of
F.2d 934, 939 n.5 (1st Cir. 1992) (interpreting Jenkins to hold that “[w]hether paralegal hours may be billed at a market rate ultimately depends upon whether such a
practice is common in the relevant legal market”).
104. 499 U.S. 83 (1991).
105. The Civil Rights Act of 1991 effectively overrode Casey, making fees for expert witnesses available under the civil rights fee-shifting statute. However, the Act in
no way undercuts the holding in Casey that such fees are unavailable unless expressly
authorized by statute.
106. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1557 (9th Cir. 1992) (instructing district court, on remand, to consider whether assorted claimed costs (e.g., a
filing cabinet) “are or are not . . . ordinarily [ ] treated as reimbursable in a private
attorney-client relationship”); Davis v. Mason County, 927 F.2d 1473, 1477–78 (9th
Cir.) (affirming compensation for travel costs because “expenses incurred during the
course of litigation which are normally billed to fee-paying counsel” are compensable
under the fee-shifting statutes), cert. denied, 112 S. Ct. 275 (1991). Several circuits
have held that computer-aided legal research costs are part of attorneys’ fees and may
not be separately billed. See United States ex rel. Evergreen Pipeline Constr. Co. v.
Merritt Meridian Constr. Corp., 95 F.3d 153, 172 (2d Cir. 1996); Haroco, Inc. v. Am.
Nat’l Bank & Trust Co. of Chicago, 38 F.3d 1429, 1440–41 (7th Cir. 1994); Standley v.
Chilhowee R-IV Sch. Dist., 5 F.3d 319, 325 n.7 (8th Cir. 1993).
107. 461 U.S. 424 (1983).

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hours reasonably expended multiplied by the applicable hourly market rate for legal services.108 This is true regardless of whether the
plaintiff and the attorney had a private (contingent or hourly) fee
contract.109
Several appellate courts have rejected lower courts’ attempts to
calculate fees using a method other than the lodestar.110 These cases
involved low damages or limited success.111
108. Id. at 433. See also Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002) (“Thus,
the lodestar method today holds sway in federal-court adjudication of disputes over
the amount of fees properly shifted to the loser in the litigation.”).
Before Hensley, many courts calculated fees by analyzing the Johnson factors:
(1) time and labor required; (2) novelty and difficulty of issues; (3) skill required;
(4) loss of other employment in taking the case; (5) customary fee; (6) whether fee is
fixed or contingent; (7) time limitations imposed by client or circumstances;
(8) amount involved and result obtained; (9) counsel’s experience, reputation, and
ability; (10) case undesirability; (11) nature and length of relationship with the clients;
and (12) awards in similar cases. Johnson v. Ga. Highway Express, 488 F.2d 714, 717
(5th Cir. 1974). Hensley makes clear that the Johnson factors matter only as they bear
on the market rate or hours reasonably expended, or, in rare cases, if they are a basis
for adjusting the lodestar. See infra text accompanying notes 167–246 (discussing adjustments). See also Daly v. Hill, 790 F.2d 1071, 1078 (4th Cir. 1986) (stating that “the
Johnson factors are to be considered . . . in determining the reasonable rate and the
reasonable hours”). Only the Fifth and Eleventh Circuits clearly require consideration
of these factors in each case. See, e.g., Nisby v. Court of Jefferson County, 798 F.2d
134, 137 (5th Cir. 1986) (reversing award because court did not address “applicability
of each of the Johnson factors”); Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541,
1543–44 (11th Cir. 1985) (same). In the Ninth Circuit, the Johnson factors are known
as the Kerr factors. (See Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975),
cert. denied, 425 U.S. 951 (1976).) The Kerr factors that are not subsumed in the lodestar calculation are to be considered in determining if adjustments to the lodestar are
warranted. See Morales v. City of San Rafael, 96 F.3d 359, 363–64 nn.8–10 (9th Cir.
1996), amended by, reh’g en banc denied, 108 F.3d 981 (1997).
109. In Blanchard v. Bergeron, 489 U.S. 87 (1989), the Supreme Court held that a
fee award under section 1988 may exceed the amount dictated by a contingent fee
agreement. In Venegas v. Mitchell, 495 U.S. 82 (1990), the Court held that section
1988 did not prohibit a contingent fee agreement in which a prevailing civil rights
plaintiff paid his attorney more than the statutory award against the defendant.
110. See Quaratino v. Tiffany & Co., 166 F.3d 422, 426 (2d Cir. 1998) (rejecting a
“billing judgment” approach—where fees are “reasonable” if rationally related to the
monetary recovery anticipated ex ante—and reaffirming use of lodestar); Orchano v.
Advanced Recovery, Inc., 107 F.3d 94, 99–100 (2d Cir. 1997) (remanding because

22

Awarding Attorneys’ Fees and Managing Fee Litigation

a. Reasonable rate
The reasonable rate is determined by reference to the marketplace.112
Courts agree that an attorney’s customary billing rate is the proper
starting point for calculating fees.113 However, that rate is not always
conclusive. In Blum v. Stenson, 114 the Supreme Court held that a nonprofit organization is entitled to compensation at the market rate of
the legal community at large. 115 The D.C. Circuit extended this holding to for-profit attorneys who charge lower rates for some clients in

lodestar analysis not made); Morales, 96 F.3d at 365 (rejecting court’s “reasoning” of
what an appropriate fee should be), amended by, reh’g en banc denied, 108 F.3d 981
(1997); Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1492–94 (11th Cir. 1994) (rejecting fees based on lodestar adjusted downward by multiplier where result appeared
to be a “multiple-of-damages approach”).
The First Circuit, however, appears to have left open the door to an alternative
method. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 338, 342 (1st Cir. 1997)
(holding that it was “error to forgo the lodestar” and stating that “while such a departure from preferred practice will not necessarily be fatal, spurning all consideration
of a lodestar places a substantial burden upon the district court to account for its actions”). See also Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), discussed infra text
accompanying note 198.
111. See infra text accompanying notes 178–99.
112. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (“we have consistently looked to the marketplace as our guide to what is ‘reasonable’”).
113. See, e.g., Islamic Ctr. of Miss. v. Starkville, Miss., 876 F.2d 465, 469 (5th Cir.
1989); Kelley v. Metro. County Bd. of Educ., 773 F.2d 677, 683 (6th Cir. 1985) (en
banc), cert. denied, 474 U.S. 1083 (1986); Cunningham v. City of McKeesport, 753
F.2d 262, 268 (3d Cir. 1985), vacated on other grounds, 478 U.S. 1015 (1986).
114. 465 U.S. 886 (1984).
115. Despite Blum, some courts have held that, at least in cases not brought under a civil rights statute, a salaried union attorney is entitled only to fees calculated at
a cost plus overhead rate. Devine v. Nat’l Treasury Employees Union, 805 F.2d 384
(Fed. Cir. 1986), cert. denied, 484 U.S. 815 (1987); Harper v. Better Bus. Serv., 768 F.
Supp. 817 (N.D. Ga. 1991), aff’d, 961 F.2d 1561 (11th Cir. 1992); Johnson v. Orr, 739
F. Supp. 945 (D.N.J. 1988), appeal dismissed , 897 F.2d 128 (1990). These courts reason
that a market-based award would serve to subsidize the union’s ordinary operation.
The Third, Ninth, and D.C. Circuits have held otherwise, finding a market-based
award in order, provided the union deposits the fee into a segregated litigation fund.
Kean v. Stone, 966 F.2d 119, 122–24 (3d Cir. 1992); Am. Fed’n of Gov’t Employees v.
FLRA, 944 F.2d 922, 937 (D.C. Cir. 1991); Curran v. Dep’t of Treasury, 805 F.2d 1406,
1408 (9th Cir. 1986).

Fee-Shifting Statutes

23

an effort to promote the public interest. 116 There are other exceptions
as well. Most courts consider the forum community the proper yardstick, so an award for out-of-town counsel will not be based on the
rates in their usual place of work.117 Even for local counsel, if the usual
rate is sharply at odds with the prevailing market rate, courts generally
have discretion to use the latter. 118 Additionally, some courts base an
116. Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516, 1524 (D.C. Cir.
1988). In Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), the Seventh Circuit held that
the lawyer’s rate trumps the general market rate, reversing the district court’s award of
fees based on the market rate in the community even though counsel’s rate was lower.
The court recognized the possibility that the lawyer charged his clients less than he
could obtain and noted the holding in Save Our Cumberland Mountains. However,
the evidence showed that the lawyer charged all his clients a submarket rate, thus
posing a different situation from the one faced by the D.C. Circuit. The court held
that the D.C. Circuit may be correct to permit compensation at the market rate in
cases where counsel’s usual rate is the market rate but he or she charges a particular
client (or set of clients) less. However, the Seventh Circuit expressed uneasiness with
this approach, too. Barrow, 977 F.2d at 1106.
117. See, e.g., ACLU of Ga. v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999); Davis v.
Macon County, 927 F.2d 1473, 1488 (9th Cir.), cert. denied, 112 S. Ct. 275 (1991).
Ackerly Communications v. Somerville, 901 F.2d 170, 172 (1st Cir. 1990); Polk v.
N.Y. State Dep’t of Corr. Servs., 722 F.2d 23, 25 (2d Cir. 1983). Most circuits have
carved out exceptions to this rule. See, e.g., Rum Creek Coal Sales, Inc. v. Caperton, 31
F.3d 169, 179 (4th Cir. 1994) (when local attorneys are unavailable and employing
out-of-town counsel is reasonable, out-of-town rates apply); Gates v. Deukmejian,
987 F.2d 1392, 1404–05 (9th Cir. 1992) (affirming use of out-of-town counsel’s rates
when attorneys in forum were unavailable, and citing cases); In re Agent Orange Prod.
Liab. Litig., 818 F.2d 226, 232–33 (2d Cir. 1987) (discussing the exceptions). The D.C.
Circuit carved out a narrow exception: Local rates do not apply when the bulk of the
work is performed in the attorney’s home state and that market reflects substantially
lower rates. Davis County Solid Waste Mgmt. v. EPA, 169 F.3d 755, 759 (D.C. Cir.
1999).
118. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992); Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir.), cert. denied, 484 U.S. 990 (1987);
Shakopee Mdewakanton Sioux Cmty. v. City of Prior Lake, Minn., 771 F.2d 1153 (8th
Cir. 1985), cert. denied, 475 U.S. 1011 (1986). But see Gusman v. Unisys, 986 F.2d
1146, 1150–51 (7th Cir. 1993) (lawyer’s own rate is the presumptive rate, and a judge
who departs from it “must have some reason other than the ability to identify a different average rate in the community”—e.g., “the lawyers did not display the excellence . . . implied by their higher rates” or the “plaintiff did not need top-flight counsel in a no-brainer case”).

24

Awarding Attorneys’ Fees and Managing Fee Litigation

award on an hourly rate lower than the attorney’s usual rate if the litigation is outside the attorney’s usual field of practice.119
In Blum, the Supreme Court noted that the market takes into account variation in the skill and experience of attorneys. The reasonable rate for established, experienced practitioners is likely to be
greater than the rate for new attorneys in the same market.120 For example, the Fourth Circuit affirmed an award based on a $150 hourly
rate even though the defendants proffered an affidavit showing that
the usual rate for civil rights attorneys in South Carolina was $50 to
$75. 121 The court cited counsel’s “vast experience and expertise” and
evidence on the record that “the prevailing rate for lawyers of his
‘qualifications and experience in comparable complex litigation range
[sic] from $100 to $250’ in South Carolina.”122
Some courts apply different rates to different tasks, for example, a
higher rate for in-court work than for out-of-court work, or different
rates for the liability phase of the litigation and the remedy phase. 123
More often, courts apply a flat rate for all work by a particular attorney in the case. 124
The Third Circuit held that once a party meets its prima facie
burden of establishing the “community market rate,” and the opposing party does not produce contradictory evidence, the trial court
does not have discretion to adjust the requested rate downward.125
The Tenth Circuit held that it is an abuse of discretion to ignore a
119. See, e.g., Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3, 6 (1st Cir.
1991); Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), cert. denied, 111
S. Ct. 1106 (1991); Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir. 1983); Moore v.
Matthews, 682 F.2d 830, 840 (9th Cir. 1982).
120. Blum, 465 U.S. at 895–96 n.11.
121. Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990).
122. Id. at 278.
123. See, e.g., Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990).
124. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992); In re
Meese, 907 F.2d 1192 (D.C. Cir. 1990); Spell v. McDaniel, 824 F.2d 1380 (4th Cir.
1987), cert. denied, 484 U.S. 1027 (1988); Daggett v. Kimmelman, 811 F.2d 793 (3d
Cir. 1987); Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985); Craik v. Minn.
State Univ. Bd., 738 F.2d 348 (8th Cir. 1984).
125. Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031,
1036 (3d Cir. 1996).

Fee-Shifting Statutes

25

party’s evidence of a market rate and apply the rate the trial court
“consistently grants.”126
b. Hours reasonably expended
The Supreme Court has said that counsel is expected to exercise
“billing judgment”127 and that district courts “should exclude from
this initial fee calculation hours that were not ‘reasonably expended,’”
including “excessive, redundant, or otherwise unnecessary” work.128
As a result, lower courts have reduced fee awards where there has been
duplication of services; 129 failure to pursue settlement prior to filing a
straightforward suit;130 excessive total time billed considering the lack
of difficulty of the case;131 excessive time billed for particular tasks;132
126. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1256 (10th Cir. 1998).
127. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citing Copeland v. Marshall,
641 F.2d 880, 891 (D.C. Cir. 1980)).
128. Id. at 434.
129. See, e.g., Ackerly Communications v. Somerville, 901 F.2d 170, 171–72 (1st
Cir. 1990).
130. See, e.g., Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 552 (7th Cir.
1999) (fee-paying client would have expected counsel to assess feasibility of quick
settlement prior to filing suit).
131. See, e.g., Clarke v. Frank, 960 F.2d 1146, 1153 (2d Cir. 1992) (holding not
abuse of discretion to deduct hours, because “[t]his was not a complex case. Clarke’s
attorney took no depositions, and performed little discovery. The sole issue at trial
was the amount of back pay. The trial lasted slightly more than one day. Clarke did
not call any witnesses, and did not even testify. The case did not involve any novel
areas of law. Clarke’s post-trial motions were neither complicated nor abstruse.”).
132. See, e.g., Broyles v. Dir., 974 F.2d 508, 510–11 (4th Cir. 1992) (finding several items excessive—e.g., an hour to read a brief opinion and fifteen-minute calls to
the clerk of court’s office, which handles most inquiries in far less time); Smith v.
Freeman, 921 F.2d 1120, 1124 (10th Cir. 1990) (upholding reduction of compensable
hours for work on fees motion: “neither the factual nor legal issues were especially
complex and . . . [counsel] was thoroughly familiar with the issues”); Ackerly, 901 F.2d
at 173 (disallowing claims for excessive photocopying and computer research); Ustrak
v. Fairman, 851 F.2d 983, 987 (7th Cir. 1988) (38 hours preparing for oral argument
“is far too much” in a short and simple case; likewise, 108.5 hours preparing fee petitions is “the tail wagging the dog, with a vengeance”); Louisville Black Police Officers
Org. v. City of Louisville, 700 F.2d 268, 279 (6th Cir. 1983) (holding district court’s
reduction of hours documented for preparation of plaintiffs’ post-trial and reply
briefs was not an abuse of discretion).

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Awarding Attorneys’ Fees and Managing Fee Litigation

use of too many attorneys 133 or too much conferencing;134 unnecessary work by a trial consultant deemed a “non-lawyer[ ] . . . doing
lawyers [sic] work”;135 publicity work;136 reading or reviewing of
books not closely related to the case;137 performance of secretarial or
clerical tasks by lawyers;138 and other assorted work deemed unnecessary.139 The Tenth Circuit held it is not a per se abuse of discretion to
award fewer hours than the defendant agrees are reasonable.140
The Seventh Circuit held that it was appropriate to deny fees
completely when the petition for fees was “intolerably inflated” and
“outrageously excessive.” 141 The First Circuit reversed an award of
fees where it found that the requesting party’s failure to cull unnecessary hours was “inexcusable.”142 The Fourth Circuit reversed an award
of fees where it found the amount requested “was so outrageously excessive so as [sic] to shock the conscience of the court.”143
At the same time, all kinds of tasks, such as travel,144 lobbying,145
and public relations work,146 are compensable if they are necessary or
133. See, e.g., Goodwin v. Metts, 973 F.2d 378, 383–84 (4th Cir. 1992) (fees cut in
half because firm used several attorneys where one or two would have sufficed);
Grendel’s Den v. Larkin, 749 F.2d 945, 953 (1st Cir. 1984) (“We see no justification
for the presence of two top echelon attorneys at each proceeding.”).
134. In re Olson, 884 F.2d 1415, 1429 (D.C. Cir. 1989).
135. Davis v. Southeastern Pa. Transp. Auth., 924 F.2d 51, 56 (3d Cir. 1991).
136. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994)
(public relations); Greater L.A. Council on Deafness v. Cmty. Television of S. Cal.,
813 F.2d 217, 221 (9th Cir. 1987) (publicity and lobbying); Hart v. Bourque, 798 F.2d
519, 523 (1st Cir. 1986) (arranging lectures and publications about case).
137. Alberti v. Klevenhagen, 896 F.2d 927, 932–34 (5th Cir.), vacated on other
grounds, 903 F.2d 352 (5th Cir. 1990).
138. Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992) (trial court improperly
permitted billing of clerical work, such as court filings, at lawyers’ rates).
139. See, e.g., Olson, 884 F.2d at 1429 (disallowing hours spent on secretarial
overtime, overtime dinner expense, a press release, and futile lobbying to defeat a bill
that was sure to be enacted).
140. Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1250–51 (10th Cir. 1998).
141. Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980).
142. Lewis v. Kendrick, 944 F.2d 949, 956 (1st Cir. 1991).
143. Fair Hous. Council of Greater Wash. v. Landow, 999 F.2d 92, 96–98 (4th
Cir. 1993).
144. See, e.g., Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991); Dowdell v.
Apopka, Fla., 698 F.2d 1181, 1192 (11th Cir. 1983). But see Smith v. Freeman, 921

Fee-Shifting Statutes

27

useful to litigating the case. Moreover, reasonable work at all stages of
the litigation is compensable, including prefiling work;147 work on an
appeal and defending against a petition for certiorari;148 work on a fee
petition and litigating a fee dispute; 149 and work in connection with
post-judgment or post-decree administration, monitoring, or fee collection. 150
The Third Circuit affirmed an attorneys’ fees award for work
performed in a separate, yet related, case even though the party assessed fees was not a party in the litigation in which the work was
performed. The court stated:
[If] plaintiff can prove that the fees and expenses incurred in the other litigation resulted in work product that was actually utilized in the instant litigation, that the time spent on other litigation was “inextricably linked” to
the issues raised in the present litigation, and that plaintiff has not previ-

F.2d 1120, 1122 (10th Cir. 1990) (affirming compensation at only 25% of standard
hourly rate for travel time).
145. See, e.g., Glover v. Johnson, 934 F.2d 703, 717 (6th Cir. 1991); Demier v.
Gondles, 676 F.2d 92, 93–94 (4th Cir. 1982).
146. See, e.g., Davis v. San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992).
147. See, e.g., Dowdell, 698 F.2d at 1192.
148. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1051 (9th Cir. 1991).
149. The courts are unanimous on this point but split on whether a fee request
for appellate work may be brought in the court of appeals in the first instance. Compare Yaron v. Northampton, 963 F.2d 33, 36 (3d Cir. 1992) (may be brought before
court of appeals), and Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988) (same),
with Crane v. Texas, 766 F.2d 193, 195 (5th Cir.) (per cu riam), cert. denied, 474 U.S.
1020 (1985) (may not be brought in court of appeals), and Reel v. Ark. Dep’t of Corr.,
672 F.2d 693, 699 (8th Cir. 1982) (same), and Souza v. Southworth, 564 F.2d 609,
613–14 (1st Cir. 1977) (same). Some courts hold that the petition may be brought in
the court of appeals, but if the court decides that a fee award is in order, it must remand the case to the trial court to calculate the amount. See Iqbal v. Golf Course Superintendents, 900 F.2d 227, 229–30 (10th Cir. 1990); Finch v. City of Vernon, 877
F.2d 1497, 1508 (11th Cir. 1989); McManama v. Lukhard, 616 F.2d 727, 730 (4th Cir.
1980) (per curiam). The Second Circuit holds that the application should be filed in
the court of appeals, which, except in simple cases, will remand it to the district court
for decision. Dague v. City of Burlington, 976 F.2d 801, 804 (2d Cir.), rev’d on other
grounds, 112 S. Ct. 2638 (1992).
150. See, e.g., Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1305 (11th
Cir. 1988); Spain v. Mountanos, 690 F.2d 742, 747 (9th Cir. 1982).

28

Awarding Attorneys’ Fees and Managing Fee Litigation

ously been compensated for those fees and expenses, then the district court
may include those fees and expenses in its fee award. 151

Finally, courts have held that it is improper to engage in an “ex
post facto determination of whether attorney hours were necessary to
the relief obtained.” 152 The issue “is not whether hindsight vindicates
an attorney’s time expenditures, but whether at the time the work was
performed, a reasonable attorney would have engaged in similar time
expenditures.”153
3. What documentation is required?
The burden of establishing the lodestar rests on the fee applicant, who
must provide appropriate documentation of the hours spent and the
market rate. If the documentation is inadequate, the district court
may reduce the award accordingly.154
The circuits’ precise requirements or preferences for documentation differ. For example, the Eleventh Circuit has said the following:
[T]he general subject matter of the time expenditures ought to be set out
with sufficient particularity so that the district court can assess the time
claimed for each activity. . . . A well-prepared fee petition also would include a summary, grouping the time entries by the nature of the activity or
stage of the case.155

Although the Third Circuit agreed that a fee petition should include
“‘fairly definite information as to the hours devoted to various general
activities, e.g., pretrial discovery, settlement negotiations, and the

151. Gulfstream III Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414,
420 (3d Cir. 1993). The court pointed out that although the defendant lacked the
opportunity to ensure that the plaintiff’s litigation costs were “not unnecessarily escalated” in the litigation to which it was not a party, the district court had the responsibility “to award fees only for work ‘reasonably expended.’” Id.
152. Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992), cert. denied, 113 S. Ct. 978
(1993).
153. Id. Accord In re Synthroid Mktg. Litig., 264 F.3d 712, 718–19 (7th Cir.
2001); Woolridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990); Indep. Sch. Dist. v. Digre, 893 F.2d 987, 992 (8th Cir. 1990); Dennis v. Chang, 611 F.2d
1302, 1308 (9th Cir. 1980).
154. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
155. Norman, 836 F.2d at 1303.

Fee-Shifting Statutes

29

hours spent by various classes of attorneys,’”156 it has explicitly rejected the requirement of time summaries, stating that a chronological
listing of time spent per task is sufficient. 157 A number of courts have
required that such a listing not be overly general. 158
The D.C., First, Second, Seventh, and Tenth Circuits require contemporaneous fee records and may substantially reduce or even deny
a fee award in their absence. 159 The Fifth Circuit has said that such records are the “preferred practice” but are not required. 160 The Ninth
and Eleventh Circuits have held that reconstructed time records suffice if “supported by other evidence such as testimony or secondary
documentation.”161 The Eighth Circuit has said that “whether recon-

156. Rode v. Dellarciprete, 892 F.2d 1177, 1190 (3d Cir. 1990) (quoting Lindy
Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3d
Cir. 1973)).
157. Rode, 892 F.2d at 1190.
158. See, e.g., Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992) (affirming reduction of hours where “several entries contain[ed] only gauzy generalities” too
nebulous to allow the opposing party to dispute their accuracy); In re Donovan, 877
F.2d 982, 995 (D.C. Cir. 1989) (district court properly excluded hours with “vague
description[s]” such as “legal issues,” “conference re all aspects” and “call re status”);
Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986) (affirming reduction in hours
where plaintiff listed hours spent on “research,” without saying what was researched).
See also Domegan v. Ponte, 972 F.2d 401, 425 (1st Cir. 1992) (criticizing “mixed entries”—the lumping together of different activities), vacated and remanded on other
grounds, 113 S. Ct. 1378 (1993).
159. See In re Olson, 884 F.2d 1415, 1428 (D.C. Cir. 1989); Lightfoot v. Walker,
826 F.2d 516, 523 n.7 (7th Cir. 1987); Grendel’s Den v. Larkin, 749 F.2d 945, 952 (1st
Cir. 1984); Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983); McCann v. Coughlin, 698
F.2d 112, 131 (2d Cir. 1983).
160. Alberti v. Klevenhagen, 896 F.2d 927, 931 (5th Cir.), vacated on other
grounds, 903 F.2d 352 (5th Cir. 1990). However, the court did suggest that, in certain
cases, the absence of such records would be grounds for reducing the requested fee. In
Walker v. United States Department of Housing & Urban Development, 99 F.3d 761,
773 (5th Cir. 1996), the court held that the district court’s failure to reject billing records was “clearly erroneous” where the terse listings of lumped-together activities
were “inadequately documented” and “non-contemporaneous.”
161. Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545, 1557
(9th Cir. 1989), cert. denied, 494 U.S. 1017 (1990). Accord Jean v. Nelson, 863 F.2d
759, 772 (11th Cir. 1988), aff’d, 496 U.S. 154 (1990).

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Awarding Attorneys’ Fees and Managing Fee Litigation

structed records accurately document the time attorneys have spent is
best left to the discretion of the [trial] court.”162
To establish the market rate, the prevailing party must offer more
than an affidavit showing the attorney’s usual rate; it should offer evidence that this rate is in line with the market rate in the community.163 This evidence generally takes the form of affidavits from other
counsel attesting to their rates or the prevailing market rate.164 Several
courts have stated that, especially in the absence of sufficient documentation, a trial court may rely on its own knowledge of the market.165 It may not, however, substitute its notions of fairness for the
market rate.166
162. Macdissi v. Valmont Indus., 856 F.2d 1054, 1061 (8th Cir. 1988).
163. See Blum v. Stenson, 465 U.S. 886, 896 n.11 (1984) (fee applicant has burden “to produce satisfactory evidence—in addition to counsel’s own affidavits—that
the requested rates are in line with those prevailing in the community for similar
services by lawyers of reasonably comparable skill, experience, and reputation”);
Lucero v. Trinidad, 815 F.2d 1384, 1385 (10th Cir. 1987) (affirming reduced rate because plaintiff’s documentation “showed only the prevailing market rates at [plaintiff’s] firm. [Plaintiff] did not submit any evidence that would show that its rates are
representative of the prevailing market rates in Denver or in Colorado.”).
164. See, e.g., Glover v. Johnson, 934 F.2d 703, 718 (6th Cir. 1991) (affirming
award where “third-party affidavits submitted by plaintiffs established the prevailing
market rate”); Columbus Mills v. Freeland, 918 F.2d 1575, 1580 (11th Cir. 1990) (affirming award where plaintiff “produced more than an affidavit of the attorney who
performed the work. [Plaintiff] produced another affidavit which established that the
rates were reasonable.”); Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292,
1304 (11th Cir. 1988).
165. See, e.g., Norman, 836 F.2d at 1303; Miele v. N.Y. State Teamsters Conference Pension & Ret. Fund, 831 F.2d 407, 409 (2d Cir. 1987); Lucero, 815 F.2d at 1385.
But cf. Begley v. HHS, 966 F.2d 196, 198–99 (6th Cir. 1992) (the explanation cannot
be merely the court’s personal belief concerning the market, “ignor[ing] the only evidence” on the record); NAACP v. City of Evergreen, 812 F.2d 1332, 1336 (11th Cir.
1987) (“A trial judge cannot substitute its own judgment for uncontradicted evidence
without record support.”); Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d
648, 657 (3d Cir. 1986) (district court erred in using hourly rates other than those set
out in uncontested affidavits), vacated on other grounds, 483 U.S. 1015 (1987).
166. See, e.g., Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992) (vacating
award where trial court used lower than market rate for work of second and third
chairs at trial, presumably because it felt their rate should be less than that of lead
attorney: “Prevailing plaintiffs are entitled not to a ‘just’ or ‘fair’ price for legal services, but to the market price for legal services.”).

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31

4. Should the lodestar be adjusted?
In certain cases, the court may adjust the lodestar upward or downward to arrive at the appropriate fee award.167
a. Downward adjustments
i. Incomplete success
Incomplete success is the most common basis for a downward adjustment in attorneys’ fees awards. In Hensley v. Eckerhart, 168 the Supreme Court said that when the plaintiff advances discrete, essentially
unrelated claims,169 and prevails on some but not others, it should not
be compensated for work on the unsuccessful claims. 170 (In documenting their work, plaintiffs’ attorneys are expected, where possible,
to segregate work performed by claim.171) However, in the majority of
cases, courts have rejected the contention that the lodestar should be
adjusted downward for unsuccessful claims, usually finding that the
successful and unsuccessful claims were legally or factually intertwined or that counsel devoted most of its time to the litigation as a
whole.172 The following exceptions may be instructive.
167. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
168. 461 U.S. 424 (1983).
169. That is, claims not involving “a common core of facts or . . . based on related legal theories.” Id. at 435.
170. Id. As the Seventh Circuit put it: “Hensley permits the court to award fees
for losing arguments in support of prevailing claims, but not for losing claims.”
Pressley, 977 F.2d at 298.
171. Hensley, 461 U.S. at 437. See also Von Clark v. Butler, 916 F.2d 255, 259 (5th
Cir. 1990) (award reduced where plaintiffs submitted summaries of time sheets and
claimed the summaries pertained only to work on their successful claim); Norman v.
Hous. Auth. of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988) (“fee counsel
should have maintained records to show the time spent on the different claims”).
However, the First Circuit maintains that “[i]f the fee-seeker properly documents her
claim and plausibly asserts that the time cannot be allocated between successful and
unsuccessful claims, it becomes the fee-target’s burden to show a basis for segregability.” Lipsett v. Blanco, 975 F.2d 934, 938 (1st Cir. 1992).
172. See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1283–84 (10th Cir.
1998) (plaintiffs won claim for removal of religious symbol from official seal but lost
“intertwined” claims); Williams v. Roberts, 904 F.2d 634, 640 (11th Cir. 1990) (plaintiff lost transfer and demotion claims but won discharge claim); Northeast Women’s
Ctr. v. McMonagle, 889 F.2d 466, 475 (3d Cir. 1989), cert. denied, 494 U.S. 1068

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Awarding Attorneys’ Fees and Managing Fee Litigation

•

•

•

•

Although all claims stemmed from a common incident, where
claims alleging supervisory liability could be severed from
claims alleging direct participation in an excessive force lawsuit, it was an abuse of discretion to award fees for the severable, unsuccessful claims.173
Where the plaintiff alleged that his discharge from public employment was in retaliation for exercising his First Amendment rights and that the lack of a pretermination hearing
violated due process, and he prevailed on the due process
claim but not the First Amendment claim, the two claims
were so distinct that the district court did not err in discounting hours spent on the unsuccessful claim.174
Where the plaintiff prevailed against several state officials but
the court dismissed claims against the governor and the attorney general, work in unsuccessfully defending against motions to dismiss was properly held noncompensable. Hours
expended on claims against dismissed defendants are compensable “if ‘plaintiff can establish that such hours also were
fairly devoted to the prosecution of the claim[s] against’ the
defendants over whom plaintiff prevailed. . . . [T]he court
only eliminated those hours specifically attributable to defending against the motions to dismiss the Governor and Attorney General. The hours worked on those motions did not
further successful claims.”175
Where the plaintiffs’ claims for partial and total disability under workers’ compensation were based on “different factual

(1990) (successful RICO claim and unsuccessful trespass claim based on same evidence); Abshire v. Walls, 830 F.2d 1277, 1282–83 (4th Cir. 1987) (plaintiff won strip
search claim but lost false arrest, false imprisonment, and several other related
claims); Dominic v. Consol. Edison Co. of N.Y., 822 F.2d 1249, 1259–60 (2d Cir.
1987) (plaintiff won retaliation claim but lost discrimination claim).
173. Figueroa-Torres v. Todelo-Davilla, 232 F.3d 270, 278–79 (1st Cir. 2000).
174. Winter v. Cerro Gordo County Conservation Bd., 925 F.2d 1069 (8th Cir.
1991).
175. Rode v. Dellarciprete, 892 F.2d 1177, 1185, 1186 (3d Cir. 1990) (quoting
Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary Corp., 487 F.2d 161,
167 (3d Cir. 1973).

Fee-Shifting Statutes

33

•

theories” and “different legal theories,” a deduction for incomplete success was in order.176
Where the plaintiffs prevailed on one of six unrelated claims,
the Seventh Circuit cautioned that, on remand, it would be
error to compensate counsel for only one-sixth of the total
hours expended, because some time was spent on the litigation as a whole, for example, jury selection. The proper
method is to estimate how much time would have been required if the plaintiffs had pursued only the successful
claim.177

ii. Limited success
In Hensley, the Court did not limit downward adjustments in attorneys’ fees for incomplete success to situations involving unrelated
claims; rather, the Court instructed that even if claims are closely related, or there is just one claim, a downward adjustment to the lodestar may be appropriate if the plaintiff achieved only limited success. 178 The gauge of success is the result of the lawsuit in terms of relief; there should not be a downward adjustment simply because not
every argument or theory prevailed. 179 Many defendants have asked
courts to reduce awards because of the plaintiff’s unimpressive results,
176. Hyman Constr. Co. v. Brooks, 963 F.2d 1532, 1539 (D.C. Cir. 1992).
177. Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988). Accord Schultz v.
Hembree, 975 F.2d 572, 577 (9th Cir. 1992).
178. Hensley v. Eckerhart, 461 U.S. 424, 435–36 (1983). The Court noted that
“[t]here is no precise rule or formula” for determining the extent of the reduction; a
court “may attempt to identify specific hours that should be eliminated, or it may
simply reduce the award to account for the limited success. The court necessarily has
discretion in making this equitable judgment. This discretion, however, must be exercised in light of the considerations we have identified.” Id. at 436.
For discussions on how success is measured in civil rights cases, see Villano v.
City of Boynton Beach, 254 F.3d 1302, 1307–08 (11th Cir. 2001), and Coutin v. Young
& Rubicam Puerto Rico, Inc., 124 F.3d 331, 338 (1st Cir. 1997).
179. Hensley, 461 U.S. at 435–37. See Pressley v. Haeger, 977 F.2d 295, 298 (7th
Cir. 1992) (“Hensley permits the court to award fees for losing arguments in support
of prevailing claims.”). For example, the Seventh Circuit directs a court to look at the
“overall results obtained” in determining if a downward adjustment is appropriate
when claims are factually or legally related. Spellan v. Bd. of Educ., 59 F.3d 642, 646
(7th Cir. 1995).

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Awarding Attorneys’ Fees and Managing Fee Litigation

even when the plaintiff prevailed on all claims, or when the unsuccessful claims were closely related to the successful claims. Courts
have usually rejected these requests,180 but there have been exceptions. 181
Lower courts have wrestled with the “limited success” inquiry in
various other situations:
• Where the plaintiff’s judgment was vacated by the Supreme
Court but reinstated on remand, the plaintiff was entitled to
compensation for unsuccessfully opposing the defendant’s
petition for certiorari:
If a plaintiff ultimately wins on a particular claim, she is entitled to
all attorney’s fees reasonably expended in pursuing that
claim—even though she may have suffered some adverse rulings.
Here, although the Supreme Court vacated our judgment, the
Court’s order was simply a temporary setback on the way to a
complete victory for plaintiff. . . . [A] plaintiff who is unsuccessful

180. See, e.g., Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. 1998) (trial court
erred in denying fees, as a matter of law, incurred by unsuccessful argument in support of ultimately successful claim); Goos v. Nat’l Ass’n of Realtors, 68 F.3d 1380,
1384–88 (D.C. Cir. 1995); Jane L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995);
Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992), cert. denied, 113 S. Ct. 978 (1993);
Herrington v. County of Sonoma, 883 F.2d 739, 745 (9th Cir. 1989); Jackson v. Crews,
873 F.2d 1105, 1109–10 (8th Cir. 1989). See Coutin, 124 F.3d at 339, for a discussion
of “limited success” scenarios as they relate to lodestar reductions in the First Circuit.
See Jaffee, 142 F.3d at 414–16, for a summary of Seventh Circuit case law on awarding
fees for unsuccessful arguments.
181. See, e.g., Andrews v. United States, 122 F.3d 1367, 1375 (11th Cir. 1997)
(abuse of discretion to not give greater weight to plaintiff’s limited success in
CERCLA case); Fleming v. Ayers & Assocs., 948 F.2d 993, 999 (6th Cir. 1991) (no
abuse of discretion to reduce award where plaintiff lost at trial and prevailed only on a
claim suggested to her by the court post-trial, and even on that claim she received
only a portion of back pay, although she requested reinstatement and full back pay);
Gilbert v. Little Rock, Ark., 867 F.2d 1063, 1066–67 (8th Cir.) (upholding downward
adjustment of the fee award where plaintiffs lost on most claims and most individual
plaintiffs received no relief), cert. denied, 493 U.S. 812 (1989); Spanish Action Comm.
of Chicago v. City of Chicago, 811 F.2d 1129, 1133–36 (7th Cir. 1987) (80% reduction
in fee award where plaintiff sought primarily punitive damages and won only compensatory damages, and against only one of many defendants).

Fee-Shifting Statutes

35

at a stage of litigation that was a necessary step to her ultimate victory is entitled to attorney’s fees even for the unsuccessful stage. 182

•

•

However, where the court of appeals vacated a judgment for
the plaintiffs and remanded for retrial, and the plaintiffs then
dropped the suit because they had already achieved much of
the desired relief, the court upheld the denial of compensation for work on the unsuccessful appeal. It may be proper to
award fees for an unsuccessful appeal if the plaintiff prevails
on retrial, the court said, “[b]ut in this case, the litigants decided to abandon their claims after losing on appeal. . . . Although they were prevailing parties in the case
overall, it is clear that nothing associated with the appeal
contributed to any favorable result achieved by the litigation.”183
Where the plaintiffs received fees for obtaining a favorable
consent decree, they were also awarded fees for unsuccessfully
defending against the defendant’s motion to modify the consent decree:
[T]he plaintiffs’ work . . . was directed toward the protection of
rights originally and unambiguously vindicated in the consent decree . . . . [I]n holding that the modification should be allowed, we
found it necessary to review and evaluate the full range of related
reforms that were . . . implemented by the terms of the consent decree. . . . [T]he district court did not abuse its discretion or err as a
matter of law in concluding that the matters at issue . . . were so
intertwined with the original claims that attorneys’ fees for work on
those proceedings should be awarded as to a still “prevailing
party.”184

•

The Seventh Circuit observed that confusion can arise if a
district court deducts from the plaintiff’s proposed award for

182. Cabrales v. County of Los Angeles, 935 F.2d 1050, 1053 (9th Cir. 1991).
183. Clark v. City of Los Angeles, 803 F.2d 987, 993 (9th Cir. 1986).
184. Plyler v. Evatt, 902 F.2d 273, 280, 281 (4th Cir. 1990). The court added that
its holding “should not be construed as guaranteeing attorneys’ fees after resolution of
every dispute involving the consent decree. The initial status of ‘prevailing party’ does
not entitle appellees to compensation when resistance to modification is unsuccessful
and the position taken was not essential to the preservation of the integrity of the
consent decree as a whole.” Id.

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Awarding Attorneys’ Fees and Managing Fee Litigation

•

both partial success and excessive hours. To avoid this problem, the court urged close adherence to the procedures set out
in Hensley: “First the district court should eliminate all hours
claimed that are either not ‘reasonably expended’ or inadequately explained. Only then should it adjust the total number of ‘reasonably expended’ hours so that the final award is
reasonable in relation to the overall results obtained by the
plaintiff.”185
The Fifth Circuit, in Migis v. Pearle Vision, Inc.,186 held that
the trial court did not give adequate consideration to the
eighth Johnson factor, “the amount involved and the result
obtained,” when it lowered attorneys’ fees by only 10% for
limited success.187 In Migis, the plaintiff sought twenty-six
times the damages she was awarded in her private civil rights
case, and the fee award was six and one-half times the amount
of awarded damages. The appellate court found that the lower
court abused its discretion by “failing to give adequate consideration to the result obtained relative to the fee award, and
the result obtained relative to the result sought.”188

iii. Low or nominal damages
An obvious case of limited success is an award of only nominal damages. The Supreme Court held that the plaintiff receiving such a
judgment may be awarded “low fees or no fees,”189 but it did not say
that all awards of nominal damages must result in a denial of fees or a
significant downward adjustment—the “extent of success” inquiry
still applies. 190 The Court provided little guidance as to how to gauge
185. Spanish Action Comm., 811 F.2d at 1138.
186. 135 F.3d 1041 (5th Cir. 1998).
187. Id. at 1047–48. See supra note 108 for all factors set forth in Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974).
188. Migis, 135 F.3d at 1048.
189. Farrar v. Hobby, 506 U.S. 103, 115 (1992).
190. In Farrar, 506 U.S. 103, the Fifth Circuit had reversed the trial court’s award
of fees on the ground that a plaintiff who wins only nominal damages is not a prevailing party. The Supreme Court rejected that view (see supra text accompanying
notes 22–23) but held that such a plaintiff, albeit a prevailing party, may be denied an
award based on lack of success.

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37

the success of a party receiving nominal damages, 191 but Justice
O’Connor’s concurrence cited several relevant factors: “[A] substantial difference between the judgment recovered and the recovery
sought suggests that the victory is in fact purely technical”192 and less
deserving of fees. Thus, the relief sought by the plaintiff is a consideration. However, this factor is not necessarily decisive, because
“an award of nominal damages can represent a victory in the sense of
vindicating rights even though no actual damages are proved.”193 The
court should look to the importance of the issue on which the plaintiff
prevails, for example, whether the plaintiff’s success serves “some
public goal,” such as deterring misconduct.194
The Seventh Circuit adopted Justice O’Connor’s test for determining “whether a prevailing party has achieved a mere technical
victory inappropriate for fees.”195 It directed district courts to “‘look
at the difference between the judgment recovered and the recovery
sought, the significance of the legal issue on which the plaintiff prevailed and, finally, the public purpose of the litigation.’” 196 The Ninth
Circuit has cautioned that “[t]he Farrar exception, which would allow
the court to dispense with the calculation of a lodestar and simply establish a low fee or no fee at all, is limited to cases in which the civil
rights plaintiff ‘prevailed’ but received only nominal damages and
achieved only ‘technical’ success.”197
191. Although the Court found fees inappropriate in the case sub judice, it gave
little explanation apart from observing that the plaintiff, who sought $17 million in
damages, had “accomplished little.” Farrar, 506 U.S. at 114. The majority did not
respond to the dissent’s view that, having determined that the plaintiff was a prevailing party, the Court should have remanded the case for the trial court to assess what,
if anything, would be a reasonable award under the circumstances. Id. at 124 (White,
J., concurring in part and dissenting in part).
192. Id. at 121 (O’Connor, J., concurring).
193. Id.
194. Id. at 121, 122.
195. Johnson v. Lafayette Fire Fighters Ass’n Local 472, 51 F.3d 726, 731 (7th Cir.
1995).
196. Id. (quoting Cartwright v. Stamper, 7 F.3d 106, 109 (7th Cir. 1993)).
197. Morales v. City of San Rafael, 96 F.3d 359, 362–63 (9th Cir. 1996) (compensatory damages of $17,500, while substantially less than sought, were not nominal),
amended by, reh’g en banc denied, 108 F.3d 981 (1997).

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Awarding Attorneys’ Fees and Managing Fee Litigation

Two cases shed further light on when district courts may jettison
the lodestar to award low fees or no fees. The Seventh Circuit held
that when damages are low, but not nominal, and fees incurred are
unreasonable, both ex post and ex ante, Farrar allows a judge to use a
method other than the lodestar to devise an award.198 The Eighth Circuit held that it was not an abuse of discretion to award no fees when
the plaintiff’s victory in a civil rights case amounted to $1 in compensatory damages and the message of great public importance sent to the
defendant had been heard before. 199
iv. Disproportionately low damages award
At least in cases that serve the public interest, the fact that the lodestar
far exceeds the damage award is not itself grounds for a downward
adjustment in attorneys’ fees. In Riverside v. Rivera, 200 the plaintiffs,
who were victimized by police misconduct, were awarded more than
$200,000 in fees (based on the lodestar) even though the verdict was
for just $33,000. The Court upheld the award, noting that the civil
rights fee-shifting statute was adopted precisely because damages
awards in civil rights cases are often small, which made it difficult for
the plaintiffs to secure legal representation. However, only four justices joined the plurality opinion. Justice Powell cast the deciding vote
in a concurrence that noted that the case involved the vindication of
constitutional rights and a substantial gain to the public interest. He
stated that “[w]here recovery of private damages is the purpose of a
civil rights litigation, a district court, in fixing fees, is obligated to give
primary consideration to the amount of damages awarded as compared to the amount sought,” and noted that it is a “rare case in which
an award of private damages can be said to benefit the public interest
to an extent that would justify the disproportionality between damages and fees reflected in this case.” 201 The plurality did not say
whether it agreed.
198. Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999).
199. Milton v. Des Moines, Iowa, 47 F.3d 944, 946 (8th Cir. 1995) (police brutality) (noting, “Were we the district court, we might have reached a different result;
nevertheless, we cannot say that the district court abused its discretion.” Id. at 947.).
200. 477 U.S. 561 (1986).
201. Id. at 585, 586 n.3 (Powell, J., concurring).

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39

One district court, relying on Justice Powell’s concurrence, interpreted Rivera as limiting disproportionate fees to cases that involve
the public interest while requiring proportionality in cases involving
only private damages; however, the Second Circuit reversed the district court’s decision and acknowledged that “Rivera provides no
guidance. It does not speak to a situation . . . where the monetary
damage recovery benefits a single individual.” 202 The Second Circuit
laid down its own rule: The lodestar “should not be reduced simply
because a plaintiff recovered a low damage award.”203 The Third Circuit has adopted the identical rule.204 Likewise, the First and Seventh
Circuits have said that “[disproportionality] alone does not make the
award unreasonable.” 205 The Eleventh Circuit has said that “use of a
multiplier [to achieve proportionality between damages and fees] as a
sole or dominant criterion” is improper.206 The Fifth Circuit agrees
that “the district court should avoid placing undue emphasis on the
amount recovered.”207

202. Cowan v. Prudential Ins., 935 F.2d 522, 526 (2d Cir. 1991).
203. Id.
204. Davis v. Southeastern Pa. Transp. Auth., 924 F.2d 51, 55 (3d Cir. 1991);
Northeast Women’s Ctr. v. McMonagle, 889 F.2d 466, 476–77 (3d Cir. 1989), cert.
denied, 494 U.S. 1068 (1990) (rejecting contention that disproportionality holding in
Rivera applies only in civil rights cases); Cunningham v. City of McKeesport, 807 F.2d
49, 53–54 (3d Cir. 1986) (rejecting suggestion that disproportionate fee award is permissible only if suit serves a substantial public interest), cert. denied, 481 U.S. 1049
(1987). See also Washington v. Philadelphia County Court of Common Pleas, 89 F.3d
1031, 1041 (3d Cir. 1996) (“a court may not diminish counsel fees in a section 1983
action to maintain some ratio between the fees and the damages awarded”).
205. Domegan v. Ponte, 972 F.2d 401, 421 (1st Cir. 1992), vacated and remanded
in light of Farrar v. Hobby, 506 U.S. 103 (1993); Cange v. Stotler & Co., 913 F.2d 1204,
1211 (7th Cir. 1990). See also Thomas v. Nat’l Football League Players Ass’n, 273 F.3d
1124 (D.C. Cir. 2001) (the fact that fees are nearly five times recovery does not make
them excessive).
206. Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494 (11th Cir. 1994). In a
later case, the court hinted that Rivera’s rejection of proportionality is limited to civil
rights actions. Andrews v. United States, 122 F.3d 1367, 1376 (11th Cir. 1997).
207. Von Clark v. Butler, 916 F.2d 255, 260 (5th Cir. 1990). But cf. Migis v.
Pearle Vision, 135 F.3d 1041 (5th Cir. 1998), discussed supra text accompanying notes
186–88.

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Awarding Attorneys’ Fees and Managing Fee Litigation

The First Circuit noted that disproportionality is nevertheless “a
relevant factor to be considered in setting the size of the fee.”208 The
court did not elaborate, but it appears that disproportionality could
come into play when determining if counsel spent an unreasonable
number of hours on the case in light of the probable outcome.209
Of course, extreme disproportionality may result when the plaintiff receives nominal damages only. As noted earlier, the Supreme
Court held that in such cases it may be appropriate to award the
plaintiff no fees or only low fees. 210
v. Rejecting a Rule 68 settlement offer
In Marek v. Chesny, 211 the Supreme Court held that under the civil
rights fee-shifting statute, if the plaintiff rejects a settlement offer
made pursuant to Federal Rule of Civil Procedure 68, and the offer
proves more favorable to the plaintiff than the eventual judgment,
attorneys’ fees incurred after the offer are noncompensable. The
Court so held because the statute provides for fees “as part of the
costs,”212 thus bringing the fee award within the ambit of Rule 68’s
settlement rejection provision.213 If, under a different fee-shifting
208. Domegan, 972 F.2d at 421.
209. See Riverside v. Rivera, 477 U.S. 561, 590 (1986) (Rehnquist, C.J., dissenting) (“I find it hard to understand how an attorney can be said to have exercised
‘billing judgment’ in spending such huge amounts of time on a case ultimately worth
only $33,350.”). In the context of that case, Chief Justice Rehnquist’s argument was
rejected (i.e., the Court did not consider the hours expended unreasonable even
though the damage award was low). However, the Court did not reject the notion that
in some cases a small award would be relevant to a determination that counsel spent
excessive time on the case.
See also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 296 (1st Cir.
2001) (proportionality not an issue where prevailing party limited fee request to prevailing claim).
210. Farrar v. Hobby, 506 U.S. 103 (1992), discussed supra text accompanying
notes 189–94.
211. 473 U.S. 1 (1985).
212. 42 U.S.C. § 1988 (2000).
213. Rule 68 states, in pertinent part, that “[a]t any time more than ten days before the trial begins, a party defending against a claim may serve upon the adverse
party an offer to allow judgment to be taken against the defending party . . . . An offer
not accepted shall be deemed withdrawn . . . . If the judgment finally obt ained by the

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41

statute, fees are not considered costs, a different result should obtain.214 Of course, rejection of an informal settlement agreement not
made pursuant to Rule 68 does not affect an award of fees.215
vi. Factors reflected in the lodestar
District courts have been reversed for making downward adjustments
in attorneys’ fees awards based on factors that are subsumed in the
lodestar. In one case, the district court based a downward adjustment
on, inter alia, insufficient documentation and mediocre performance.
The Ninth Circuit said that these factors should be reflected in the
lodestar and are not a basis for adjusting the lodestar.216 Similarly, the
Tenth Circuit held that a district court abused its discretion in making
a downward adjustment based on simplicity of issues because that
factor should be reflected in the lodestar.217 Furthermore, it held that
to make a reduction based on simplicity “could lead to the incongruous result of attorneys being less likely to take a case where a person’s
civil rights have been obviously and clearly violated.” 218

offeree is not more favorable than the offer, the offeree must pay the costs incurred
after the making of the offer.” Fed. R. Civ. P. 68.
214. See, e.g., Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1337 (4th
Cir.) (Rule 68 cannot preclude fees payment pursuant to 42 U.S.C. § 2000e5(g)(2)(B)(i), but rejection of settlement offer can be considered in determining if or
how much fees should be awarded), cert. denied, 519 U.S. 993 (1996); Int’l Nickel Co.
v. Trammel Crow Distrib. Corp., 803 F.2d 150, 157 n.2 (5th Cir. 1986) (rejection of
Rule 68 offer did not preclude fee award where state fee-shifting statute authorized
fees “in addition” to costs rather than “as part of costs”).
215. See Cole v. Wodziak, 169 F.3d 486, 487 (7th Cir. 1999) (clear error to reduce lodestar because of oral settlement offer).
216. Cunningham v. Los Angeles, 859 F.2d 705, 710–13 (9th Cir. 1988) (court
acknowledged that in rare cases, quality of representation may be the basis for an adjustment to the lodestar, but found that in this case, there was no showing that the
mediocre performance was not subsumed in the lodestar).
217. Cooper v. Utah, 894 F.2d 1169, 1172 (10th Cir. 1990).
218. Id.

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vii. Other downward adjustments
The Seventh Circuit held that a downward adjustment in a fee award
for the plaintiff’s refusal to meet with a law clerk to discuss mediation
was an abuse of discretion. 219
b. Upward adjustments
i. Novelty or complexity of issues
The Supreme Court has stated on several occasions that the novelty
and complexity of the litigation are reflected in the lodestar and
should not be the basis of an upward adjustment in attorneys’ fees.220
Therefore, the Eighth Circuit overturned a fee enhancement for
“complexity of the case and the absence of court precedent,” stating
that “counsel expended greater time and effort [on account of these
factors]. Consequently, counsel’s lodestar figure directly reflects [these
factors], and an enhancement . . . would constitute double counting.”221 Likewise, the Fifth Circuit rejected an enhancement based on
novelty and difficulty because
[a]ll counsel competent to handle a case such as this one are expected to be
able to deal with complex and technical matters; this expertise is reflected in
their regular hourly rate. . . . Still further, the difficulty in the handling of
the case is adequately reflected in the number of hours billed.222

ii. Exceptional results or quality of representation
The Supreme Court has stated that the exceptional results or quality
of representation of a case are reflected in the lodestar and thus are
generally not a basis for a fee enhancement.223 In a rare case, in which
the success or quality of representation transcends what can be expected given the hourly rates and number of hours expended, the

219. Connolly v. Nat’l Sch. Bus Serv., Inc., 177 F.3d 593, 598 (7th Cir. 1999).
220. See, e.g., Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478
U.S. 546, 565 (1986) (Delaware Valley I); Blum v. Stenson, 465 U.S. 886, 898–900
(1984).
221. Hendrickson v. Branstad, 934 F.2d 158, 163 (8th Cir. 1991).
222. Shipes v. Trinity Indus., 987 F.2d 311, 321 (5th Cir. 1993).
223. Blum, 465 U.S. at 899.

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lodestar may be enhanced. 224 The burden of documenting the appropriateness of such an upward enhancement rests on the applicant. 225
If an enhancement is granted, it must be accompanied by “detailed
findings as to why the lodestar amount was unreasonable, and in particular, as to why the quality of representation was not reflected in the
[lodestar].” 226
Lower courts have heeded the admonition that an upward adjustment for outstanding representation should be rare. One exceptional case elucidates the rule: Counsel was appointed for a jury trial
beginning three days later, took the case blind, and offered “superb
representation under the most adverse circumstances.”227 More typical was a Fifth Circuit opinion reversing an enhancement for exceptional results where the “district court asserted that the prevailing
rates for attorneys of similar skill, experience, and reputation were not
sufficient to compensate [counsel at bar], but it articulated no basis
for this finding.” 228 Similarly, a First Circuit panel acknowledged the
“strength of the attorneys’ performance [and] the magnitude of their
triumph,” but it nevertheless reversed an upward adjustment: “[W]e
224. Id. at 898 –900. That such enhancements should be rare was emphasized in
Delaware Valley I, 478 U.S. at 567– 68 (reversing upward adjustment because plaintiff
“presented no specific evidence as to what made the results it obtained during this
phase so ‘outstanding’ nor did it provide an indication that the lodestar figure . . . was
far below awards made in similar cases where the court found equally superior quality
of performance”).
225. Delaware Valley I, 478 U.S. at 567–68; Blum, 465 U.S. at 898.
226. Blum, 465 U.S. at 900. Thus, for example, in Shipes v. Trinity Industries, 987
F.2d 311, 322 (5th Cir. 1993), the Fifth Circuit said that the enhancement for exceptional results may have been warranted, since “victory was complete on all issues . . . resulted in a substantial award of monetary damages. . . and very importantly,
[provided] future protection against discrimination in the form of injunctive relief.”
The court noted that enhancement based on exceptional results is proper in rare cases
only and must be “supported by specific evidence and detailed findings by the district
court.” Id. at 322 n.9. It remanded the case for the district court to determine
“whether it is customary in the area for attorneys to charge an additional fee above
their hourly rates for an exceptional result after lengthy and protracted litigation.” Id.
at 322.
227. Hollowell v. Gravett, 723 F. Supp. 107, 110 (E.D. Ark. 1989).
228. Alberti v. Klevenhagen, 896 F.2d 927, 936 (5th Cir.), vacated on other
grounds, 903 F.2d 352 (5th Cir. 1990).

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Awarding Attorneys’ Fees and Managing Fee Litigation

see nothing in the record that indicates that the services and results
overshadowed, or somehow dwarfed, the lodestar.” 229
iii. Other upward adjustments
Two circuits have held that an upward adjustment in the fee award is
appropriate to compensate for “undesirability” of the case.230 The
Ninth Circuit affirmed an upward adjustment in a case in which
counsel’s obligation to the class would continue for another ten
years.231
iv. Delay in payment
The Supreme Court has stated that a trial court has discretion to
compensate the award recipient for delay in payment.232 This can be

229. Lipsett v. Blanco, 975 F.2d 934, 942–43 (1st Cir. 1992).
230. See Guam Soc’y of Obstetricians & Gynecologists v. Ada, 100 F.3d 691,
697–99 (9th Cir. 1996) (holding that fee multiplier was appropriate in civil rights
action that successfully challenged constitutionality of Guam anti-abortion statute);
Alberti, 903 F.2d at 352 (enhancement of fee award to compensate for “case undesirability” was proper because it was required to attract competent counsel for prison
conditions litigation and it was supported by testimony from an expert economist on
how the local market treats such cases).
231. Wing v. Asarco Inc., 114 F.3d 986, 989 (9th Cir. 1997).
232. Missouri v. Jenkins, 491 U.S. 274, 284 (1989) (“an appropriate adjustment
for delay in payment—whether by application of current rather than historic hourly
rates or otherwise—is within contemplation of [section 1988]”). See also Gates v.
Deukmejian, 987 F.2d 1392, 1407 (9th Cir. 1992) (“length of the delay in payment . . . is a consideration in deciding whether an award of current rather than historic rates is warranted”); Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992) (appellate
court held that courts have discretion to compensate for delay by using “what rate is
necessary” and rejected past practice of applying current rates to recent phases of
protracted litigation and historic rates to earlier phases), cert. denied, 113 S. Ct. 978
(1993).
This rule does not apply in suits against the United States. In Library of Congress
v. Shaw, 478 U.S. 310 (1985), the Court held that the “no-interest” rule, preventing
recovery of interest from the United States absent a waiver of sovereign immunity,
applies to fee awards. Therefore, an award against the United States should generally
not be enhanced for delayed payment. This no-interest rule also does not apply to
suits against states. Jenkins, 491 U.S. at 280–82 & n.3.

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45

achieved by calculating the lodestar in current dollars233 or by factoring in interest, usually at the prime rate,234 after the lodestar has been
computed using historic rates.235 Courts should be careful, however,
not to mix methods.236 When a delay is de minimus, a delay enhancement may not be necessary.237
The circuits are split on whether interest runs from the date the
trial court rules the party is entitled to fees or from the date the trial
court quantifies the fee.238

233. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir.
1988) (expressing preference for current rates).
234. See, e.g., Alberti v. Klevenhagen, 896 F.2d 927, 938 (5th Cir.) (holding court
erred in using municipal bond interest rates instead of prime rate), vacated on other
grounds, 903 F.2d 352 (5th Cir. 1990); Lattimore v. Oman Constr., 868 F.2d 437, 438
n.2 (11th Cir. 1989) (approving use of IRS adjusted prime rate); Skelton v. Gen. Motors Corp., 860 F.2d 250, 255 (7th Cir. 1988), cert. denied , 493 U.S. 810 (1989) (courts
should use prime rate).
235. See Walker v. HUD, 99 F.3d 761, 773 (5th Cir. 1996) (6% enhancement for
delay approximating 2.96% interest compounded annually was not an abuse of discretion).
236. See, e.g., id. (noting court may use either unenhanced lodestar based on current rates or lodestar using historical rates plus a delay enhancement, but not both);
In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1305 (9th Cir. 1994)
(stating two ways to compensate for delay: (1) current rates or (2) historic rates plus
prime rate enhancement; and holding it an abuse of discretion to use hybrid of current rate and last billed rate).
237. Smith v. Freeman, 921 F.2d 1120, 1123 (10th Cir. 1990) (holding enhancement inappropriate where delay is de minimus and there is no showing that counsel’s
hourly rate increased from the time the action commenced).
238. Most circuits require interest calculation from the date of fee entitlement.
La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 332 & n.24 (5th Cir.), cert. denied,
516 U.S. 862 (1995); Friend v. Kolodzieczak, 72 F.3d 1386, 1391 –92 (9th Cir. 1995);
BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045, 1052–53 (11th Cir.
1994); Jenkins v. Missouri, 931 F.2d 1273, 1276 (8th Cir.), cert. denied, 112 S. Ct. 338
(1991); Mathis v. Spears, 857 F.2d 749, 760 (Fed. Cir. 1988).
The Third, Seventh, and Tenth Circuits calculate interest from the date the fee
award is quantified. Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001) (discussing circuit split); MidAmerica Fed. Sav. & Loan Ass’n v. Shearson/American Express, Inc., 962 F.2d 1470, 1475 (10th Cir. 1992) (fees awarded as a discovery sanction); Fleming v. County of Kane, 898 F.2d 553, 565 (7th Cir. 1990) (selecting date of
quantification, without explanation).

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Awarding Attorneys’ Fees and Managing Fee Litigation

The Ninth Circuit held that a delay in payment caused by appeal
is solely redressed by an award of interest pursuant to 28 U.S.C.
§ 1961.239
Courts also have discretion to award interim fees in order to compensate for a delay in payment.240
v. Risk
In City of Burlington v. Dague, 241 the Court held that risk or contingency of nonrecovery is not a basis for an upward enhancement. In
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,242 the
Court reversed a risk enhancement, but only four justices maintained
that such enhancements are always inappropriate. Justice O’Connor
voted to reverse the enhancement in the case at bar, but her concurrence maintained that enhancement for risk is sometimes in order.
Justice Blackmun’s dissent, joined by three justices, agreed that such
enhancements are sometimes in order but differed on what circumstances warrant them. The result, pre-Dague, was confusion in the
lower courts over whether and when to grant such enhancements.
vi. Nonmarket factors
Some upward adjustments have been reversed because they were
based on factors that did not pertain to the market rate for fees. For
example, the Fifth Circuit reversed an enhancement that was based on
potential conflicts of interest and the fact that the time expended on
the case prevented counsel from obtaining other clients; the court

239. Corder v. Brown, 25 F.3d 833, 838 (9th Cir. 1994) (abuse of discretion to
recalculate lodestar using current hourly rate).
240. See supra text accompanying notes 41–45.
241. 505 U.S. 557 (1992). The Dague Court construed the Solid Waste Disposal
Act, 42 U.S.C. § 6972(e), and the Clean Water Act, 33 U.S.C. § 1365(d), but the rationale applies to similar statutes as well. See, e.g., Murphy v. Reliance Standard Life
Ins. Co., 247 F.3d 1313, 1314–15 (11th Cir. 2001) (ERISA); Cann v. Carpenters’ Pension Trust Fund for N. Cal., 989 F.2d 313, 318 (9th Cir. 1993) (ERISA).
242. 483 U.S. 711 (1987) (Delaware Valley II).

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noted that these factors are not bases for increasing fee rates in the
private sector.243
5. Are there special considerations for awards to defendants?
When defendants request fee awards, the calculation is largely the
same, but additional factors come into play. Denying or reducing fees
is appropriate if the plaintiff is impecunious,244 and the Seventh Circuit finds a reduction in order if the defendant fails to mitigate (for
example, by moving for dismissal or summary judgment). 245 A reduction for failure to mitigate could apply to prevailing plaintiffs as
well—since they are entitled to compensation only for “reasonable”
hours—but will more likely apply to defendants, since defending
against frivolous suits often does not require substantial time.246
6. What are the procedural aspects of fee disputes?
a. Case law
The Supreme Court has said little about the procedural aspects of fee
disputes, apart from its admonition that such disputes should not
spawn “a second major litigation.”247 The courts of appeals, however,
have established certain norms.

243. Alberti v. Klevenhagen, 896 F.2d 927, 934 (5th Cir.), vacated on other
grounds, 903 F.2d 352 (5th Cir. 1990).
244. See, e.g., Toliver v. County of Sullivan, 957 F.2d 47, 49–50 (2d Cir. 1992);
Alizadeh v. Safeway, 910 F.2d 234, 238 (5th Cir. 1990) (award may be reduced but not
eliminated); Miller v. Los Angeles, 827 F.2d 617, 621 n.5 (9th Cir. 1987); Munson v.
Friske, 754 F.2d 683, 697–98 (7th Cir. 1985); Charves v. Western Union, 711 F.2d 462,
465 (1st Cir. 1983); Durrett v. Jenkins Brickyard, 678 F.2d 911, 917 (11th Cir. 1982)
(award may be reduced but not eliminated). Although a defendant’s indigence may be
a special circumstance that warrants denial of an award to a prevailing plaintiff (see,
e.g., Toliver, losing party’s resources may be taken into account in any fee case), the
ability to pay plays a more central role when defendants seek an award. See, e.g., Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1544 (11th Cir. 1985) (where defendant seeks award, plaintiff’s financial resources are a “thirteenth factor” to add to the
twelve Johnson factors).
245. Leffler v. Meer, 936 F.2d 981, 987 (7th Cir. 1991).
246. See Hamilton v. Daley, 777 F.2d 1207, 1215–16 (7th Cir. 1985).
247. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

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Awarding Attorneys’ Fees and Managing Fee Litigation

Many courts agree that there is no need to hold an evidentiary
hearing in an attorneys’ fees case “when a record has been fully developed through briefs, affidavits, and depositions.”248 Several courts
have suggested that an evidentiary hearing is necessary in certain circumstances. 249 The Eighth Circuit requires a hearing when “serious
factual disputes surround an application for attorney fees.”250 Likewise, the D.C. Circuit requires a hearing when “material issues of fact
that may substantially affect the size of the award remain in wellfounded dispute.”251 The Ninth Circuit has stated that “[w]hen a factual dispute exists as to whether a party prevailed, it is wise for the district court to conduct a hearing to resolve the conflict”252 and has suggested that a hearing is required when there are vigorous disputes over
the elements constituting the fee award.253 The Fifth Circuit requires a
hearing where there are “apparent factual disputes,” 254 especially if
such a hearing is requested.255 The Eleventh Circuit maintains that a
hearing is not necessary if disputes concern “matters as to which the
courts possess expertise. . . [, such as the] reasonableness of the fee,
the reasonableness of the hours and the significance of the outcome,”
but one is necessary “where there is a dispute of material historical

248. Robinson v. City of Edmond, 160 F.3d 1275, 1286 (10th Cir. 1998). For
cases rejecting the contention that a hearing must be or should have been held, see
Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3, 7 (1st Cir. 1991); Carey v. Crescenzi, 923 F.2d 18, 22 (2d Cir. 1991); Norman v. Housing Authority of Montgomery,
836 F.2d 1292, 1303 (11th Cir. 1988); Bailey v. Heckler, 777 F.2d 1167, 1171 (6th Cir.
1985); Thomason v. Schweiker, 692 F.2d 333, 336 (4th Cir. 1982); National Association
of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319, 1330 (D.C. Cir. 1982).
249. See Fed. R. Civ. P. 54(d)(2)(D), quoted infra text accompanying note 275,
which provides that district courts may adopt rules establishing special procedures for
resolving fee-related disputes without resorting to an extensive evidentiary hearing.
250. Herrera v. Valentine, 653 F.2d 1220, 1223 (8th Cir. 1981).
251. Concerned Veterans, 675 F.2d at 1330.
252. Church of Scientology v. United States Postal Serv., 700 F.2d 486, 494 (9th
Cir. 1983).
253. Id.
254. Henson v. Columbus Bank & Trust Co., 651 F.2d 320, 329 (5th Cir. 1981).
255. King v. McCord, 621 F.2d 205, 206 (5th Cir. 1980).

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49

fact such as whether or not a case could have been settled without litigation or whether attorneys were duplicating each other’s work.” 256
Several courts have held that if the district court orders an award
lower than that proposed and documented by the plaintiff, it must
provide an explanation. 257 Numerous reversals have resulted because
the district court failed to explain how it arrived at a fee award.258 The
Eleventh Circuit has stated that the court “must articulate the decisions it made, give principled reasons for those decisions, and show its
calculation. . . . If the court disallows hours, it must explain which
hours are disallowed and show why an award of these hours would be
improper.”259 The Sixth Circuit has stated that “the district court
must not only articulate findings of fact and conclusions of law regarding the inclusion of hours amounting to the fee awarded, but
those regarding the exclusion of hours as well.”260 The First Circuit has
stated that the court must “explicate the basis for its fee
awards . . . . Although findings are necessary, however, they need not
be ‘infinitely precise,’ . . . ‘deluged with details,’ or even ‘fully articulated.’” 261
Despite these norms, at least in certain circumstances most circuits permit a trial court to make deductions without identifying ex256. Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir.
1988).
257. See United Steelworkers v. Phelps Dodge, 896 F.2d 403, 406 (9th Cir. 1990);
Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), cert. denied, 481 U.S.
1049 (1987); Gekas v. Attorney Registration & Disciplinary Comm’n, 793 F.2d 846,
851 (7th Cir. 1986).
258. See, e.g., Case v. Unified Sch. Dist. No. 233, 157 F.3d 1243, 1255 (10th Cir.
1998); Fleming v. Ayers & Assocs., 948 F.2d 993, 1000 (6th Cir. 1991); Frank Music
Corp. v. Metro-Goldwyn-Mayer, Inc. 886 F.2d 1545, 1556–57 (9th Cir. 1989), cert.
denied, 494 U.S. 1017 (1990); Student Pub. Interest Research Group of N.J., Inc. v.
AT&T Bell Labs., 842 F.2d 1436, 1456 (3d Cir. 1988); Norman, 836 F.2d at 1304;
Johnson v. New York City Transit Auth., 823 F.2d 31, 33 (2d Cir. 1987).
259. Norman, 836 F.2d at 1304.
260. Glass v. HHS, 822 F.2d 19, 22 (6th Cir. 1987).
261. Foley v. City of Lowell, 948 F.2d 10, 20 (1st Cir. 1991) (citing Foster, 943
F.2d at 141; Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir. 1991); Grendel’s Den,
Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984); United States v. Metro. Dist.
Comm’n, 847 F.2d 12, 16 n.4 (1st Cir. 1988); Gabriele v. Southworth, 712 F.2d 1505,
1507 (1st Cir. 1983); Jacobs v. Mancuso, 825 F.2d 559, 564 (1st Cir. 1987)).

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Awarding Attorneys’ Fees and Managing Fee Litigation

actly what hours it disallows. The Tenth Circuit endorses a “general
reduction of hours claimed in order to achieve what the court determines to be a reasonable number.”262 The Seventh Circuit held that a
district court acted within its discretion when it cut a lump sum rather
than evaluate every entry: This was a “practical means of trimming
fat” from an inadequately documented petition. 263 The D.C. Circuit
has endorsed this method,264 as have the Second and Ninth Circuits,
in cases in which the fee petition was voluminous.265 The Third Circuit, which once stated that the district court must identify all disallowed hours,266 permitted a 10% pro rata reduction in compensable
hours in light of the “complex and lengthy record” in a case. 267 The
Ninth Circuit emphasized that when a court makes a percentage reduction, it still must review the record, and it should explain why it
chose the particular percentage. 268
The Seventh Circuit also approved a reduction arrived at by sampling billable time sheets. The district court had closely examined two
or three particular tasks described in the fee application and applied
its findings to the remaining hours claimed. The court informed
counsel that it would do this and gave opposing counsel the opportunity to suggest the specific work to be scrutinized. Although it affirmed the lower court’s decision, the Seventh Circuit noted that “it
might be a better practice to allow both the party opposing the fee

262. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1203 (10th Cir. 1986).
263. Tomazzoli v. Sheedy, 804 F.2d 93, 98 (7th Cir. 1986). See also In re OhioSealy Mattress, 776 F.2d 646 (7th Cir. 1985). The Seventh Circuit expressed reservations about a percentage reduction where a great deal of money was at stake. In re
Cont’l Ill. Sec. Litig., 962 F.2d 566, 570 (7th Cir. 1992) (common fund case).
264. Copeland v. Marshall, 641 F.2d 880, 903 (D.C. Cir. 1980) (en banc).
265. Gates v. Deukmejian, 987 F.2d 1392, 1399 (9th Cir. 1992); In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237–38 (2d Cir. 1987) (common fund case).
266. In re Fine Paper Antitrust Litig., 751 F.2d 562 (3d Cir. 1984).
267. Daggett v. Kimmelman, 811 F.2d 793, 797–98 (3d Cir. 1987) (suggesting,
however, that a different result would have obtained if the reduction had been significantly higher).
268. Gates, 987 F.2d at 1400.

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51

award and the party seeking fees to suggest the individual tasks to be
sampled.”269
The Third Circuit has held that the district court may not decrease
a fee award based on factors not raised by the adverse party. 270 A
Fourth Circuit case appears to hold differently.271 The Seventh Circuit
has stated that the plaintiff is entitled to be heard before the court
makes a significant reduction in requested hours.272
The Ninth and Tenth Circuits have rejected the contention that
the award of attorneys’ fees may be submitted to a jury.273 The Fifth
Circuit has held that there is no Seventh Amendment right to a jury
trial on fees, but it is permissible for a jury to determine fees.274
b. Rule 54
The procedural requirements and options available to judges faced
with fee disputes are set forth in Federal Rule of Civil Procedure
54(d)(2):
(C) On request of a party or class member, the court shall afford an opportunity for adversary submissions with respect to the motion in accordance
with Rule 43(e) or Rule 78. The court may determine issues of liability for
fees before receiving submissions bearing on issues of evaluation of services
for which liability is imposed by the court. The court shall find the facts and
state its conclusions of law as provided in Rule 52(a).
269. Evans v. City of Evanston, 941 F.2d 473, 477 (7th Cir. 1991), cert. denied,
112 S. Ct. 3028 (1992) (reiterating its approval of the sampling method in In re Continental Illinois Securities Litigation, 962 F.2d 566, 572–73 (7th Cir. 1992)). “Sampling”
is discussed infra text accompanying notes 510–13.
270. Bell v. United Princeton Props., 884 F.2d 713, 719 (3d Cir. 1989); Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir. 1985), vacated on other
grounds, 478 U.S. 1015 (1986).
271. Broyles v. Dir., 974 F.2d 508, 510 (4th Cir. 1992) (“Although the [defendant] has not challenged the number of hours claimed, we have the responsibility of
determining whether the fees sought are reasonable.”).
272. Smith v. Great Am. Rests., 969 F.2d 430, 440 (7th Cir. 1992).
273. MidAmerica Fed. Sav. & Loan Ass’n v. Shearson/American Express, Inc.,
962 F.2d 1470, 1475 (10th Cir. 1992); Hatrock v. Jones & Co., 750 F.2d 767, 776 (9th
Cir. 1984).
274. Resolution Trust v. Marshall, 939 F.2d 274, 279 (5th Cir. 1991). The court
did not say whether it is wholly within the discretion of the court to have a jury determine fees or whether consent of the parties is required.

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Awarding Attorneys’ Fees and Managing Fee Litigation

(D) By local rule the court may establish special procedures by which issues
relating to such fees may be resolved without extensive evidentiary hearings.
In addition, the court may refer issues relating to the value of services to a
special master under Rule 53 without regard to the provisions of Rule 53
(a)(1) and may refer a motion for attorneys’ fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.275

C. Issues on Appeal
The legal issues discussed above apply to the courts of appeals as well
as to the district courts. The following issues apply only to the courts
of appeals:
• the timing of the appeal;
• the scope of review; and
• whether the court of appeals may calculate the award.
1. Timing of appeal
In White v. New Hampshire, 276 the Supreme Court held that a request
for attorneys’ fees is collateral to and separate from a decision on the
merits. 277 In Budinich v. Becton Dickinson & Co., 278 the Court held
that a request for attorneys’ fees will not prevent an otherwise final
decision on the merits from becoming final for purposes of appeal.279
In Ramsey v. Colonial Life Insurance Co. of America, 280 the Fifth
Circuit distinguished the Supreme Court cases, which concerned
original requests for attorneys’ fees, from the case before it, which involved a motion to reconsider attorneys’ fees. It held that a request to
reconsider a denial of attorneys’ fees was a Rule 59(e) motion that
tolled the thirty-day period for taking an appeal on the merits of the
case. In Ramsey, the district court had entered a judgment that included both a disposition on the merits and a denial of attorneys’ fees.
The Fifth Circuit stated, “a motion to reconsider a judgment will be
275. Fed. R. Civ. P. 54(d)(2)(C) and (D). Rule 54(d)(2)(E) exempts from the
amended rule a request for attorneys’ fees as a sanction.
276. 455 U.S. 445 (1982).
277. Id. at 451– 52.
278. 486 U.S. 196 (1988).
279. Id. at 202–3.
280. 12 F.3d 472 (5th Cir. 1994).

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considered a Rule 59(e) motion even where the request for reconsideration encompasses only that part of the judgment regarding attorney’s fees.” 281
The Tenth Circuit, in contrast, held that a Rule 59(e) motion to
rescind an award of attorneys’ fees did not toll the time for appeal of
the merits.282 It distinguished the case from Ramsey, which concerned
a final disposition of the question of attorneys’ fees, that is, they were
denied. The Tenth Circuit case did not involve a final disposition of
attorneys’ fees; the amount of fees was not set. Relying on Budinich,
the Tenth Circuit noted that the fees issue remained “collateral to the
merits judgment, particularly when the judgment contemplates significant further proceedings concerning costs and attorney’s fees.”283
The Third, Sixth, and Ninth Circuits have rejected the contention
that Federal Rule of Appellate Procedure 39(d) requires an appeal
from a fee order to be filed within fourteen days.284 They held that
Rule 39(d) applies only to certain costs specified in the text of the
rule—briefs, appendices, and copies of records allowed under
39(c)—and not to attorneys’ fees. The D.C. Circuit has held to the
contrary.285 The First, Third, Fifth, Sixth, and Eleventh Circuits have
held that an appellate court’s order that each party bear its own costs
does not preclude an award of attorneys’ fees.286 The Second Circuit
has held to the contrary.287
281. Id. at 478.
282. Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995).
283. Id. at 567.
284. McDonald v. McCarthy, 966 F.2d 112, 114 (3d Cir. 1992); Kelley v. Metro.
County Bd. of Educ., 773 F.2d 677, 682 n.5 (6th Cir. 1985) (en banc), cert. denied, 474
U.S. 1083 (1986); N. Plains Res. Council v. EPA, 670 F.2d 847, 848 n.1 (9th Cir.
1982), vacated on other grounds, 464 U.S. 806 (1983).
285. Montgomery & Assocs., Inc. v. Commodity Futures Trading Comm’n, 816
F.2d 783, 785 (D.C. Cir. 1987) (motion for fees untimely because not filed within the
Rule 39(d) time period).
286. McDonald, 966 F.2d at 115–18; Chems. Mfrs. Ass’n v. EPA, 885 F.2d 1276,
1278 (5th Cir. 1989); Lattimore v. Oman Constr., 868 F.2d 437, 440 n.6 (11th Cir.
1989); Kelley, 773 F.2d at 681; Robinson v. Kimbrough, 652 F.2d 458, 463 (5th Cir.
1981); Farmington Dowel Prod. v. Forster Mfg. Co., 421 F.2d 61, 91 (1st Cir. 1969).
In so holding, these courts found that attorneys’ fees are distinct from the costs referred to in Rule 39. See also Terket v. Lund, 623 F.2d 29, 33 (7th Cir. 1980) (because
fees and costs are distinct, appeal from order taxing costs did not give court of appeals

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Awarding Attorneys’ Fees and Managing Fee Litigation

As a result of Supreme Court dicta,288 district courts generally
view proceedings on the merits as procedurally distinct from postjudgment fee proceedings. For example, they often enter separate orders on the merits and on the fee request.289 When this occurs, a separate notice of appeal from the fee decision must be filed.290
The Third, Fifth, Sixth, Eighth, and Eleventh Circuits have held
that an order determining liability for fees but not establishing the
amount is not a final, appealable order.291 The Seventh Circuit has
disagreed.292
Interim fee awards, which are based on success of the litigation in
part while other issues remain to be resolved, are generally not appealable. 293 However, the Fifth, Sixth, Seventh, and Ninth Circuits
have held that they are appealable under the collateral order doctrine

jurisdiction over fee award). Some of these cases were decided before the Supreme
Court’s ruling in Marek v. Chesny, 475 U.S. 717 (1986), which held that fees are part
of costs under Rule 68. However, the Third and Sixth Circuits distinguished them
from Marek (see McDonald, 966 F.2d at 116; Kelley, 773 F.2d at 681–82 n.5), noting
that Fed. R. Civ. P. 68 is silent as to what constitutes costs, whereas Fed. R. App. P.
39(d) specifically enumerates costs and makes no mention of attorneys’ fees.
287. Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992).
288. See supra note 14 and accompanying text.
289. In Maristuen v. National States Insurance Co., 57 F.3d 673, 678 (8th Cir.
1995), the Eighth Circuit stated a preference for reviewing judgments that include a
decision both on the merits and on attorneys’ fees awards “whenever possible and
practical.”
290. McDonald, 966 F.2d at 118; Quave v. Progress Marine, 918 F.2d 33, 34 (5th
Cir. 1990); Art Janpol Volkswagen v. Fiat Motors of N. Am., 767 F.2d 690, 697 (10th
Cir. 1985); Exch. Nat’l Bank of Chicago v. Daniels, 763 F.2d 286, 291–92 (7th Cir.
1985).
291. Pennsylvania v. Flaherty, 983 F.2d 1267, 1276–77 (3d Cir. 1993); Echols v.
Parker, 909 F.2d 795 (5th Cir. 1990); Gates v. Cent. Teamsters Pension Fund, 788
F.2d 1341, 1343 (8th Cir. 1986); Morgan v. Union Metal, 757 F.2d 792, 794 (6th Cir.
1985); Fort v. Roadway Express, 746 F.2d 744, 747 (11th Cir. 1984). See also Andrews
v. Employees’ Ret. Plan, 938 F.2d 1245, 1248 (11th Cir. 1991) (court reaffirmed this
position but nevertheless entertained the appeal because, on the facts of the case, it
saw “no practical purpose in delaying resolution of the attorney’s fee issue”).
292. John v. Barron, 897 F.2d 1387, 1390 (7th Cir. 1990); Bittner v. Sadoff &
Rudoy Indus., 728 F.2d 820, 826–27 (7th Cir. 1984).
293. Shipes v. Trinity Indus., 883 F.2d 339 (5th Cir. 1989).

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55

if the defendant would otherwise have trouble recovering its money
after the litigation. 294
2. Scope of review
The Supreme Court has stated that district courts’ factual determinations with respect to a fee award should be reviewed deferentially under an “abuse of discretion” standard.295 The First Circuit
reviews a fee award only for a mistake of law or an abuse of discretion. 296 The Third Circuit has said that the legal standards used by the
district court are given plenary review. 297 Similarly, the Seventh,
Ninth, and Tenth Circuits have remarked that, although the amount
of a fee award is generally reviewed for abuse of discretion, whether
the plaintiff is entitled to any award is usually a question of statutory
interpretation, reviewed de novo. 298
3. May the court of appeals calculate the award?
As a general rule, when a court of appeals finds a calculation of fees to
be erroneous, it remands the case for recalculation. However, on occasion the courts of appeals have decided the matter themselves in
order to further the administration of justice. The Seventh Circuit has
suggested that when a case has been in litigation for years, this “short-

294. People Who Care v. Rockford Bd. of Educ., 921 F.2d 132, 134 (7th Cir.
1991); Shipes, 883 F.2d 339; Rosenfeld v. United States, 859 F.2d 717, 721–22 (9th Cir.
1988); Webster v. Sowders, 846 F.2d 1032, 1035 (6th Cir. 1988).
295. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). However, such review requires a district court to “provide a concise but clear explanation for its reasons for
the fee award.” Id.
296. Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 336 (1st Cir. 1997).
297. Bell v. United Princeton Props., 884 F.2d 713, 718 (3d Cir. 1989); see also
Domegan v. Ponte, 972 F.2d 401, 406 (1st Cir. 1992), vacated and remanded on other
grounds, 113 S. Ct. 1378 (1993).
298. See, e.g., Jaffee v. Redmond, 142 F.3d 409, 413 (7th Cir. 1998); Schultz v.
Hembree, 975 F.2d 572, 574 n.2 (9th Cir. 1992); Homeward Bound, Inc. v. Hissom
Mem’l Hosp., 963 F.2d 1352 (10th Cir. 1992). The Ninth Circuit has also said that
“any elements of legal analysis and statutory interpretation which figure in the district
court’s [attorneys’ fees] decision are reviewable de novo.” Coalition for Clean Air v. S.
Cal. Edison, 971 F.2d 219, 229 (9th Cir. 1992), cert. denied, 113 S. Ct. 1361 (1993).

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Awarding Attorneys’ Fees and Managing Fee Litigation

cut” is justifiable.299 The First Circuit has found a remand unnecessary
if “the record is sufficiently developed that we can apply the law to the
facts before us” to recalculate the award in an essentially “mechanical”
manner.300 The Fifth Circuit has agreed.301 The Eleventh Circuit has
stated that it has authority to calculate a fee without a remand unless
an evidentiary hearing is required to clarify disputed facts.302

299. See Ustrak v. Fairman, 851 F.2d 983, 989 (7th Cir. 1988) (because remand
can “prolong litigation on what to begin with is a collateral matter, . . . [p]ractice has
trumped theory . . . [and] in many cases in this and other circuits the court of appeals
has made the adjustment in the fee award . . . without bothering to remand the case”).
300. Lipsett v. Blanco, 975 F.2d 934, 943 (1st Cir. 1992).
301. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 326 (5th Cir. 1995)
(modifying fee award without remand).
302. ACLU of Ga. v. Barnes, 168 F.3d 423, 431–32 (11th Cir. 1999). See also Rum
Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994) (finding authority
to calculate a fee award without a remand, but not enough information on record to
do so).

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this document double-sided.

II
Common Fund
and Substantial Benefit
A. Common Fund
A brief review of four Supreme Court cases establishes the perimeters
of the common fund doctrine. In the 1881 case of Trustees v.
Greenough,303 a bondholder’s suit resulted in recovery of trust assets
and realization of dividend payments to himself and other bondholders. The Court held that he should be reimbursed from the trust fund
for his attorneys’ fees lest the other bondholders be unjustly enriched
at his expense.304 A few years later, in Central Railroad & Banking Co.
v. Pettus,305 the Court expanded the common fund doctrine, holding
that the plaintiff’s counsel in a class action not only had standing to
seek fees reimbursement for his client but also was eligible for an
award of his own (not limited to what the client owed him). The
Court reasoned that otherwise, the class members would be unjustly
enriched at counsel’s expense.
Greenough and Pettus involved a kind of recovery that differs fundamentally from statutory fee shifting in that fees are shared by the
beneficiaries of the lawsuit rather than shifted to the losing party.
They established that the common fund doctrine gives rise to two
303. 105 U.S. 527 (1881).
304. The Court suggested that fees might also be recovered directly from the
other beneficiaries. Id. at 532. However, there are no reported cases in which such a
recovery has been ordered. Cf. Vincent v. Hughes Air W., 557 F.2d 759, 770 (9th Cir.
1977) (“any claim must be satisfied out of the fund”).
305. 113 U.S. 116 (1885).

59

kinds of claims: claims by plaintiffs to have their legal costs shared and
claims by attorneys for an award other than that paid or owed by the
client.306 (As in statutory fee-shifting cases, intervenors and their attorneys are also eligible for an award.307) Each of the two kinds of
claims prevents unjust enrichment of the beneficiaries.
Although many common fund cases are class actions, like Pettus,
the common fund doctrine is not limited to class actions. This point
was clarified and the common fund doctrine further expanded in
Sprague v. Ticonic, 308 which involved a trust fund that was jeopardized
when a bank went into receivership. After the plaintiff successfully
sued for a lien establishing her right to recover from the trust, she
sought reimbursement of attorneys’ fees from the trust. Although the
suit had only indirectly established the rights of others, and had not
created a fund, the Court held that fees were in order:
Whether one sues representatively or formally makes a fund available for
others may, of course, be relevant circumstances in making the fund liable
for his costs in producing it. But when such a fund is for all practical purposes created for the benefit of others, the formalities of the litigation—the
absence of an avowed class suit or the creation of a fund, as it were, through
stare decisis rather than through a decree—hardly touch the power of equity in doing justice as between a party and the beneficiaries of his litigation.309

Sprague notwithstanding, most common fund cases are class actions. In Boeing v. Van Gemert310 the Supreme Court held that the un306. See Skelton v. Gen. Motors Corp., 860 F.2d 250, 253 (7th Cir. 1988) (“Thus,
in statutory fee-shifting cases, only parties (usually plaintiffs) may seek reimbursement whereas in common fund cases attorneys may seek compensation.”), cert.
denied, 493 U.S. 810 (1989).
307. See, e.g., Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1302 (2d Cir.
1990); Kargman v. Sullivan, 589 F.2d 63, 68–69 (1st Cir. 1978); Lindy Bros. Builders,
Inc. v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 112 (3d Cir. 1976). The
court must, of course, assess whether the intervenor made a meaningful contribution.
See, e.g., Bandes v. Harlow & Jones, 852 F.2d 661, 671 (2d Cir. 1988) (fees denied intervenors who “did nothing to create the fund”); Lindy Bros., 540 F.2d at 112 (intervenors awarded fees because “the financial strength they added to the plaintiff
class . . . helped to force the settlement”).
308. 307 U.S. 161 (1939).
309. Id. at 166.
310. 444 U.S. 472 (1980).

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claimed portion of a fund established by a class action may be tapped
for a fee award. It rejected the contention that the nonclaimants cannot be considered beneficiaries, reasoning that entitlement to the fund
makes all class members beneficiaries for the purposes of the common
fund doctrine.311
Despite these cases, application of the common fund doctrine will
not invariably be simple. Like fee-shifting cases, common fund cases
require a three-step inquiry: (1) whether there is entitlement to a fee
award; (2) how the award should initially be calculated; and
(3) whether any adjustment to the presumptive award should be
made.

B. Class Actions
Federal Rule of Civil Procedure 23(h)312 governs motions for attorneys’ fees awards in class actions. Rule 23(h) does not mandate Rule
54(d)(2)(B)’s313 fourteen-day filing requirement. Rather, the court
sets the time frame in which to file a motion for attorneys’ fees.
1. Determining whether an award is in order
a. Is there a fund?
When a party requests fees from a common fund, the threshold question is whether a common fund exists. On occasion, parties seek
awards when there is no common fund.314 The requirement of a
common fund is not applied mechanically. For example, the D.C. Circuit rejected a contention that “the [common fund] doctrine is inap311. The Ninth Circuit held that the entire class action settlement fund should
be the basis for a fee award even if the unclaimed portion of the fund reverts back to
the defendant; the defendant should have negotiated a lower settlement fund if it
wished to limit fees. Williams v. MGM-Pathe Communications Co., 129 F.3d 1026,
1027 (9th Cir. 1997) (per curiam). Accord Waters v. Int’l Precious Metals Co., 190
F.3d 1291, 1292–97 (11th Cir. 1999).
312. Fed. R. Civ. P. 23(h).
313. Fed. R. Civ. P. 54(d)(2)(B).
314. See, e.g., Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d 206, 211 (2d
Cir.), cert. denied, 484 U.S. 908 (1987) (“The award appellants seek would not be payable out of any ‘fund.’”); Holbrook v. Pitt, 748 F.2d 1168, 1175 (7th Cir. 1984) (“the
common fund doctrine cannot be applied because there is no ‘common fund’”).

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61

plicable because ‘there is literally no common fund’”; although retroactive salary payments were paid out of several different appropriations, “[i]n [the court’s] view [this] is a mere technicality . . . . The
entire sum paid to federal employees is the ‘common fund’. . . to
which the request or contribution is applicable.”315
b. Did the lawsuit bring about or enhance the fund, or create access
to it?
In common fund cases, it is not necessary for the court to determine
whether the plaintiff achieved success sufficient to warrant a fee
award: The fund itself signifies success. The plaintiff must, however,
establish that its suit was a “but for” cause of the fund (or at least ensured access to the fund). One case illustrates this requirement.316 A
Nicaraguan company paid an American company for a shipment of
goods. The shipment was not made, in part because the Nicaraguan
company was taken over by its government. The former owner sought
return of the payment, and Alvarez, a representative of the Nicaraguan government, intervened. The American company interpleaded
the money, and the two claimants—the former owner and Alvarez—went to trial. The former owner prevailed, but the trial court
granted Alvarez attorneys’ fees from the payment, presumably because
the fund benefited the unrepresented shareholders and Alvarez had
“demonstrated some solicitude” for them.317 The Second Circuit reversed this decision because Alvarez “did nothing to create the common fund.”318
The court could have stressed that Alvarez not only did not “create” the fund but also played no role in benefiting the shareholders
(since the fund would have become available even if he had not intervened). This distinction is important because the common fund doctrine does not require that the suit bring about a fund ab initio. The
leading Supreme Court cases involved funds that predated the suit.319
315. Nat’l Treasury Employees Union v. Nixon, 521 F.2d 317, 320–21 (D.C. Cir.
1975).
316. Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988).
317. Id. at 671.
318. Id.
319. See supra text accompanying notes 303–11.

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The D.C. Circuit has stated that the common fund doctrine applies to
actions that “create[ ], enhance, preserve, or protect [a] fund.”320 The
Ninth Circuit has said it applies if the plaintiff “created, discovered,
increased or preserved” a fund. 321 Such formulations are underinclusive. The common fund doctrine has also been applied in cases that
resulted in a fund’s reapportionment 322 or distribution. 323 The doctrine may apply, then, if a lawsuit creates a fund or ensures access to
funds. 324
The plaintiff’s efforts need not involve an actual adjudication. Recovery can be appropriate when the common fund results from a
formal settlement, 325 or when the defendant takes remedial action that
moots the case.326 In addition, a common fund recovery is arguably
available from a fund created by a legislative or administrative action
spurred by the plaintiff’s lawsuit. 327 Finally, in one case, the Supreme
320. Abbott, Puller & Myers v. Peyser, 124 F.2d 524, 525 (D.C. Cir. 1941).
321. B.P. N. Am. Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975, 977 (9th
Cir.), cert. denied, 479 U.S. 849 (1986).
322. See, e.g., United States v. ASCAP, 466 F.2d 917, 918 (2d Cir. 1972); Nolte v.
Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931); Dorfman v. First Boston Corp.,
70 F.R.D. 366 (E.D. Pa. 1976).
323. See, e.g., Powell v. Pa. R.R., 267 F.2d 241 (3d Cir. 1959); Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir.), cert. denied, 355 U.S. 869 (1957).
324. See Sprague v. Ticonic, 307 U.S. 161, 166–67 (1939) (the fact that fund was
not “formally established by litigation” not decisive as long as suit “makes a fund
available for others”). The breadth of the doctrine is occasionally overlooked. See, e.g.,
Feick v. Fleener, 653 F.2d 69, 78 (2d Cir. 1981) (rejecting award from an estate for
attorney whose work during protracted litigation enhanced the estate; the court denied fees because no fund “was created by [his] efforts,” overlooking the fact that the
common fund doctrine can apply when litigation enhances an existing fund).
325. See, e.g., Kopet v. Esquire Realty, 523 F.2d 1005, 1008 (2d Cir. 1975).
326. See, e.g., Koppel v. Wien, 743 F.2d 129, 135 (2d Cir. 1984) (fees appropriate
even though “no judgment or consent decree was entered and the complaint was dismissed as moot”); Reiser v. Del Monte Props., 605 F.2d 1135, 1139 (9th Cir. 1979)
(fees not precluded where defendant voluntarily takes action, favorable to plaintiff,
that moots suit).
327. See Winton v. Amos, 255 U.S. 373, 393 (1921) (fee recovery appropriate
where attorney persuaded legislative and executive branches to restore lands and
funds to his clients). Winton has rarely been cited, and it was rejected by the D.C.
Circuit sub silentio in Whittier v. Emmett, 281 F.2d 24, 32 (D.C. Cir. 1960), cert. denied, 364 U.S. 935 (1961) (“claim for compensation for services rendered in sponsor-

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63

Court held that an award was appropriate for defendants whose litigation efforts preserved a fund.328
c. Are there beneficiaries?
In a number of cases, awards have been denied because there were no
bona fide beneficiaries of the fund other than the plaintiff. In one
case, a minority shareholder prevailed in a derivative suit against the
officers of the corporation, who were also the other shareholders. The
officers were ordered to reimburse the corporation for the diminution
of stock value caused by their breach of fiduciary duty. The Fifth Circuit found a fee award inappropriate because “the effect of such an
award is to shift the liability for those fees to the defendant,”329
whereas the common fund doctrine aims to spread the fee among
beneficiaries. The court elaborated:
The trial court’s judgment on the derivative claim in this case creates no
common fund benefiting the remaining former . . . shareholders other than
[the plaintiff]. Rather, the other shareholders are cast in judgment in the
corporation’s favor. Therefore, the effect of the award of attorney’s fees out
of the so-called derivative recovery is to increase the defendant’s liability to
include the plaintiff’s attorney’s fees. The award of attorney’s fees to the
plaintiff who successfully litigates the corporation’s claim is not designed
“to saddle the unsuccessful party with the expenses but to impose them on
the class that has benefited from them.” 330

In a First Circuit case, the plaintiff, Joseph Catullo, and the defendant, Conservit, Inc., a Maryland corporation, agreed to form a company, Barlof Salvage, to do business in Puerto Rico. When Conservit
began to compete with Barlof, Catullo brought a derivative suit on
behalf of Barlof. Catullo prevailed and sought fees from the judgment
recovered to “avoid burdening the plaintiff and unjustly enriching the
only other shareholder—Conservit.”331 The First Circuit rejected the
ing favorable legislation [does] not deserve prolonged discussion”). But see Paris v.
Metro. Life Ins., 94 F. Supp. 792 (S.D.N.Y. 1947) (ordering recovery from fund created by action of administrative agency).
328. See Rude v. Buchhalter, 286 U.S. 451, 461 (1932).
329. Junker v. Cory, 650 F.2d 1349, 1352 (5th Cir. 1981).
330. Id. (quoting Mills v. Elec. Auto-lite, 396 U.S. 375, 396–97 (1970)).
331. Catullo v. Metzner, 834 F.2d 1075, 1083 (1st Cir. 1987).

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request because the “[p]laintiff is the sole shareholder to benefit from
the derivative action. The only other party in interest, Conservit, must
advance the money which plaintiff now proclaims to be a common
fund.”332
In Sprague v. Ticonic,333 the Supreme Court found the common
fund doctrine applicable where the petitioner established the claims of
non-plaintiffs through stare decisis. Lower courts have applied this
doctrine in cases resembling Sprague, that is, cases in which the plaintiff and the beneficiary had similar claims on a particular fund.334
Courts do not apply the common fund doctrine whenever a suit establishes a rule of law that later brings success to others.335 A Second
Circuit case illustrates this limitation. New York farmers who sold
milk in Connecticut challenged a government regulation that gave a
larger subsidy to Connecticut farmers. When they prevailed by relying
on a Supreme Court decision that invalidated a similar regulation (for
farmers in other states), the attorney who won in the Supreme Court
case intervened in the Second Circuit case to petition for fees. The
court rejected the “novel assertion that attorneys who are victorious in
one case may . . . claim fees from all subsequent litigants who might
rely on it or use it in one way or another.”336
332. Id. at 1084. See also In 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).
333. 307 U.S. 161 (1939). See supra text accompanying notes 308–09.
334. See, e.g., City of Klawock v. Gustafson, 585 F.2d 428, 431 (9th Cir. 1978)
(affirming fees based on Sprague’s stare decisis rule because “[s]pecific property was in
the hands of the same defendant which had lost the case and that defendant’s duty
under the previous decision was clear”).
335. See Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156, 164
n.13 (9th Cir. 1966) (Sprague usually applied “in cases having closely analogous
facts”), aff’d, 386 U.S. 714 (1967). In Sprague itself, the Court cautioned without
elaboration that fees for a suit benefiting others via stare decisis are limited to “exceptional cases” involving “dominant reasons of justice.” Sprague, 307 U.S. at 167.
336. Cranston v. Hardin, 504 F.2d 566, 580 (2d Cir. 1974); accord Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969) (per curiam) (rejecting
claim of lawyer who successfully challenged discriminatory user fees and sought attorneys’ fees when another foreign carrier benefited from the decision in a subsequent
suit).

Common Fund and Substantial Benefit

65

The Ninth Circuit expanded Sprague in one respect. In City of
Klawock v. Gustafson,337 the underlying decision that benefited other
parties was made by a district court (with no appeal taken) and thus
lacked stare decisis. The Ninth Circuit held that a fee award was nevertheless in order and found that it would be unfair to penalize the
plaintiff because the case did not go up on appeal.338 However, in a
similar case the Second Circuit reached a different conclusion and
denied fees because “it is at least doubtful whether [the plaintiff’s] unreviewed judgment would work as a collateral estoppel in favor of another similarly situated plaintiff.”339
d. Can fees be shifted to the beneficiaries with precision?
A common fund fee award must result in costs being “shifted with
some exactitude to those benefiting.”340 Thus, courts deny awards
when there are only a few beneficiaries and other parties would be
harmed by recovery of fees from the fund. In one case, the plaintiff
sued a pension plan, challenging its procedures for awarding disability
benefits. The plaintiff prevailed, but the Second Circuit found a fee
award inappropriate because “the financial benefit of [the plaintiff’s]
success . . . accrue[s] to a relatively few members of the Plan, which
provides pension as well as disability benefits.” 341 Similarly, the Ninth
Circuit denied fees in a suit that stopped the construction of a state
highway and thereby preserved the state highway fund. The fund
could not be shifted “proportionately and accurately” to the beneficiaries because “it would be impossible to determine which beneficiary
bears what costs, since residents and taxpayers pay varying amounts
into the fund.”342
As the Ninth Circuit case illustrates, courts generally reject claims
for a common fund recovery out of the government treasury; the

337. 585 F.2d 428 (9th Cir. 1978).
338. Id. at 431.
339. Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112, 115 (2d Cir. 1978).
340. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 265 n.39
(1975).
341. Fase, 589 F.2d at 115.
342. Southeast Legal Def. Group v. Adams, 657 F.2d 1118, 1123 (9th Cir. 1981).

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award will come at the expense of all taxpayers, not solely the beneficiaries of the lawsuit.343
The paradigmatic situation in which a fee award would be fairly
and precisely spread among beneficiaries is a class action in which
“each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered
on his behalf.” 344 Of course, plaintiffs in non-class actions that achieve
a similar result are also eligible for common fund awards.
343. See, e.g., Brzonkala v. Morrison, 272 F.3d 688, 692 (4th Cir. 2001); In re Hill,
775 F.2d 1037, 1041 (9th Cir. 1985); Grace v. Burger, 763 F.2d 457, 459 (D.C. Cir.),
cert. denied, 474 U.S. 1026 (1985); Jordan v. Heckler, 744 F.2d 1397, 1400 (10th Cir.
1984). Jordan is illustrative. Because the suit forced the Department of Health and
Human Services to make a change in policy that would increase the number of Social
Security recipients, the trial court awarded fees under the common fund doctrine. The
Tenth Circuit reversed the decision. Common fund awards must be borne by beneficiaries, but “[a]n award of fees against the Secretary does not have such a consequence. If the award is taken from the Social Security Trust Fund it will not in any
way reduce the payments to [the beneficiaries] . . . . The Trust Fund comes from Social Security taxes on all workers and from general Treasury funds. It is simply an
award against the Government or all persons who pay Social Security taxes and is not
related or restricted to [the beneficiaries].”
In similar circumstances the D.C. Circuit approved an award of fees from a state
treasury. Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984). Yet it cast doubt
about this decision sub silentio a year later, denying an award in a substantial benefit
case because it “‘would ultimately be born[e] by all taxpayers, rather than just those
benefiting [from the suit].’” Grace, 763 F.2d at 459 (quoting Trujillo v. Heckler, 587 F.
Supp. 928 (D. Colo. 1984)).
In some common fund and substantial benefit cases, plaintiffs argued that all
citizens or taxpayers did benefit. The courts denied fees, however, because if awards
were permitted on that basis, the common fund and substantial benefit doctrines
“would merge into the private-attorney general concept rejected in Alyeska.” Satoskar
v. Ind. Real Estate Comm’n, 517 F.2d 696, 698 (7th Cir.), cert. denied, 423 U.S. 928
(1975). Accord Brzonkala, 272 F.3d at 691; Hill, 775 F.2d at 1041–42; McQuiston v.
Marsh, 707 F.2d 1082, 1085 (9th Cir. 1983); Stevens v. Mun. Court, 603 F.2d 111, 113
(9th Cir. 1979).
344. Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980). The Court noted that,
“[a]lthough the full value of the benefit to each absentee member cannot be determined until he presents his claim, a fee awarded against the entire judgment fund will
shift the costs of litigation to each absentee in the exact proportion that the value of
his claim bears to the total recovery.” Id. However, not all class actions result in an
“entire judgment fund,” as was the case in Boeing . A class action may establish liability

Common Fund and Substantial Benefit

67

e. Does the court have “control” of the fund?
In Trustees v. Greenough, the Supreme Court stated that the common
fund must be “subject[ ] to the control of the court.” 345 In Boeing Co.
v. Van Gemert, the Court explained that this means the court must
have “[j]urisdiction over the fund involved in the litigation.”346 This
criterion is generally satisfied by jurisdiction over a party that controls
the fund,347 usually the defendant. Therefore, absence of control, by
itself, is rarely the basis for denial of a fee award.348
f. Does some other circumstance militate against an award?
Even when the above conditions are met, circumstances involving a
statute that manifests congressional intent not to share fees or involving beneficiaries of the plaintiff’s suit with adverse interests may
render a fee award improper.
i. Congressional intent
In Bloomer v. Liberty Mutual Insurance,349 an injured longshoreman
successfully sued the shipowner. Since the plaintiff was required by
and leave each class member’s claim to be determined individually without establishing a total judgment amount. In such circumstances, the common fund doctrine presumably does not apply—there is no common fund—and the attorneys who prosecute the individual claims would be compensated by the individual claimants. Of
course, gray areas may arise (in terms of the relief awarded and the relationship between class members and class counsel), and courts may wish to consider flexible
application of the common fund doctrine to prevent unjust enrichment of some class
members or inadequate compensation for class counsel.
345. 105 U.S. 527, 536 (1881).
346. Boeing, 444 U.S. at 478.
347. See Mary Frances Derfner & Arthur D. Wolf, Court Awarded Attorney Fees
§ 2.03, at 2-27 to 2-34.1 (1992) (discussing various ways in which a court may exercise
control of a fund).
348. As one commentator puts it, the control criterion amounts to whether there
are sufficient means “at the disposal of the court to effectuate the end of fairly apportioning the legal fees.” Id. at 2-28. Thus, the issue of control is generally subsumed in
the matters already discussed in the text—whether there is a fund, and beneficiaries,
and whether a fee award would fairly spread the costs among the beneficiaries (and
only them). By contrast, the “control” criterion has independent significance in substantial benefit cases. See infra text accompanying notes 459–63.
349. 445 U.S. 74 (1980).

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law to give part of his recovery to the stevedore to offset payments that
the stevedore had made to the plaintiff through workers’ compensation, the plaintiff sought to have the stevedore pay a portion of his
attorney’s fees. He argued that his judgment against the shipowner
created a common fund from which the stevedore would draw an ascertainable amount. Although the usual conditions of a common fund
recovery were met, the Supreme Court denied recovery because the
Longshoremen’s and Harbor Workers’ Compensation Act addressed
the longshoreman-stevedore-shipowner triangle and did not seem to
contemplate a distribution of fees.350
While acknowledging that a statute governing a particular area
can vitiate a common fund award if it manifests congressional intent
not to share fees,351 the Second, Third, and Seventh Circuits have held
that, absent such a showing of legislative intent, the fact that a feeshifting statute applies to a particular case does not preclude recovery
from a common fund.352 No courts have held to the contrary.

350. Similarly, the Seventh Circuit interpreted a Supreme Court dictum as suggesting that common fund recoveries are inappropriate in Title VII and civil rights
cases. Evans v. City of Evanston, 941 F.2d 473, 479 (7th Cir. 1991), cert. denied, 112 S.
Ct. 3028 (1992). In Blanchard v. Bergeron, 489 U.S. 87, 95 (1989), the Supreme Court
stressed that, under the civil rights fee-shifting statute, damages should not be overemphasized and nonmonetary relief should not be short-changed. The Seventh Circuit interpreted this analysis as suggesting the impropriety of common fund awards in
Title VII and civil rights cases because such awards could “skew the incentives of
plaintiffs’ lawyers toward damages rather than equitable remedies.” Evans, 941 F.2d at
479. It did not, however, decide the issue, because the district court had made a
statutory award and was “correct to rule that it was unnecessary to allow both a recovery from the defendants and the common fund in this case.” Id.
351. See, e.g., Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir.
1990) (“obviously, if, under a particular combination of facts, the operation of the
equitable fund doctrine conflicts with an intended purpose of a relevant fee-shifting
statute, the statute must control and the . . . doctrine must be deemed abrogated to
the extent necessary to give full effect to the statute”).
352. Id. at 1327; Skelton v. Gen. Motors Corp., 860 F.2d 250, 255 (7th Cir. 1988),
cert. denied, 493 U.S. 810 (1989); In re Fine Paper Antitrust Litig., 751 F.2d 562, 583
(3d Cir. 1984). See infra text accompanying notes 379–80 (discussing situations in
which recovery could be awarded pursuant to either a fee-shifting statute or the
common fund doctrine).

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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.353 In the seminal case of Hobbs v. McLean,354 the
plaintiff obtained a judgment on behalf of a bankrupt. Believing that
the sum recovered rightly belonged to them, and fearing that the
plaintiff would distribute it to creditors, two other parties brought suit
against the plaintiff and won. The plaintiff then moved for attorneys’
fees for his efforts in winning the original judgment. The Supreme
Court denied the motion, finding the common fund doctrine inapposite in this situation:
We see no reason why [they] should pay [him], who, instead of aiding them
in securing their rights, has been an obstacle and obstruction to their enforcement. The services for which [he] seeks pay . . . were not rendered in
their behalf, but in hostility to their interest. When many persons have a
common interest in a trust property or fund, and one of them, for the
benefit of all and at his own cost and expense, brings a suit for its preservation or administration, the court of equity . . . will order that the plaintiff be
reimbursed his outlay from the property of the trust, or by proportional
contribution from those who accept the benefits of his efforts. But where
one brings adversary proceedings to take the possession of trust property
from those entitled to it . . . and fails in his purpose, it has never been
held . . . that such person had any right to demand reimbursement.355

This common fund doctrine was applied in United States v. Tobias. 356 The U.S. government condemned territory and named Johnson, an owner of the land, in its complaint. Although the parties negotiated, Tobias, who claimed to own a portion of the land,
intervened. A settlement was reached in which the government deposited a sum in court and left Johnson and Tobias to fight over it.
Johnson and Tobias went to trial, and a judgment was entered splitting the fund between them. Johnson moved for Tobias to defray his
353. For a discussion of cases in which courts held that there were no beneficiaries (other than the plaintiff) because the alleged beneficiaries were actually harmed by
the suit, see supra text accompanying notes 329–32. In the cases discussed in this section, others do benefit from the common fund.
354. 117 U.S. 567 (1886).
355. Id. at 581–82.
356. 935 F.2d 666 (4th Cir. 1991).

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fees, claiming his negotiations with the government increased the
value of the fund, which benefited Tobias. The district court granted a
fee award, but the Fourth Circuit, citing Hobbs, reversed the decision:
“A party may not recover and try to monopolize a fund, but then,
failing in the attempt, declare it a ‘common fund’ and obtain his expenses from those whose rightful share of the fund he sought to appropriate.” 357
In contrast, in a Second Circuit case, the appellate court held that
the plaintiff’s opposition to the class settlement that eventually took
place was not a ground for denying the plaintiff attorneys’ fees from
the settlement pot because the plaintiff had made a substantial contribution to the class.358 This case is reconcilable with Hobbs and its
progeny because, although the plaintiff opposed the particular settlement that was made, its interests and posture in the litigation were not
in opposition to those of the class.
iii. Fund claimants that were represented
Several appellate courts have held that when beneficiaries of the
common fund are themselves represented by counsel, they are
“deemed not to have taken a ‘free ride’ on the efforts of another’s
counsel,” and their portion of the fund should therefore not be used
to defray the plaintiff’s legal costs.359 If lead counsel are appointed and
do a disproportionate amount of the work, courts may waive this
rule.360

357. Id. at 668. The court rejected Johnson’s contention that he and Tobias were
not adverse parties, since both were named defendants in the condemnation action.
“We will not adopt such a mechanical test. This case was a pure title dispute between
the ‘co-defendants.’ No equitable doctrine will ignore the reality of the controversy by
looking only to which side of the ‘v’ the disputants are on.” Id.
358. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990).
359. E.g., Tobias, 935 F.2d at 668; Vincent v. Hughes Air W., 557 F.2d 759, 771
(9th Cir. 1977); In re Air Crash Disaster at Fla. Everglades, 549 F.2d 1006, 1019 (5th
Cir. 1977).
360. Tobias, 935 F.2d at 668; Vincent, 557 F.2d at 772.

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2. Calculating the amount of an award
a. What method should be used?
i. Percentage v. lodestar
Courts have traditionally determined the amount of common fund
fee awards by considering several factors, especially the size of the
fund, and frequently have based awards on what they consider a reasonable percentage of the fund. In the early 1970s, courts began
moving away from this practice and toward the lodestar method.361
However, in the 1980s two developments sparked reconsideration of
the lodestar in common fund cases. First, in a footnote in Blum v.
Stenson,362 the Supreme Court distinguished between the calculation
of fees under fee-shifting statutes and calculation under the “‘common fund doctrine,’ where a reasonable fee is based on a percentage
of the fund bestowed on the class.” 363 Second, in 1985, a Third Circuit
task force on attorneys’ fees recommended the percentage method in
common fund cases.364
In large part as a result of the Blum dictum and the task force’s
recommendations, the percentage method has been gaining favor in
common fund cases. The D.C. and Eleventh Circuits require the percentage method.365 The First, Second, Sixth, Seventh, Eighth, Ninth,
and Tenth Circuits have stated that the district court may use either
the percentage method or the lodestar method.366 The Seventh Circuit
361. The seminal case was Lindy Brothers Builders, Inc. v. American Radiator &
Standard Sanitary Corp., 487 F.2d 161, 166–69 (3d Cir. 1973). Other courts quickly
followed suit.
362. 465 U.S. 886 (1984).
363. Id. at 900 n.16.
364. Court Awarded Attorney Fees: Report of the Third Circuit Task Force, reprinted in 108 F.R.D. 237, 255–56 (1985). For a summary of Third Circuit jurisprudence governing fee awards in common fund cases, see Gunter v. Ridgewood Energy
Corp., 223 F.3d 190, 195 n.1 (3d Cir. 2000).
365. See Swedish Hosp. Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C. Cir. 1993);
Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 774 (11th Cir. 1991).
366. See Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49–50 (2d Cir. 2000)
(percentage method appropriate only if it prevents unwarranted windfalls); Johnston
v. Comerica Mortgage Co., 83 F.3d 241, 244–46 (8th Cir. 1996); In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litig., 56 F.3d 295, 307 (1st
Cir. 1995); In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1295 (9th Cir.

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has indicated that the percentage method is preferred.367 The Ninth
Circuit has suggested that the percentage method is particularly appropriate when there are multiple claims and it would be difficult to
determine what hours were expended on the claims that produced the
fund. 368 The Ninth Circuit also suggested that the lodestar is preferable when “special circumstances indicate that the percentage recovery would be either too small or too large in light of the hours devoted
to the case or other relevant factors.”369 The Fifth Circuit has not explicitly adopted the percentage method, but seems to allow a combined percentage and lodestar approach. 370
Supporters of the percentage method say that it offers several advantages. It helps ensure that the fee award will simulate marketplace
rates, since most common fund cases are the kinds of cases normally
taken on a contingency fee basis, by which counsel is promised a percentage of any recovery. In addition, if fees are based on the lodestar,
plaintiff’s counsel has no incentive to settle the case early—counsel
continues to rack up fees by litigating the case. Furthermore, the lod estar requires detailed record keeping by plaintiffs and consumes far

1994); Rawlings v. Prudential-Bach Props., Inc., 9 F.3d 513, 516 (6th Cir. 1993);
Harman v. Lyphomed, 945 F.2d 969, 975 (7th Cir. 1991); Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir.), cert. denied, 488 U.S. 822 (1988).
367. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 572–73 (7th Cir. 1992).
368. Thus, in Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272 (9th Cir.
1989), the court approved use of the percentage method, finding that it would be
“impractical if not impossible” to determine precisely the hours spent creating the
fund; but in Florida v. Dunne, 915 F.2d 542, 545 (9th Cir. 1990), it upheld use of the
lodestar, because “we have no such division of claims.”
369. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.
1990). See also In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1296 (9th
Cir. 1994) (“As always, when determining attorneys’ fees, the district court should be
guided by the fundamental principle that fee awards out of common funds be ‘reasonable under the circumstances.’”) (emphasis added) (quoting Florida v. Dunne, 915 F.2d
542, 545 (9th Cir. 1990)).
370. See Strong v. BellSouth Telecomm. Inc., 137 F.3d 844, 852–53 (5th Cir.
1998) (approving application of lodestar and stating that application of a percentage
approach could be restricted to a percentage of claims actually made by class members
and not the total amount that might be claimed).

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more of the court’s resources.371 Defendants in common fund cases
have no incentive to scrutinize fee requests, and individual fund
beneficiaries generally lack sufficient incentive to do so. 372 Thus, the
court is saddled with the entire burden of reviewing submissions concerning hours expended and the hourly rate.373
ii. Lodestar-percentage cross-check374
The court may use a percentage for an initial determination and adjust it upward or downward depending on various factors, including
those reflected in the lodestar (for example, hours expended and the
market rate).375 This is sometimes referred to as a “cross-check” or
“hybrid approach.” Upward and downward adjustments in common

371. However, even if the court uses a percentage method, it may ask counsel to
maintain time-keeping records in case it is later deemed desirable to switch to a lodestar calculation or because these records may affect the percentage chosen or an adjustment to it. See Court Awarded Attorney Fees: Report of the Third Circuit Task
Force, reprinted in 108 F.R.D. 237, 271–72 (1985).
372. See, e.g., Cont’l Ill., 962 F.2d at 568 (district court reviewed submissions “despite the absence of an adversary presentation. (The class was notified of the fee request, but no member of the class objected. There is no appellee.)”). An exception is
where several law firms vie for fees from a limited source, so each has incentive to
scrutinize others’ applications. See, e.g., In re Fine Paper Antitrust Litig., 751 F.2d 562
(3d Cir. 1984). In statutory fee-shifting cases, by contrast, defense counsel generally
relieve the court of much of the burden of reviewing the plaintiff’s lodestar figures.
373. The court often offers the only protection for fund beneficiaries. As a result,
it is generally agreed that courts have not only authority but also responsibility to
review fee requests sua sponte in common fund cases. See, e.g., Cont’l Ill., 962 F.2d at
573. Several courts have said that fee requests from common funds are subject to
heightened judicial scrutiny. See, e.g., Skelton v. Gen. Motors Corp., 860 F.2d 250, 253
(7th Cir. 1988), cert. denied, 493 U.S. 810 (1989); Fine Paper, 751 F.2d at 583. See also
Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 519 (1st Cir. 1991) (In the case
of a “clear sailing” agreement—i.e., where the party paying fees agrees not to contest
the court-awarded amount as long as it does not exceed a negotiated ceiling—“rather
than merely rubber-stamping the request, the court should scrutinize it to ensure that
the fees awarded are fair and reasonable.”).
374. See Manual for Complex Litigation (Fourth) § 14.121 n.504 (2004).
375. Alternatively, the court may permit these factors to influence what percentage it chooses. The choice of percentage is discussed infra text accompanying notes
381–89.

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fund cases, whether to the lodestar or to a percentage of the fund, are
discussed below.
iii. Fee-shifting statute litigation establishes a common fund
A case governed by a fee-shifting statute may, through settlement or
judgment, create a common fund. As noted earlier, a common fund
award is not necessarily precluded in such a case.376 The Second and
Seventh Circuits have suggested that the court has discretion to make
either a fee-shifting award against defendants or an award from the
common fund, but it should not grant both. 377
b. Lodestar in common fund cases
If the court uses the lodestar in a common fund case, it should engage
in virtually the same analysis as it does in fee-shifting cases. Thus, for
example, the Seventh Circuit, using several aspects of the analysis outlined in Part 1, found a number of errors in the calculation of the
lodestar in a common fund case. It found that the trial court substituted its own notions of a reasonable hourly rate for the market rate,
refused to allow compensation of paralegals at market rates, and
slashed hours without identifying which hours were excessive and
why.378
The calculation of the lodestar in common fund cases differs from
the calculation in statutory fee-shifting cases in one respect. Although
fees for time spent preparing the fee application and litigating fee disputes are compensable in statutory fee-shifting cases, they are not

376. See supra text accompanying notes 351–52.
377. Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1327 (2d Cir. 1990)
(“Duplicative recovery is to be avoided, of course.”); Evans v. City of Evanston, 941
F.2d 473, 479 (7th Cir. 1991) (district court made statutory award and was “correct to
rule that it was unnecessary to allow both a recovery from the defendants and the
common fund in this case”). The Third Circuit task force recommends that “those
statutory fee cases that are likely to result in a settlement fund” should be treated like
common fund cases from the beginning (i.e., a percentage fee should be established
early in the case). Court Awarded Attorney Fees: Report of the Third Circuit Task
Force, reprinted in 108 F.R.D. 237, 255 (1985).
378. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 568–70 (7th Cir. 1992).

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compensable in common fund cases.379 Such efforts do not serve the
beneficiaries—indeed, if fees were compensated they would deplete
the common fund from which the beneficiaries draw.380
c. Choosing a percentage
If a court opts for the percentage method, it is faced with the task of
finding an appropriate percentage.381 The Ninth Circuit has indicated
that 25% is the “benchmark” award.382 The Second Circuit declined
to endorse a benchmark because it held that assessment of a reasonable percentage should be made on a case-by-case basis.383 The Tenth
Circuit has said that the twelve Johnson factors should be applied to
determine the proper percentage.384 The Eleventh Circuit agreed that
the Johnson factors should be considered and added other relevant
factors: “whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by
counsel, any non-monetary benefits conferred upon the class by the
379. See, e.g., Kinney v. Int’l Bhd. of Elec. Workers, 939 F.2d 690, 694 n.5 (9th
Cir. 1991); Donovan v. CSEA Local Union 1000, 784 F.2d 98, 106 (2d Cir. 1986); In re
Fine Paper Antitrust Litig., 751 F.2d 562, 595 (3d Cir. 1984).
380. Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106.
381. This determination can be made at any stage of the litigation. See infra notes
524–40 (discussing the implications of the timing in connection with case management). For an extensive discussion of the factors involved in this task, see Manual for
Complex Litigation (Fourth) § 14.121 (2004).
382. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.
1990). See also In re Pac. Enters. Sec. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (holding
that 33% award of attorneys’ fees, in light of complexity, risk, and nonmonetary results, was not an abuse of discretion and stating that 25% benchmark can be adjusted
when there are “special circumstances”).
383. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 49–50 (2d Cir. 2000). See
also In re Cendant Corp. Prides Litig., 243 F.3d 722, 736 (3d Cir. 2001) (stating that “a
district court may not rely on a formulaic application of the appropriate range in
awarding fees but must consider the relevant circumstances of the particular case,”
including size of the settlement).
384. Brown v. Phillips Petroleum Co., 838 F.2d 451, 454–55 (10th Cir. 1988).
The court suggested that the essential factor in fee-shifting cases—time and labor
required—may be less important in common fund cases than the results obtained and
amount involved. Id. at 456. For enumeration of the Johnson factors see supra note
108.

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settlement, and the economics involved in prosecuting a class action.”385 The court stated further that, as a general rule, 50% may be
established as an upper limit.386 Other courts have not set such a limit
and do not require consideration of the Johnson factors when determining a percentage.
Some courts award a lower percentage if the fund is large.387 A few
courts have used a sliding scale, allowing recovery of a given percentage of a certain amount of the fund, and decreasing percentages of
subsequent amounts. 388 Courts have discretion to use whatever percentage arrangements may prove just or workable in a particular case.
For example, if a colossal fund is created, fees may be extracted from
the interest earned rather than from the corpus of the fund.389
d. Should the fee be adjusted?
Regardless of the method used for calculating the initial fee, a court
can make an upward or downward adjustment based on the individual circumstances of a case.390 Some of the factors justifying an adjustment of the lodestar in fee-shifting cases will also apply in a common fund case (regardless of whether the lodestar or percentage
method is used). In addition, the Ninth Circuit has stated that courts
should consider all pending fee applications to ascertain whether “the
385. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).
386. Id. at 774.
387. See, e.g., In re Prudential Ins. Co. of Am. Sales Practices Litig., 148 F.3d 283,
340 (3d Cir. 1998) (remanded “for a more thorough examination and explication of
the proper percentage to be awarded . . . in light of the magnitude of the recovery”).
See also In re Smithkline Beckman Sec. Litig., 751 F. Supp. 525, 534 (E.D. Pa. 1990)
(“the percentage of recovery fee should decrease as the size of the common fund increases”).
388. See, e.g., In re Fidelity Bancorporation Sec. Litig., 750 F. Supp. 160, 163
(D.N.J. 1990) (awarding 30% of the first $10 million, 20% of the next $10 million,
and 10% of any fund beyond $20 million).
389. In re Agent Orange Prod. Liab. Litig., 611 F. Supp. 1296 (E.D.N.Y. 1985)
($180 million fund case earned $15 million interest, out of which $10 million was
assigned as fees), modified, 818 F.2d 226 (2d Cir. 1987).
390. However, if the court selects a percentage for recovery based in part on the
kind of factors normally used to make an adjustment, an adjustment would be inappropriate because it would involve a double impact of certain factors.

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combined effect of granting the fee applications in toto would be to
reduce substantially the size of the common fund available for distribution to the plaintiff class.”391 The court implied that trial courts
may adjust an award if attorneys would otherwise receive an unacceptably high portion of the common fund.392
Before the Supreme Court’s decision in City of Burlington v. Dague,393 courts permitted risk enhancements in common fund cases. 394
The two circuits that have addressed the issue have held that Dague’s
prohibition against risk enhancements does not apply in common
fund cases.395
e. The effect of a private fee agreement
A private agreement between the plaintiff and its counsel—whether
for payment by hourly rate or contingent fee—does not necessarily
dictate the amount of fees to be recovered from a fund, because such
an agreement could still leave the beneficiaries unjustly enriched by
391. Florida v. Dunne, 915 F.2d 542, 546 (9th Cir. 1990).
392. Id. at 546 (remanding for further fact finding and noting that “[t]he fact
that 72% of the common fund could be distributed in attorneys’ fees and costs in this
case is disturbing”).
393. 505 U.S. 557 (1992).
394. See, e.g., Skelton v. Gen. Motors Corp., 860 F.2d 250 (7th Cir. 1988);
Bebchick v. Wash. Metro. Area Transit Comm’n, 805 F.2d 396, 406–07 (D.C. Cir.
1986). See supra note 242.
395. In re Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir.
1994); Florin v. Nationsbank of Ga., N.A., 34 F.3d 560, 564–65 (7th Cir. 1994). In
dictum, the Third Circuit stated that Dague precluded a risk multiplier in common
fund cases. In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55
F.3d 768, 822 (3d Cir. 1995). Later, the Third Circuit noted that if risk multipliers
were applied, “they require particular scrutiny and justification.” In re Prudential Ins.
Co. of Am. Sales Practices Litig., 148 F.3d 283, 341 n.121 (3d Cir. 1998). Several district courts have applied Dague to common fund cases. See Nensel v. Peoples Heritage
Fin. Group, 815 F. Supp. 26 (D. Me. 1993); Weinberger v. Great N. Nekoosa Corp.,
801 F. Supp. 804 (D. Me. 1992); Bolar Pharm. v. Gackenbach, 800 F. Supp. 1091
(E.D.N.Y. 1992). See also In re Nineteen Appeals Arising Out of San Juan Dupont
Plaza Hotel Fire Litig., 982 F.2d 603, 619 (1st Cir. 1992) (Lay, J., sitting by designation, concurring) (in vacating fee award for other reasons, majority did not address
propriety of risk enhancement in common fund case; Judge Lay expressed his view
that Dague does apply to common fund cases).

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the lawyers’ work (or be unfair to the beneficiaries). 396 Thus, notwithstanding any private agreement, courts must independently determine
a reasonable fee under the circumstances of the case.397
f. May plaintiffs be compensated for personal expenses?
The question arises whether the plaintiff’s compensation from a
common fund may go beyond attorneys’ fees to include the private
costs incurred in bringing the suit. In Trustees v. Greenough, the Supreme Court said long ago that it may not:
[T]here is one class of allowances made by the [trial] court which we consider decidedly objectionable. We refer to those made for the personal services and private expenses of the complainant. . . . [Allowing compensation]
would present too great a temptation to parties to intermeddle in the management of valuable property or funds in which they have only the interest
of creditors, and that perhaps only to a small amount, if they could calculate
upon . . . having all their private expenses paid. 398

However, two appellate courts have limited the reach of this
holding. The Sixth Circuit permitted reimbursement for money the
plaintiff spent on accountants and investment bankers, maintaining
that these expenditures were “related to advancing the litigation” and
thus “not ‘private’ in the sense found objectionable in Greenough.”399
The Seventh Circuit noted that “[s]ince without a named plaintiff
there can be no class action, such compensation as may be necessary
to induce him to participate in the suit could be thought the equivalent of the lawyers’ nonlegal but essential case-specific expenses, such
as long-distance phone calls, which are reimbursable.”400 The court
denied compensation for the plaintiff’s personal expenses in the case
sub judice, maintaining that such compensation is in order only if the

396. See Cent. R.R. & Banking Co. v. Pettus, 113 U.S. 116, 126–27 (1885).
397. See, e.g., Lindy Bros. Builders, Inc. v. Am. Radiator & Standard Sanitary
Corp., 540 F.2d 102, 120 (3d Cir. 1976). See also Bowling v. Pfizer, Inc., 102 F.3d 777,
781 (6th Cir. 1996) (discovery of fee-sharing agreements not warranted during postsettlement approval).
398. 105 U.S. 527, 538 (1881).
399. Granada Invs. v. DWG Corp., 962 F.2d 1203, 1208 (6th Cir. 1992).
400. In re Cont’l Ill. Sec. Litig., 962 F.2d 566, 571 (7th Cir. 1992).

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79

record suggests that no named plaintiff could otherwise have been
recruited.
The Seventh Circuit did not mention the Supreme Court’s 1881
seemingly categorical rejection of recovery for the plaintiff’s personal
expenses, but the Seventh Circuit’s rationale for sometimes permitting
recovery of such expenses—that it may be necessary to attract a class
representative—seems to borrow from the fee-shifting statute rationale. However, the goals of fee-shifting statutes and the common fund
doctrine differ: Whereas the goal of fee-shifting statutes is to encourage certain kinds of actions, the goal of the common fund doctrine is
to prevent unjust enrichment.401
g. Procedures
If a class action creates a common fund, a hearing on a motion for
attorneys’ fees is optional but the court “must find the facts and state
its conclusions of law.”402 Furthermore, notice of the motion for fees
must be “directed to class members in a reasonable manner.” 403 In
cases of settlement, the parties should submit motions for attorneys’
fees soon after announcing a settlement so that the Rule 23(h)(1) notice of fees request can be combined with the required Rule 23(e) notice of settlement.404
In non-class actions, because the fee request is often unopposed,
and yet fund beneficiaries are affected by the award, the rationale for
an evidentiary hearing is compelling. As the D.C. Circuit put it:
In “common fund” cases, the losing party no longer continues to have an
interest in the fund; the contest becomes one between the successful plaintiffs and their attorneys over division of the bounty. By contrast, . . . where
the prevailing party’s fees are paid by the loser pursuant to statute, the adversary papers . . . may adequately illuminate the factual predicate for a reasonable fee. This is so because the losing party in statutory fee cases retains
an interest in contesting the size of the fee. This is not the case in “common

401. See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 479 (1980).
402. Fed. R. Civ. P. 23(h)(3).
403. Fed. R. Civ. P. 23(h)(1).
404. See Manual for Complex Litigation (Fourth) § 21.721 (2004).

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fund” fee litigation, so the District Court in those cases has a special obligation to ensure that the fee is fair.405

The Third Circuit requires a hearing before a common fund
award is made,406 and the D.C. and Second Circuits, at a minimum,
strongly encourage one.407 The First Circuit encourages such a hearing
where large sums are at stake. 408 These holdings are all in cases involving use of the lodestar. If a court uses the percentage method and
there are no factual disputes concerning an upward or downward adjustment, a hearing seems less necessary. The court can protect the
interests of beneficiaries or potential beneficiaries by choosing a reasonable percentage. The court need not expend time examining submissions by counsel, as it does in cases involving the lodestar.
If a hearing is held, the court should ensure that all attorneys
staking a claim to fees are given a reasonable opportunity to be
heard.409
The Eleventh Circuit has said that the district court “should articulate specific reasons for selecting the percentage upon which the
405. Copeland v. Marshall, 641 F.2d 880, 905 n.57 (D.C. Cir. 1980) (citation
omitted).
406. In re Fine Paper Antitrust Litig., 751 F.2d 562, 584 (3d Cir. 1984) (stating
that “the hearing on a fee application in an equitable fund case requires compliance
with those procedural rules which assure fair notice and an adequate opportunity to
be heard. Equally plainly, the requirement of an evidentiary hearing demands the
application in that hearing, of the Federal Rules of Evidence.”).
407. Copeland, 641 F.2d at 905 n.57 (“A hearing may be vital in cases involving
attorney’s fees to be paid from a common fund.”); Detroit v. Grinnell Corp., 495 F.2d
448, 470, 473 (2d Cir. 1974) (Grinnell I) (“the court should typically take pains to
allow a complete airing of all objections to a petitioner’s fee claim”; where there are
overt factual disputes, “an evidentiary hearing, complete with cross-examina tion, is
imperative”; even absent such disputes, there may “still remain a need for an additional hearing” to fill any “factual voids which remain before an adequate fee can be
fairly determined”).
408. In re Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire
Litig., 982 F.2d 603, 614 (1st Cir. 1992) (evidentiary hearing not necessary in all cases,
but here the district court held one, “wisely . . . considering the stakes”).
409. Id. (reversing fee award in large-scale consolidated case in which lawyers
from steering committee were permitted to testify, examine witnesses, and offer oral
argument at evidentiary hearing, but other lawyers representing individual clients
were not).

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attorneys’ fee award is based. . . . [It] should identify all factors upon
which it relied and explain how each factor affected its selection of the
percentage.”410 In common fund cases no less than in fee-shifting
cases, effective appellate review requires that the trial court articulate
clearly the bases for its decisions and calculations.411 Failure to do so
may be an abuse of discretion.412
Federal Rule of Civil Procedure 54 applies in the common fund
context as well.
3. Issues on appeal
a. Timing
A decision awarding or denying fees from a common fund, like a decision pursuant to a fee-shifting statute, is severable from the decision
on the merits and separately appealable.413 The discussion of the timing of appeals of statutory fee determinations414 also applies to appeals
of common fund decisions.
b. Scope of review
Courts have said little about the scope of review in common fund
cases. A district court’s factual determinations clearly must be reviewed deferentially. 415 The Ninth and Tenth Circuits have suggested
that a district court’s decision of what method to use to calculate the
award is also entitled to deference.416

410. Camden I Condo. Ass’n v. Dunkle, 946 F.2d 768, 775 (11th Cir. 1991).
411. Fine Paper, 751 F.2d at 596.
412. See Powers v. Eichen, 229 F.3d 1249, 1256 (9th Cir. 2000) (abuse of discretion not to sufficiently explain award); Gunter v. Ridgewood Energy Corp., 223 F.3d
190, 195–201 (3d Cir. 2000) (same). See also Brown v. Phillips Petroleum Co., 838
F.2d 451, 454 (10th Cir. 1988).
413. Trustees v. Greenough, 105 U.S. 527, 531 (1881); Boeing Co. v. Van Gemert, 444 U.S. 472, 479 n.5 (1980); San Juan Dupont Plaza Hotel Fire, 982 F.2d at
609–10; Overseas Dev. Disc Corp. v. Sangamo Constr. Co., 840 F.2d 1319, 1324 (7th
Cir. 1988).
414. See supra text accompanying notes 13–17 and 276–94.
415. In re Agent Orange Prod. Liab. Litig., 818 F.2d 226, 237 (2d Cir. 1987).
416. Six Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1311 (9th Cir.
1990); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir. 1988).

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c. May the court of appeals calculate an award itself?
The same considerations that might lead a court of appeals in a rare
statutory fee-shifting case to calculate the award itself rather than remand it for calculation417 appear to apply as well in common fund
cases.418

C. Substantial Benefit
The substantial benefit (or the common benefit) doctrine extends the
common fund doctrine to lawsuits that produce nonmonetary benefits. Application of the two doctrines is similar, but th ere are noteworthy differences.419
The Supreme Court has applied the substantial benefit doctrine in
two seminal cases. Mills v. Electric Auto-lite420 involved a derivative
suit by minority shareholders to set aside a merger. Finding that the
merger violated securities laws, the Court remanded the case for the
district court to fashion a remedy and specified that the plaintiffs
should be awarded attorneys’ fees. The Court noted that “this suit has
not yet produced, and may never produce, a monetary recovery from
which the fees could be paid” but maintained that, “[a]lthough the
earliest cases recognizing a right to reimbursement involved litigation
that had produced or preserved a ‘common fund’ for the benefit of a
group, nothing in these cases indicates that the suit must actually
bring money into the court as a prerequisite to the court’s power to
order reimbursement of expenses.”421 Rather, fees may be awarded
where litigation confers “a substantial benefit on the members of an
ascertainable class, and where the court’s jurisdiction of the subject
417. See supra text accompanying notes 299–302.
418. See, e.g., In re Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel
Fire Litig., 56 F.3d 295, 312 (1st Cir. 1995) (court of appeals calculates award rather
than remanding).
419. Although courts often used to treat the common fund doctrine and substantial benefit doctrine as one, the trend is to treat them independently. Of course, if
a suit produces both a common fund and a substantial nonmonetary benefit, both
doctrines may be applicable.
420. 396 U.S. 375 (1970).
421. Id. at 392.

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matter of the suit makes possible an award that will operate to spread
the costs proportionately among them.”422
In Hall v. Cole,423 the Supreme Court applied the substantial
benefit doctrine in a “union democracy” case. In assessing fees against
a labor union that expelled the plaintiff for violating a union rule
found to be unconstitutional, the Court held that the plaintiff “necessarily rendered a substantial service to his union as an institution and
to all its members. . . . [B]y vindicating his own right (of free speech),
the successful litigant dispel[led] the ‘chill’ cast upon the rights of others.”424 Extracting fees from the union treasury “simply shifts the costs
of litigation to ‘the class that has benefited from them and that would
have had to pay them had it brought the suit.’”425
In Alyeska Pipeline Service Co. v. Wilderness Society, 426 the Supreme Court rejected the “private attorney general” doctrine as a basis
for attorneys’ fees, but affirmed the vitality of the substantial benefit
doctrine developed in Mills and in Hall. The Court noted that when
fees are claimed under this doctrine, the primary inquiry is similar to
that required in a common fund case: Did the plaintiff’s suit produce
a substantial benefit for an identifiable class of beneficiaries, and can
the benefits be traced and the costs shifted fairly and with some accuracy?427 (As in statutory fee-shifting and common fund cases, interve-

422. Id. at 393–94. The beneficiaries were the shareholders, and an award against
the corporation spread costs proportionately among them.
423. 412 U.S. 1 (1973).
424. Id. at 8.
425. Id. at 9 (quoting Mills, 396 U.S. at 397).
426. 421 U.S. 240 (1975).
427. Id. at 264–65 n.39. The Ninth Circuit has held that the “tracing” requirement does not apply in labor cases because Mills did not mention it. Southerland v.
Int’l Longshoremen’s Union, 845 F.2d 796, 798–99 (9th Cir. 1987). No other court
has so held, and both the Third and D.C. Circuits have cited the tracing requirement
in labor cases. Brennan v. United Steelworkers of Am., 554 F.2d 586, 604–05 (3d Cir.
1977), cert. denied, 435 U.S. 977 (1978); Usery v. Local Union No. 639, Int’l Bhd. of
Teamsters, 543 F.2d 369, 382 (D.C. Cir. 1976). In any case, Mills requires an “ascertainable class” of beneficiaries; where there is such a class, benefits can generally be
traced with accuracy.

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nors are eligible for awards based on the substantial benefit doctrine. 428)
1. Determining whether an award is in order
a. Did the suit confer a substantial benefit?
In Mills the Supreme Court said that a substantial benefit “‘must be
something more than technical in its consequence’” and must “‘accomplish[ ] a result which corrects or prevents an abuse which would
be prejudicial to the rights and interests of the corporation or affect
the enjoyment or protection of an essential right to the stockholder’s
interest.’”429 Even apart from the fact that this statement applies only
to shareholder suits, it provides limited guidance. Lower courts have
not developed a more precise standard,430 and determinations of
whether suits conferred a substantial benefit have been largely factspecific. Nevertheless, the case law provides guidance on some important issues.
As should be clear from Mills, not every beneficiary must benefit
personally for the plaintiff to recover fees. In labor cases involving, for
428. Donovan v. CSEA Local Union 1000, 784 F.2d 98, 103 (2d Cir. 1986); Brennan, 554 F.2d at 604; Usery, 543 F.2d at 382–89. Indeed, substantial benefit awards in
labor cases are often made to intervenors. These cases are brought under the LaborManagement Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. §§ 401–531,
which authorizes suit by the Secretary of Labor only. The court must determine the
extent to which the intervenor’s work helped secure the benefit as opposed to merely
duplicating the efforts of the Secretary. See, e.g., Marshall v. United Steelworkers, 666
F.2d 845, 852 (3d Cir. 1981) (reversing denial of fees to intervenors whose efforts
“narrowed the issues for Labor and helped to isolate the specific problems with the
election” but upholding denial of compensation for work at later stages found by the
district court to be either duplicative of the Secretary’s work or ineffectual); Donovan
v. Local Union 70, 661 F.2d 1199, 1203 (9th Cir. 1981) (award proper in light of Secretary’s counsel attesting to intervenor’s assistance, but the “modest amount awarded
strongly suggests it does not exceed the value of the intervenor’s contribution”). The
intervenor often confers a benefit on the membership “by identifying, investigating
and presenting for the Secretary’s ultimate prosecution, evidence of union violations.”
Donovan, 784 F.2d at 106.
429. Mills, 396 U.S. at 396 (quoting Bosch v. Meeker Coop. Light & Power Ass’n,
101 N.W.2d 423 (Minn. 1960)).
430. But cf. Southerland, 845 F.2d at 800–01 (equating substantial benefit with
“valuable service”).

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example, an improper election or a violation of free speech, the remedy affects all members only insofar as they are presumed to benefit
from a more democratic union; this is sufficient for recovery of
fees.431 Indeed, the Third Circuit rejected a claim that an award was
improper because it secured free elections for only one district. The
district court held that “it strains belief to conclude that a benefit bestowed upon District 31, whose membership comprises approximately 9% of the entire union membership, inures to the benefit of
the steelworkers as a whole.”432 But the appellate court held that, “to
the extent that prosecution of [Labor-Management Reporting and
Disclosure Act of 1959] violations supports union democracy, such
activity confers direct and substantial benefit upon the entire union
membership.”433
The Fifth Circuit has suggested that the benefit cannot consist
solely of the likelihood that the defendant will change its practices to
prevent future liability. 434 However, no court has so held, and the
Eleventh Circuit explicitly disagreed, finding that a labor union’s “incentive to change” constituted a substantial benefit to the members:

431. See, e.g., Zamora v. Local 11, 817 F.2d 566, 571 (9th Cir. 1987) (where suit
forced union to provide Spanish translation at its meetings, defendant argued that fee
award was improper because most members did not benefit; court disagreed because
the suit “benefits the entire membership, including English-speaking members, by
facilitating discussion and participation at the monthly meetings”).
432. Brennan v. United Steelworkers of Am., 554 F.2d 586, 605 (3d Cir. 1977),
cert. denied, 435 U.S. 977 (1978).
433. Id. Of course, the benefit must be more than that shared by the entire
population. See, e.g., id. at 606 (doctrine inapplicable where “every individual might
be said to benefit”); Crane Co. v. Am. Standard, 603 F.2d 244, 255 (2d Cir. 1979) (denying fees because “[t]he shareholders . . . received no benefit from this litigation,
other than the incremental benefit which arguably accrues to all participants in the
securities markets whenever violations of the securities laws are uncovered”).
434. Shimman v. Int’l Union of Operating Eng’rs, 744 F.2d 1226, 1235 n.13 (5th
Cir. 1984) (en banc) (“Since there was no injunction . . . the benefits received by other
union members were achieved not by direct operation of the judgment, but rather
were the result of a realization that the union would have to reform itself or risk exposure to further liability.”), cert. denied, 469 U.S. 1215 (1985). This must be regarded as
dictum, as it consisted of a footnote in an opinion rejecting the fee award on other
grounds.

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“[W]e do not find such incentive an insubstantial benefit. Substantiality does not rest on compulsory reform or injunctive relief.”435
As a general matter, the substantial benefit need not be achieved
by a formal judgment.436 For example, a suit may confer a substantial
benefit if a settlement is reached,437 or if the defendant takes action
that moots the case.438 In the latter situation, the Third and Ninth
Circuits required the plaintiff to demonstrate that its complaint was
“meritorious.”439
The Sixth Circuit held that a suit conferred a substantial benefit
where a preliminary injunction forced a union to distribute the plaintiffs’ campaign literature. The case was subsequently mooted before
the court could rule on the merits—the suit “did create a ‘common
benefit’ for all of the union members: It ensured free and democratic
elections of candidates for union office.”440 This holding is consistent
with the Eleventh Circuit’s reversal of a fee award where the plaintiff
was granted a preliminary injunction preventing the imposition of a
trusteeship on the union but then lost on the merits.441 The Eleventh
Circuit found the award inappropriate because the plaintiff’s success
procured no meaningful or lasting benefit for the union members.442

435. Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir.), cert. denied, 479 U.S. 961
(1986).
436. See Ramey v. Cincinnati Enquirer, 508 F.2d 1188, 1196 (6th Cir. 1974) (“So
long as a substantial benefit is conferred upon the corporation, it is not necessary that
the litigation be brought to a successful completion.”), cert. denied, 422 U.S. 1048
(1975).
437. See, e.g., Koppel v. Wien, 743 F.2d 129, 135 (2d Cir. 1984).
438. See, e.g., Lewis v. Anderson, 692 F.2d 1267, 1270 (9th Cir. 1982); Ramey,
508 F.2d at 1196.
439. Lewis, 692 F.2d at 1270–71; Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir.),
cert. denied, 398 U.S. 950 (1970).
440. Bliss v. Holmes, 867 F.2d 256, 258 (6th Cir. 1988).
441. Markham v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers,
901 F.2d 1022 (11th Cir. 1990). See also Benda v. Grand Lodge, 584 F.2d 308 (9th Cir.
1978) (finding award premature where plaintiff was granted preliminary injunction
but decision on the merits had yet to be reached), cert. dismissed, 441 U.S. 937 (1979).
442. Markham, 901 F.2d at 1028. The court explicitly held open the possibility of
fees where a preliminary injunction “form[ed] a vital function in changing the legal
relationship between the parties.” Id.

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The Ninth Circuit held that fees are inappropriate for a labor union defendant that succeeds in defending a suit.443 Such an award
would shift costs away from the beneficiaries and on to the opposing
party—this is not the rationale in substantial benefit cases.444
b. Do the defendant and the beneficiaries share an identity of
interests?
In keeping with Mills and Hall, substantial benefit awards are usually
made in suits by a shareholder against a corporation or by a labor
union member against a union. 445 Fees are paid by the defendant, because it is the alter ego of the beneficiaries who would otherwise be
unjustly enriched by the suit. If the defendant and the beneficiaries

443. Ackley v. W. Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992).
444. In Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), the Ninth Circuit applied the same reasoning in a non-labor case, holding that a victorious defendant could not be awarded fees against the plaintiff because the plaintiff “has not
benefited from this action. To saddle him with the attorney’s fee will only increase his
losses from this action, not correlate costs with benefits.” Id. at 509. In the union
context, the Ninth Circuit has stated a second rationale for the denial of fees against
the plaintiff: The “mere prospect of such an award would ‘chill union members in the
exercise of their statutory right to sue the union.’” Ackley, 958 F.2d at 1479 (quoting
Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983)).
445. The shareholder suits are generally class actions or derivative suits. The
courts are split on whether the substantial benefit doctrine applies when the plaintiff
brings suit as an individual shareholder. Compare Bailey v. Meister Brau, 535 F.2d
982, 995 (7th Cir. 1976) (doctrine inapplicable because award would shift costs to
losing party), with Reiser v. Del Monte Props., 605 F.2d 1135, 1139 (9th Cir. 1979) (to
require that suit be brought derivatively or representatively misconstrues the purpose
of the doctrine). The Reiser court made a strong case that as long as the suit benefits
shareholders, recovery should not depend on the status of the plaintiff. See also Meister Brau, 535 F.2d at 997 (Swygert, J., dissenting) (“The majority employs a formalistic approach . . . which obscures the purpose of the [substantial benefit] rule . . . and
thereby achieves an inequitable result. That purpose is to insure that the costs of litigation are not borne solely by one or a few shareholders” where a benefit is conferred
on all the shareholders.).
Successful shareholder derivative actions qualify for a substantial benefit award
only when they produce nonmonetary relief. When they produce a monetary recovery
for the corporation, the common fund doctrine applies.

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have no such identity of interests, an award against the defendant is
improper because it would shift the costs unfairly.446
A Ninth Circuit case illustrates this point. A suit by residents of an
irrigation district forced the Secretary of the Interior to free up land
for the residents to buy at a below-market price. The plaintiffs sought
fees from the district, since members of the district benefited from the
suit. However, the Ninth Circuit found an award inappropriate because
the result achieved is not beneficial to all landowners within the District.
Those who own excess lands will be required to sell the excess at belowmarket prices, or will no longer receive water for irrigating those lands. If
appellants’ attorneys’ fees were drawn from the District’s general revenues,
there would be no congruence between the funds disbursed as the fee award
and the funds taken in from the beneficiary class in whose name that award
is made. 447

Even in shareholder suits or suits by labor union members against
a union, an award may be inappropriate because of insufficient congruence between the defendant and the beneficiaries; that is, the suit
may not benefit all shareholders or union members, and therefore, a
fee award unfairly penalizes the nonbeneficiaries. Thus, the Ninth
Circuit found an award inappropriate where a suit established that a
union’s policy, as it applied to the plaintiff, resulted in the unfair denial of pension benefits: Not all—or even most—union members
446. See, e.g., Johnson v. HUD, 939 F.2d 586, 590 (8th Cir. 1991) (denying award
because “defendants are neither the alter ego nor the representative of the benefited
class”); Oster v. Bowen, 682 F. Supp. 853, 857 (E.D. Va.) (“Where the common benefit rule is invoked against a stock corporation or a union, the beneficiaries may incur
their share of the costs by such means as reduced dividends or higher union dues.
MSVRO, however, is a non-stock corporation. Plaintiff has demonstrated no financial
relationship whatsoever between MSVRO and the physicians who may benefit from
the new procedures.”), appeal dismissed, 859 F.2d 150 (4th Cir. 1988), cert. denied, 489
U.S. 1019 (1989). See also Home Sav. Bank v. Gillam, 952 F.2d 1152, 1163 (9th Cir.
1991) (where bank sued and recovered severance benefits from its former CEO, award
of fees was reversed because defendant was hurt by the suit, and where “the party
ordered to pay fees is not a beneficiary . . . the common benefit exception does not
apply”).
447. United States v. Imperial Irrigation Dist., 595 F.2d 525, 531 (9th Cir. 1979),
rev’d in part, vacated and remanded on other grounds, 447 U.S. 352 (1980).

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89

benefited from the suit.448 Moreover, the change in policy resulting
from the suit would not make the union more democratic; its only
benefit was to the handful of employees whose pensions would be increased.
Similarly, most courts reject the applicability of the substantial
benefit doctrine in suits against the government.449 If only some
members of the population benefit from the suit, an award from the
government treasury is inappropriate because it would involve all taxpayers in the fee sharing.450 Indeed, because of the required identity of
448. Burroughs v. Bd. of Trustees, 542 F.2d 1128, 1132 (9th Cir. 1976). The court
also noted that because “no records . . . reveal[ ] the identity of persons benefited by
[the] action,” the class of beneficiaries is “of indeterminable size and not easily identifiable.” This focus is misleading because even if the beneficiaries were identified, an
award would have been improper because many members of the union were not
beneficiaries yet would have shared in the costs of any fee award. These two concerns—unequal benefits and difficulty identifying beneficiaries—often overlap. See,
e.g., Edwards v. Heckler, 789 F.2d 659, 660 (9th Cir. 1985) (reversing award where suit
resulted in more lenient standard for Social Security benefits: “the class of persons
benefited is not easily identifiable because it includes all who will benefit in the future
from the new standard . . . . The benefit will be difficult to trace because each class
member will receive a different amount depending upon his or her circumstances.
Lastly, the costs cannot be shifted with exactitude [for these reasons].”); Cantwell v.
San Mateo, 631 F.2d 631, 639 (9th Cir. 1980) (fees properly denied where suit required county to change policy with respect to retirement benefits: “The decision in
this case will affect all county employees in the entire state of California. . . . There is
no ready way to identify all the employees who might be able to avail themselves. . . . More importantly, for the same reason, there is no method of shifting the
costs with some exactitude.”).
449. See, e.g., Linquist v. Bowen, 839 F.2d 1321, 1326 (8th Cir.), cert. denied, 488
U.S. 908 (1988); In re Hill, 775 F.2d 1037, 1041 (9th Cir. 1985); Grace v. Burger, 763
F.2d 457, 459 (D.C. Cir.), cert. denied, 474 U.S. 1026 (1985); Jordan v. Heckler, 744
F.2d 1397, 1400 (10th Cir. 1984).
450. As noted supra note 343, if all citizens or taxpayers benefit, courts generally
reject an award because it would merge the substantial benefit doctrine into the rejected private-attorney general concept. In Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240 (1975), the Supreme Court noted that in its substantial benefit
and common fund cases, the beneficiaries were “small in number.” Id. at 265 n.39.
However, the number of beneficiaries does not appear to be a ground for denial of
fees except in suits against the government. In one substantial benefit case, the Third
Circuit rejected the contention that an award was inappropriate because there were
too many beneficiaries:

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interests shared by the defendant and the beneficiaries, claims for fees
based on the substantial benefit doctrine infrequently succeed outside
the corporate and labor union contexts.
c. Has the plaintiff benefited disproportionately?
The Sixth Circuit has held several times that when the plaintiff receives a damage award from a labor union, a fee award would shift the
costs unfairly.451 As the Fifth Circuit observed, if the plaintiff who received a personal award were also awarded fees,
he would pay no greater portion of the fees than any other union member
who benefited only incidentally. The fee award would not distribute fees in
proportion to benefits.
This is clearly not a case where the plaintiff “benefits a group of others in
the same manner as himself.” . . . [Plaintiff] obtained redress for personal
injuries not shared by other union members. The purpose of the common
benefit exception is to shift the costs of litigation to “the class that benefited
from them and that would have had to pay them had it brought the
suit.” . . . Other union members could not have brought suit to redress
[plaintiff’s] personal injuries.452

Similarly, the D.C. Circuit said that fees are inappropriate where “a
litigant obtain[s] a direct and pecuniary benefit, and the ‘benefit’ to

The magistrate apparently understood that language [in Alyeska] to
mean absolute numbers, and indicated that a class of 1,400,000 was too
large to have been benefited. Like any other statement, that one must
be viewed in context. Given this context, mere size does not support
the contention that the class of USWA members did not receive a
common benefit from [plaintiff’s] activity . . . . In our view, the requirement of identifiability weighs heavily in this determination, and
USWA members, though numerous, are readily identifiable as the
benefited group.
Brennan v. United Steelworkers of Am., 554 F.2d 586, 606 (3d Cir. 1977), cert. denied,
435 U.S. 977 (1978).
451. Black v. Ryder, 970 F.2d 1461, 1472 (6th Cir. 1992); Guidry v. Int’l Union of
Operating Eng’rs, 882 F.2d 929, 944 (6th Cir. 1989), vacated on other grounds , 494
U.S. 1022 (1990).
452. Shimman v. Int’l Union of Operating Eng’rs, 744 F.2d 1226, 1235 (5th Cir.
1984) (en banc), cert. denied, 469 U.S. 1215 (1985) (citations omitted).

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91

the class . . . is incremental and relatively intangible.”453 The Tenth
Circuit agreed.454
Courts have awarded fees based on the substantial benefit doctrine even though the plaintiff recovered damages, without discussing
the disproportionality issue. 455 In any event, the Sixth Circuit’s position has limited scope. First, it appears to apply only to cases in which
the plaintiff recovers damages personally—not to cases in which damages are ordered paid to the union.456 Second, it does not apply if the
plaintiff receives damages and an injunction that directly benefits the
other union members. 457 Finally, it cannot be construed to apply to
awards beyond money damages. Clearly, a fee award should not be
denied simply because the plaintiff benefits more than other beneficiaries, for example, if a suit that overturns a fraudulent election results
in the plaintiff’s becoming elected.458
d. Does the court have jurisdiction to make an award?
As explained earlier, the requirement in common fund cases that the
court have jurisdiction over the fund is generally met because the
453. Am. Ass’n of Marriage v. Brown, 593 F.2d 1365, 1369 (D.C. Cir. 1979).
454. Aguinaga v. United Food & Commercial Workers Int’l Union, 993 F.2d
1480, 1484–85 (10th Cir. 1993).
455. See, e.g., Bise v. Int’l Bhd. of Elec. Workers, 618 F.2d 1299 (9th Cir. 1979),
cert. denied, 449 U.S. 904 (1980); Rosario v. Amalgamated Ladies Garment Cutters
Union, 605 F.2d 1228 (2d Cir. 1979), cert. denied, 446 U.S. 919 (1980); Emmanuel v.
Omaha Carpenters Dist. Council, 560 F.2d 382 (8th Cir. 1977); McDonald v. Oliver,
525 F.2d 1217 (5th Cir.), cert. denied, 429 U.S. 817 (1976).
456. See Erkins v. Bryan, 785 F.2d 1538, 1549 (11th Cir.) (distinguishing Shimman from case in which damages award was ordered paid to the union), cert. denied,
479 U.S. 961 (1986).
457. Shimman itself could arguably be read to suggest that fees may be in order
in such cases. See Shimman, 744 F.2d at 1235 nn.13, 14. A year later, the Sixth Circuit
removed any doubt. See Murphy v. Int’l Union of Operating Eng’rs, 774 F.2d 114, 127
(6th Cir. 1985), cert. denied, 475 U.S. 1017 (1986).
458. See, e.g., Marshall v. United Steelworkers, 666 F.2d 845, 853 (3d Cir. 1981)
(error to deny fees to plaintiff whose suit overturning union election led to his own
election: “That the individual who brought suit also receives a direct personal benefit
from it is of no matter.”), cert. denied, 459 U.S. 823 (1982). In addition, it is irrelevant
that plaintiff’s motive in bringing the suit may have been to help himself rather than
the union. Pawlak v. Greenawalt, 713 F.2d 972, 980 (3d Cir. 1983).

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court has jurisdiction over the defendant who controls the fund.459 In
substantial benefit cases, in which there is no fund, the “jurisdiction”
or “control” criterion has occasionally proved to be more complex.
In a Sixth Circuit case, the plaintiff sued both his labor union and
an automobile company for various offenses. He prevailed against the
company for making improper payments to union officers. The district court awarded fees against the union, but the Sixth Circuit held
that the district court lacked jurisdiction to make such an award, since
the union was not party to the claim for which fees were awarded:
In holding that the court need only “have ‘jurisdiction over an entity
through which the contribution can be effected,’” the district judge has
confused jurisdiction over the person with jurisdiction over the subject
matter . . . . Liability for attorneys’ fees cannot rest, without more, on the
fortuitous chance that the claim on which a plaintiff seeks recovery of fees
may be joined in the same action with a separate claim against the intended
source of that recovery. The court making the award must have jurisdiction
over the target of that award by virtue of its jurisdiction over the subject
matter of the claim on which the award is based.460

The Ninth Circuit has held that the substantial benefit doctrine
does not create subject matter jurisdiction, and it therefore dismissed
a suit for recovery of fees filed after completion of the underlying litigation. 461 After the plaintiffs settled their inverse condemnation proceeding, they brought action for fees in federal court against property
owners who were not parties to the litigation but who had benefited
from the settlement. There was no independent basis for federal jurisdiction, and the Ninth Circuit held that the substantial benefit doctrine did not supply a basis for jurisdiction. The court acknowledged
that this issue had not been raised in the numerous cases awarding
fees based on the substantial benefit doctrine (and common fund
doctrine), but it noted that “in each such case the fee request was part

459. See supra text accompanying notes 345–48.
460. Toth v. UAW, 743 F.2d 398, 406 (6th Cir. 1984) (citations omitted).
461. Sederquist v. Court, 861 F.2d 554, 557 (9th Cir. 1988) (substantial benefit
doctrine is not part of the federal common law but “merely an equitable exception to
the traditional ‘American rule’ governing attorneys’ fees” and does not confer jurisdiction under 28 U.S.C. § 331).

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of the original proceeding and the district court’s jurisdiction rested
on grounds independent of the fee request.”462
Note that the plaintiffs could not have recovered from the property owners as part of the original suit because the property owners
were not parties. In general, a court cannot order fees paid by beneficiaries personally if they are not party to the litigation.463
e. Is an award contrary to congressional intent?
As is true in the common fund context, in substantial benefit cases, a
remedial scheme or other evidence that Congress did not intend a fee
award in a particular class of cases will defeat an award.464
2. Method for determining amount of award
The lodestar is generally used to determine the amount of fees in substantial benefit cases.465 The kinds of adjustments to the lodestar permitted in cases under the fee-shifting statutes may be made in substantial benefit cases as well. 466 In addition, the Sixth Circuit has said
that an award may be adjusted upward or downward to reflect the
extent of the benefit conferred.467
In substantial benefit cases, work preparing a fee request or litigating over fees is compensable; in common fund cases, it is not.468 In
462. Id.
463. See, e.g., Cantwell v. San Mateo, 631 F.2d 631, 639 (9th Cir. 1980) (rejecting
creative fee-sharing proposal that required non-parties to contribute to attorneys’
fees).
464. Usery v. Local Union No. 639, Int’l Bhd. of Teamsters, 543 F.2d 369, 386–88
(D.C. Cir. 1976).
465. See, e.g., Southerland v. Int’l Longshoremen’s Union, 845 F.2d 796, 800–01
(9th Cir. 1987). See also Rosenbaum v. MacAllister, 64 F.3d 1439, 1447 (10th Cir.
1995) (holding that a “percentage of the fund” approach is not appropriate in substantial benefit cases, and that while the Johnson factors must be considered, the calculation need not be based on the same approach as that used in statutory fee cases).
466. Kinney v. Int’l Bhd. of Elec. Workers, 939 F.2d 690, 695–96 (9th Cir. 1991)
(rejecting argument that adjustment to lodestar “is inappropriate in any case where
the award of fees is based upon” the substantial benefit doctrine).
467. Smillie v. Park Chem. Co., 710 F.2d 271, 275 (6th Cir. 1983).
468. Kinney, 939 F.2d at 693–95; Donovan v. CSEA Local Union 1000, 784 F.2d
98, 106 (2d Cir. 1986); Pawlak v. Greenawalt, 713 F.2d 972, 983–84 (3d Cir. 1983).

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common fund cases, the work on fees, if compensated, would deplete
the very fund that benefits the beneficiaries. This is not so in substantial benefit cases, in which the benefit conferred by the lawsuit is nonpecuniary.469
3. Issues on appeal
The discussion on appellate issues in common fund
cases470—specifically, the timing of appeals, the scope of review, and
whether the court of appeals can calculate the award itself—applies in
toto to substantial benefit cases.

D. Private Securities Litigation Reform Act of 1995
Congress enacted the Private Securities Litigation Reform Act of 1995
(PSLRA)471 “to prevent frivolous and unmeritorious securities class
actions.”472 The goal of the PSLRA was to replace lawyer-driven litigation with client-driven litigation.473 Debate quickly arose as to
whether trial judges had authority under the PSLRA to conduct an
auction for selecting class counsel. 474 The Third Circuit has addressed
469. See Kinney, 939 F.2d at 694 n.5; Donovan, 784 F.2d at 106; Pawlak, 713 F.2d
at 981.
470. See supra text accompanying notes 413–18.
471. 15 U.S.C. § 78u-4 (2000). The PSLRA provides that “[t]he most adequate
plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.” Id. § 78u-4(a)(3)(B)(v). The PSLRA also provides that total attorney
fees and expenses awarded by the court “shall not exceed a reasonable percentage of
the amount of any damages . . . actually paid to the class.” 15 U.S.C. § 78u-4(a)(6).
Courts still have a duty under Rule 23 to review the reasonableness of fees at the end
of litigation. See, e.g., In re Cendant Corp. Prides Litig., 243 F.3d 722, 730–31 (3d Cir.
2001).
472. See Manual for Complex Litigation (Fourth) § 31.3 (2004).
473. Berger v. Compaq Computer Corp., 257 F.3d 475, 484 (5th Cir. 2001) (under the PSLRA “[c]lass action lawsuits are intended to serve as a vehicle for capable,
committed advocates to pursue the goals of the class members through counsel, not
for capable, committed counsel to pursue their own goals through those class members”).
474. Selection of class counsel by an auction or bidding process was developed by
Judge Vaughn Walker in In 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 pr e-

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the issue at the stage of selection of lead counsel, 475 and the Ninth Circuit has addressed the issue at the stage of selection of lead plaintiff. 476
The Third Circuit ruled that selecting lead counsel by competitive
bidding is generally not permitted under the PSLRA.477 In In re Cendant Corp. Litigation, 478 the district court declined to accept the lead
plaintiffs’ choices for lead counsel and concomitant retainer agreements. The court conducted an auction in order to establish reasonable attorneys’ fees through market simulation.479 The Third Circuit
vacated the award of attorneys’ fees made pursuant to the auction
terms. 480 Acknowledging that the PSLRA renders plaintiff’s counsel
selection “subject to the approval of the court,”481 the Third Circuit
found that appointing counsel through auction was more than “approving” or “disapproving” the lead plaintiff’s choice.482 The court
explained:
This language makes two things clear. First, the lead plaintiff’s right to select
and retain counsel is not absolute—the court retains the power and the
duty to supervise counsel selection and counsel retention. But second, and
just as importantly, the power to “select and retain” lead counsel belongs, at
least in the first instance, to the lead plaintiff, and the court’s role is confined to deciding whether to “approv[e]” that choice. Because a courtordered auction involves the court rather than the lead plaintiff choosing
dated the PSLRA. See infra text accompanying notes 524–40. See also Proceedings of
the 2001 Third Circuit Task Force on the Selection of Class Counsel, in Third Circuit
Task Force Report on Selection of Class Counsel , 74 Temp. L. Rev. 689 (2001), for an indepth evaluation of and recommendations on auctioning practices under the PSLRA;
and Laural Hooper & Marie Leary, Auctioning the Role of Class Counsel in Class
Action Cases: A Descriptive Study (Federal Judicial Center 2001).
475. In re Cendant Corp. Litig., 264 F.3d 201 (3d Cir. 2001). Cendant involves
two actions: the non-Prides claims and the Prides claims. The Third Circuit addressed
the auctioning issue in the non-Prides claims.
476. In re Cavanaugh, 306 F.3d 726 (9th Cir. 2002).
477. Cendant, 264 F.3d at 273.
478. 182 F.R.D. 144 (D.N.J. 1998).
479. Id. at 150. Because the PSLRA affords lead plaintiffs the opportunity to
choose counsel, the court allowed plaintiffs’ counsel to meet the terms of the lowest
bids. Id. at 151. Lawyers for the two lead plaintiffs matched the lowest bids, and the
court appointed each attorney as lead counsel for the respective plaintiff.
480. Cendant, 264 F.3d 201.
481. 15 U.S.C. § 78u-4(a)(3)(B)(v) (2000).
482. Cendant, 264 F.3d at 274.

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lead counsel and determining the financial terms of its retention, this latter
determination strongly implies that an auction is not generally permissible
in a Reform Act case, at least as a matter of first resort.483

Furthermore, the Third Circuit found that the “auction” model
runs contrary to the PSLRA’s “lead plaintiff model” and to its legislative history.484 It stated that the PSLRA “evidences a strong presumption in favor of approving a properly-selected lead plaintiff’s decisions
as to counsel selection and counsel retention.”485 The court stated that
a district court’s “inquiry is appropriately limited to whether the lead
plaintiff’s selection and agreement with counsel are reasonable on
their own terms.” 486 The court continued, “the ultimate inquiry is always whether the lead plaintiff’s choices were the result of a good faith
selection and negotiation process and were arrived at via meaningful
arms-length bargaining.”487
The Ninth Circuit rejected conducting an auction to select class
counsel and held that it was error to select the lead plaintiff according

483. Id. at 273.
484. Id. at 273–74.
485. Id. at 276.
486. Id. The court gave a non-exhaustive list of questions to ask:
In making this determination, courts should consider: (1) the quantum of legal experience and sophistication possessed by the lead plaintiff; (2) the manner in which the lead plaintiff chose what law firms to
consider; (3) the process by which the lead plaintiff selected its final
choice; (4) the qualifications and experience of counsel selected by the
lead plaintiff; and (5) the evidence that the retainer agreement negotiated by the lead plaintiff was (or was not) the product of serious negotiations between the lead plaintiff and the prospective lead counsel.
Id.
487. Id. (emphasis added). In In re Lucent Technologies, Inc., Securities Litigation,
194 F.R.D. 137 (D.N.J. 2000), a case that predates Cendant, the district court held a
sealed-bid auction to select class counsel because it seemed “unlikely that there ha[d]
been a great deal of (if any) independent, arm’s length negotiating between Lead
Plaintiff and the proposed lead counsel.” Id. at 156. The court’s decision to hold an
auction was also based on judicial economy—the auction was “an effort to keep this
matter moving” and “recognized” that the provisional lead plaintiff may be replaced.
Id.

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to how advantageous an attorneys’ fee arrangement was negotiated. 488
The district court judge had refused to appoint as lead plaintiff the
party with the largest stake in the controversy because there were
“significant differences in potential attorney fees” among parties.489
Finding no other plaintiffs to be “adequate,” the district court appointed a nominal plaintiff and conducted an auction to select class
counsel.
The Ninth Circuit vacated the order appointing the nominal
plaintiff490 and expressed its disfavor with auctions for selecting class
counsel.491 It explained that under the PSLRA, the plaintiff with the
largest financial stake becomes the presumptive lead plaintiff if he or
she meets Federal Rule of Civil Procedure 23(a)’s 492 typicality and
adequacy requirements.493 The court rejected “deficiencies in the [ ]
fee agreement” as evidence that the potential lead plaintiff was inadequate, and thus allowed the court to conduct an auction.494 It stated:
The presumptive lead plaintiff’s choice of counsel and fee arrangements
may be relevant in ensuring that the plaintiff is not receiving preferential
treatment through some back-door financial arrangement with counsel, or
proposing to employ a lawyer with a conflict of interest. But this is not a
beauty contest; the district court has no authority to select for the class what
it considers to be the best possible lawyer or the lawyer offering the best
possible fee schedule. Indeed, the district court does not select class counsel
at all.495

The Third Circuit did hold open the door to selection of lead
counsel through auctions in limited situations. The court noted that if
it appeared that the lead plaintiff’s choice of counsel and fee arrange488. In re Cavanaugh, 306 F.3d 726, 731–36 (9th Cir. 2002). In Cavanaugh, the
Ninth Circuit held that the PSLRA did not change the standard for adequacy under
Fed. R. Civ. P. 23(a). Id. at 736. The Fifth Circuit came to a different conclusion in
Berger v. Compaq Computer Corp., 257 F.3d 475, 483 (5th Cir. 2001), reh’g denied, 279
F.3d 313 (5th Cir. 2002).
489. In re Quintus Sec. Litig., 201 F.R.D. 475, 488 (N.D. Cal. 2001).
490. Cavanaugh, 306 F.3d at 739.
491. Id. at 734 n.14.
492. Fed. R. Civ. P. 23(a).
493. Cavanaugh, 306 F.3d at 730.
494. Id. at 732.
495. Id.

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ments were not reasonable, then the court should give the plaintiff a
chance to renegotiate. If the plaintiff chose not to renegotiate a more
fair arrangement, then the court could designate that plaintiff as “not
adequate” and choose an alternative. In the rare situation that no
other “adequate” plaintiff existed, the court could appoint lead counsel through an auction. 496
In Cendant, the Third Circuit set forth guidelines for reviewing
the “reasonableness” of an attorneys’ fees award. The court stated that
“under the PSLRA, courts should accord a presumption of reasonableness to any fee request submitted pursuant to a retainer agreement that was entered into between a properly-selected lead plaintiff
and a properly-selected lead counsel.”497 This presumption could be
rebutted “by a prima facie showing that the (properly submitted) retained agreement fee is clearly excessive.” 498 If the presumption were
496. Cendant, 264 F.3d at 277. District courts have selected lead counsel through
an auction when the court doubted the “adequacy” of the lead plaintiff. See, e.g., In re
Commtouch Software Ltd. Sec. Litig., No. 01-C-00719, Order Re Lead Plaintiff Selection and Class Counsel Selection 2 (N.D. Cal. June 27, 2001) (district court ordered
lead plaintiff to conduct an auction under court-established procedures when the only
choice for lead plaintiff had limited English skills and was therefore not able to exercise due diligence in selecting counsel).
On a related note, one district court refused to appoint a group of four unrelated
institutional investors as lead plaintiff because the group was “cobbled together by
cooperating counsel for the obvious purpose of creating a large enough grouping of
investors to qualify as ‘lead counsel.’” In re Razorfish Inc. Sec. Litig., 143 F. Supp.2d
304, 308–09 (S.D.N.Y. 2001). See also In re Gemstar-TV Guide International, Inc. Securities Litigation, 209 F.R.D. 447, 451–52 (C.D. Cal. 2002), for a list of cases in which
district courts refused to appoint groups of unrelated investors as lead plaintiffs.
497. Cendant, 264 F.3d at 282.
498. Id. at 283. In Cendant, the Third Circuit said that courts should be guided
by the factors it set forth in Gunter v. Ridgewood Energy Corp., 223 F.3d 190, 195 n.1
(3d Cir. 2000), in determining whether the retainer is excessive:
(1) the size of the fund created and the number of persons benefited;
(2) the presence or absence of substantial objections by members of
the class to the settlement terms and/or fees requested by counsel;
(3) the skill and efficiency of the attorneys involved; (4) the complexity
and duration of the litigation; (5) the risk of nonpayment; (6) the
amount of time devoted to the case by plaintiffs’ counsel; and (7) the
awards in similar cases.

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rebutted, “the court would need to set a reasonable fee according to
the standards our previous cases have set down for class actions not
governed by the PSLRA.” 499
The Ninth Circuit held that the PSLRA does not require that attorneys’ fees be calculated on the basis of a percentage of recovery minus expenses.500

Cendant, 264 F.3d at 283. The court noted that under the PSLRA, factors 3 and 7
should be given less weight. Id. at 284. It also stated that a lodestar “cross-check” may
be appropriate. Id.
499. Cendant, 264 F.3d at 285.
500. Powers v. Eichen, 229 F.3d 1249, 1258 (9th Cir. 2000) (interpreting 15
U.S.C. § 78u-4(a)(6) language that fees “shall not exceed a reasonable percentage of
the amount of any damages and prejudgment interest actually paid to the class”).

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III
The Obligation of Bankruptcy Courts
to Examine Fee Petitions
The usual professional fee petition in bankruptcy court does not present an adversarial situation. Because the estate, not the opposing
party, pays the award of attorneys’ fees, petitions are often unopposed.
This puts an additional burden on the bankruptcy court if it scrutinizes the fee petition. The question arises, however, whether bankruptcy judges are obligated (or even authorized) to scrutinize fee petitions sua sponte pursuant to 11 U.S.C. § 330.501
The overwhelming number of bankruptcy courts that have addressed the question have held that bankruptcy courts have not only
the power but also the obligation to scrutinize fee petitions sua
sponte.502 The district courts that have addressed the issue have generally concurred.503
501. 11 U.S.C. § 330 (2000) (compensation for services and reimbursement of
expenses for estate officers). The following discussion involves bankruptcy cases
wherein professional fees have not been preapproved by the court pursuant to 11
U.S.C. § 328 (2000) (authorizing the trustee, with court approval, to retain professional services). Where a section 328 retention order is granted, a section 330 “reasonableness review” is not appropriate, and the terms of fee payment cannot be altered absent a finding that the original terms are “improvident in light of
developments not capable of being anticipated at the time of the fixing of such terms
and conditions.” 11 U.S.C. § 328(a) (2000). See In re Nat’l Gypsum Co., 123 F.3d 861,
862 (5th Cir. 1997); In re Reimers, 972 F.2d 1127, 1128 (9th Cir. 1992).
502. See, e.g., In re Gillett Holdings, 137 B.R. 462, 466 (Bankr. D. Colo. 1992); In
re Bank of New England, 134 B.R. 450, 453 (Bankr. E.D. Mass. 1991); In re Bush, 131
B.R. 364, 365 (Bankr. W.D. Mich. 1991); In re Gold Seal Prods., 128 B.R. 822, 827–28
(Bankr. N.D. Ala. 1991); In re Concept Clubs, 125 B.R. 634, 636 (Bankr. D. Utah
1991); In re Saunders, 124 B.R. 234, 236 (Bankr. W.D. Tex. 1991); In re E Z Feed
Cube, 123 B.R. 69, 73 (Bankr. D. Or. 1991); In re Sounds Distrib. Corp., 122 B.R. 952,

101

In response to a flurry of district court orders in the Eastern District of Pennsylvania stating that bankruptcy courts do not have
authority to review fee petitions sua sponte,504 the Third Circuit addressed the issue. The court held that “[b]eyond possessing the power,
. . . the bankruptcy court has a duty to review fee applications, notwithstanding the absence of objections . . . . ”505
The Third Circuit emphasized, however, that it did not intend for
bankruptcy courts to “‘become enmeshed in a meticulous analysis of
every detailed facet of the professional representation.’”506 Rather,
noting that bankruptcy courts’ time is precious, the court clarified
that the bankruptcy court faced with an unopposed fee application
“need only correct reasonably discernible abuses, not pin down to the
nearest dollar the precise fee to which the professional is ideally entitled.”507
The Third Circuit made a compelling case that bankruptcy judges
may—indeed must—review fee applications even when there is no
objection. The Third Circuit recognized the potential burden on judicial administration and recommended appropriate measures to re957 (Bankr. W.D. Pa. 1991); In re CVC, Inc., 120 B.R. 874, 876–77 (Bankr. N.D. Ohio
1990); In re Great Sweats, Inc., 113 B.R. 240, 242 (Bankr. E.D. Va. 1990); In re Gary
Fairbanks, Inc., 111 B.R. 809, 811 (N.D. Iowa 1990); In re Oberreich, 109 B.R. 936,
937 (Bankr. D. Wis. 1990); In re Inslaw, Inc., 106 B.R. 331, 333 (Bankr. D.D.C. 1989);
In re Miami Optical Exp., Inc., 101 B.R. 383, 384 (Bankr. S.D. Fla. 1989). This list is
partial; many other cases reach the same conclusion.
503. In re Taxman Clothing Co., 134 B.R. 286, 290–91 (N.D. Ill. 1991); In re
NRG Res., Inc., 64 B.R. 643, 650 (W.D. La. 1986).
504. In re Ross, 135 B.R. 230, 239 (E.D. Pa. 1991); In re T & D Tool & Die, Inc.,
132 B.R. 525, 528 n.1 (E.D. Pa. 1991); In re Jensen’s Interiors, 132 B.R. 105, 106 (E.D.
Pa. 1991); In re Pendleton, No. CIV.A.90-1091, 1990 WL 29645, at *1 (E.D. Pa. March
15, 1990); Fleet v. United States Consumer Council, Inc., No. CIV.A.89-7527, 1990
WL 18926, at *1 (E.D. Pa. Feb. 23, 1990). The sentiment was not unanimous, however. In In re Rheam, 137 B.R. 151, 152 (Bankr. E.D. Pa.), vacated in part on other
grounds, 142 B.R. 698 (E.D. Pa. 1992), the bankruptcy court thoroughly addressed
“the now-controversial issue” and held that there is the “right and duty” to review
uncontested fee petitions.
505. In re Busy Beaver Bldg. Ctrs., Inc., 19 F.3d 833, 841 (3d Cir. 1994).
506. Id. at 845 (quoting Lindy Bros. Builders v. Am. Radiator & Standard Sanitary Corp., 540 F.2d 102, 116 (3d Cir. 1976) (en banc)).
507. Id.

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duce it. Much more can be done to control the attorneys’ fees process
(in both the district courts and the bankruptcy courts) by case management, discussed infra Part 4.

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103

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this document double-sided.

IV
Techniques for Managing
Attorneys’ Fees
This part covers case-management techniques that judges use for
controlling the attorneys’ fees process. Most of the ideas were gleaned
from interviews with judges conducted in 1993 and 2001.508 When
possible, those interviewed in 1993 updated their statements for this
monograph’s revision. Lawyers, computer specialists, and U.S. trustees were also interviewed.
Most of the time that judges spend on fees involves reviewing fee
applications and conducting hearings. We consider methods for performing each of these tasks. We also discuss selecting lead counsel
through a competitive bidding process. Finally, we discuss rules of
thumb that may apply to either hearings or review of fee applications.

A. Facilitating Review of Fee Applications
According to most of the judges interviewed, reviewing fee applications to ensure their reasonableness is the most burdensome aspect of
the attorneys’ fees process. Determining the appropriate rate can be
difficult, and assessing the reasonableness of the hours claimed is
more difficult. A number of methods are available to make this process more manageable.

508. For further discussion of judges’ practices in managing and reviewing attorney fee petitions, see Manual for Complex Litigation (Fourth) § 14.2 (2004). For
guidance in managing fee litigation, see Fed. R. Civ. P. 23(h) and accompanying
Committee Note.

105

1. Sampling
The law permits courts to award only “reasonable” fees, but examining every item in a fee petition can be enormously timeconsuming. A few judges test the reasonableness of the hours claimed
without scrutinizing the entire petition: They “sample” certain parts
of the petition and apply the findings to the entire petition. 509 Sampling can be done randomly—for example, every tenth page or tenth
day—or can be done by looking at a discrete activity. 510
In Evans v. City of Evanston, 511 the Seventh Circuit approved this
approach: “This sampling procedure operates on the reasonable
premise that a lawyer’s billing and work habits and practices are, in
fact, habits and practices, which will uniformly apply to all of the lawyer’s work.”512 Judge James Zagel, the trial judge in that case, explained that he allowed each Evanston defense attorney to select three
stages of the case to be scrutinized. Judge Zagel applied the billing determinations he made in these samples to the entire case.513

509. For example, a former U.S. bankruptcy trustee reported that when she sampled hours billed for “internal communications,” she found they accounted for more
than 50% of the bill. She concluded that too much time was spent on internal communications, and made an across-the-board objection to the entire fee petition. Telephone Interview by Diane Sheehey with Marcy Tiffany, former U.S. trustee (Bankr.
C.D. Cal.) (Apr. 6, 1993).
510. When choosing a discrete activity to sample, Judge Charles E. Matheson
(retired) favored choosing an activity that had been litigated in front of him and with
which he was familiar. Telephone Interview by Diane Sheehey with Judge Charles E.
Matheson (Bankr. D. Colo.) (Apr. 22, 1993).
511. 941 F.2d 473 (7th Cir. 1991).
512. Id. at 476.
513. Telephone Interview by Diane Sheehey with Judge James B. Zagel (N.D. Ill.)
(Apr. 22, 1993). Because he was not satisfied with the three stages chosen by defense
counsel, Judge Zagel chose a fourth stage for sampling. The Seventh Circuit approved
this technique, but expressed a preference for allowing both parties to suggest which
tasks are to be sampled. Evans, 941 F.2d at 476.

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2. Requiring a pretrial estimate of fees
Some judges require attorneys at the beginning of the case to submit
an estimate of the hours they anticipate the case will entail.514 A pretrial plan or budget helps a court ensure that counsel approached the
case reasonably from the beginning—the court will be less prone to
make its assessment of reasonableness of fees according to how the
case turned out. 515 It also facilitates review of the fee application, because hours in excess of the submission can be presumed unreasonable (although the presumption may be rebutted). In addition, attorneys should be familiar with estimating anticipated hours because
many clients require attorneys to submit estimates for legal work.
3. Computerized billing programs
Computerized billing programs enable judges to analyze fee requests
rapidly and discern such indicia of reasonableness as the ratio of partners to associates and the time spent on various activities, such as discovery, research, intra-office conferences, and travel. A former U.S.
bankruptcy trustee stated that she had used a computerized billing
program’s “sorting” capabilities to discover oddities, such as one attorney’s billing more than twenty-four hours in a single day and attorneys’ use of “rounding,” by which they bill the same amount of
time every day. 516
4. Requiring attorneys to categorize records
Difficulty in reviewing fee applications can stem from the opacity of
the information they contain. For instance, if the hours are listed
chronologically by attorney (a common format for client billing), it is
hard to ascertain how many hours are spent on a discrete activity.
Therefore, some judges require that hours be categorized. Judge
Grady, in In re Continental Illinois Securities Litigation,517 required at514. For example, Judge Ivan Lemelle reported requiring a confidential, pretrial
estimate of hours in order to facilitate settlement of fee disputes. Telephone Interview
by Diane Sheehey with Judge Ivan L.R. Lemelle (E.D. La.) (Apr. 27, 1993).
515. See supra text accompanying notes 152–53.
516. Telephone Interview by Diane Sheehey with Marcy Tiffany, former U.S.
trustee (Bankr. C.D. Cal.) (Apr. 6, 1993).
517. 572 F. Supp. 931 (N.D. Ill. 1983).

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107

torneys to submit time records chronologically by activity rather than
by attorney.518
Local rules and guidelines may also require categorization. For
example, in civil rights and discrimination cases, the U.S. District
Court for the District of Maryland requires that time records be organized by litigation phase.519 The U.S. Bankruptcy Court for the
Northern District of California has guidelines that encourage categorized time records and discourage “clumping,” that is, grouping several discrete tasks into one time entry.520
5. Having defendants submit records
Many judges agree with 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.”521 Some judges make this task easier, and reduce disputes, by
requiring defense counsel to submit their own billing records. These
records provide a reference point for particular activities: If defendants claim that plaintiffs spent too much time researching an issue, it
is instructive to see how much time their counsel spent.522 On occasion, this method will uncover blatant contradictions, such as billing
unequal hours for attending the same conference. However, there
cannot always be an exact correspondence between the defendant’s
hours and the plaintiff’s hours. For example, if a plaintiff spends few
hours writing a complaint and it contains vague legal theories, the
defendant will need to spend more time figuring out the complaint.523
518. Id. at 934. See also Tom Willging, Judicial Regulation of Attorneys’ Fees:
Beginning the Process at Pretrial (Federal Judicial Center 1984) 30–32.
519. See infra Appendix A (Appendix B to Local Rules, paragraph 1b).
520. Guidelines for Compensation and Expense Reimbursement of Professionals
and Trustees, attached as Appendix B.
521. Telephone Interview by Diane Sheehey with Judge Edward Becker (3d Cir.)
(May 25, 1993).
522. For example, Judge William Browning found “a significant amount of discrepancies” when he required defendants to submit their records in one case. Telephone Interview by Diane Sheehey with Judge William D. Browning (D. Ariz.) (Apr.
21, 1993).
523. Telephone Interview by Diane Sheehey with Judge James B. Zagel (N.D. Ill.)
(Apr. 22, 1993).

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B. Selection of Lead Counsel by Competitive Bidding
Judge Vaughn Walker developed a method for awarding fees in common fund cases—selecting class counsel through competitive bidding.
In a celebrated case, 524 he had each firm that wanted to represent the
class submit an application (under seal) that established the firm’s
qualifications and specified a schedule of percentages according to
which it would request fees.525 He reasoned that bidding “most closely
approximates the way class members themselves would make these
decisions and should result in selection of the most appropriately
qualified counsel at the best available price.” 526 In a subsequent opinion, Judge Walker expressed satisfaction with the result: he described
“arrangements fully consistent with the . . . standard of reasonable
compensation” and “accomplished without the ‘protracted, complicated, and exhausting’ fee litigation that typically accompanies lodestar determinations.”527
Judge Walker has used the method more than once.528 He notes
that he does not necessarily appoint the lowest bidder as class counsel—quality and experience must be considered.529
Over time, judges who have used bidding to select counsel have
developed guidelines or required specific procedures. The following is
a brief overview of these guidelines and procedures.530

524. In re Oracle Sec. Litig., 131 F.R.D. 688 (N.D. Cal.), modified, 132 F.R.D. 538
(N.D. Cal. 1990). See supra note 474.
525. The bid of the firm selected called for different percentages for different
ranges of recovery: 24% of the first $1 million recovered, 20% of the next $4 million,
16% of the next $10 million, and 12% of any additional recovery. These percentages
were to apply if the case was resolved within a year; higher percentages were to apply
otherwise.
526. Oracle, 131 F.R.D. at 690.
527. Oracle, 132 F.R.D. at 547–48.
528. In re Quintus Sec. Litig., 201 F.R.D. 475 (N.D. Cal. 2001); Wenderhold v.
Cylink Corp., 189 F.R.D. 570 (N.D. Cal. 1999); In re California Micro Devices Sec.
Litig., 168 F.R.D. 257 (N.D. Cal. 1996); In re Wells Fargo Sec. Litig., 156 F.R.D. 223
(N.D. Cal. 1994).
529. Telephone Interview by Diane Sheehey with Judge Vaughn Walker (N.D.
Cal.) (Apr. 21, 1993).

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•

•

•
•

Discovery: Bidding is usually performed prior to discovery. 531
Judge Milton Shadur explained that because the object of
bidding is to simulate the market, where clients and attorneys
negotiate fees without the benefit of discovery, discovery
should not be a component.532
Limits on field of potential bidders: Most district courts have
opened bidding to any interested attorney or firm.533 In a
PSLRA case, Judge William Alsup ordered that an invitation
for bidding proposals from potential class counsel be placed
on the case’s Web site.534
Sealed bids: Sealed bids are usually required.
Joint bids: Joint bids have been allowed,535 but judges caution
that allowing large firms to collude may chill competition in
the marketplace.536

530. This overview draws heavily from Laural L. Hooper & Marie Leary, Auctioning the Role of Class Counsel in Class Action Cases: A Descriptive Study (Federal
Judicial Center 2001).
531. For cases filed after the Private Securities Litigation Reform Act of 1995,
discovery is stayed until after selection of lead plaintiff and class counsel. 15 U.S.C.
§§ 772-1(b)(1), 78u-4(b)(3)(B) (2000).
532. Hooper & Leary, supra note 530, at 30, n.161 (Telephone Interview by
Laural Hooper and Marie Leary with Senior Judge Milton I. Shadur (N.D. Ill.) (July 6,
2001)).
533. Judge Shadur limits bidding to attorneys of record and attorneys who filed
timely motions. Id.
534. See In re Commtouch Software Ltd. Sec. Litig., No. 01-C-00719, Order Re
Lead Plaintiff Selection and Class Counsel Selection 4 (N.D. Cal. June 27, 2001). See
supra text accompanying notes 471–500 for a discussion of when bidding is not allowed under the PSLRA.
535. See In re Comdisco Sec. Litig., 141 F. Supp.2d 951, 955 (N.D. Ill. 2001); In re
Bank One Shareholders Class Actions, 96 F. Supp. 2d 780 (N.D. Ill. 2000); In re Cendant Corp. Litig., 182 F.R.D. 144, 151 (D.N.J. 1998).
536. Judge Shadur believes that allowing previously unassociated firms to engage
in joint discussions lessens the quality and freedom of bidding by chilling the market.
Telephone Interview by Laural Hooper and Marie Leary with Senior Judge Milton I.
Shadur (N.D. Ill.) (July 6, 2001). In one case, Judge Vaughn Walker banned two firms
from submitting a joint bid because allowing the well-financed firms to collude
“might very well eliminate whatever possibility remains in this case of a meaningful
competition to secure class counsel designation.” In re Wells Fargo Sec. Litig., 156
F.R.D. 223, 226 (N.D. Cal. 1994). Judge Walker noted, however, that a “joint bid by

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Awarding Attorneys’ Fees and Managing Fee Litigation

•

Expenses included in bids: Judge Walker, who has required expenses to be included in all of his bidding cases, explains that
to not include costs would “encourage[ ] counsel to inflate
cost calculations . . . . It creates an incentive for the firm to
categorize as costs anything that could conceivably be so considered and diminishes the incentives for the firm to economize.” 537
• Time period for bid submission: In cases surveyed,538 time periods for bid submission ranged from eight to fifty-four calendar days.539
Even judges who have not used the “bidding” approach recommend negotiating a fee at the outset of a case that is likely to create a
common fund.540

C. Eliminating or Streamlining Hearings
A number of judges have adopted measures that preclude the need for
or at least streamline fee hearings.
1. Tentative ruling
To avoid unnecessary hearings, Judge Geraldine Mund issues a tentative ruling on the fee petition.541 Judge Mund’s judicial assistant faxes
two or more firms otherwise too small to take on class counsel responsibilities would
introduce a new competitor to the selection process.” Id.
537. Wenderhold v. Cylink Corp., 189 F.R.D. 570, 573 (N.D. Cal. 1999).
538. See Hooper & Leary, supra note 530, at 49.
539. The latter time period covers an extension of the bidding period in one case
and a second round of bidding in another. Hooper & Leary, supra note 530, at 49.
540. The Third Circuit Task Force recommended establishing a percentage at the
“earliest practicable moment.” Court Awarded Attorney Fees: Report of the Third
Circuit Task Force, reprinted in 108 F.R.D. 237, 255 (1985). Even if the percentage is
not established early on, the court can tell the parties that the percentage method will
be used. This will reduce their incentive to increase hours expended and can induce
early settlement. As a case progresses, the court may find that the lodestar is more
suitable than a percentage, and thus may want to shift from a percentage to the lodestar. See id. at 272. Therefore, the court might require plaintiff’s counsel to maintain
billing records.
541. Telephone Interview by Diane Sheehey with Judge Geraldine Mund (C.D.
Cal.) (Apr. 2, 1993) (updated by mail Jan. 6, 2004).

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the tentative ruling to lead counsel with instructions that the ruling be
given to each legal professional involved in the case. If counsel submits to the ruling, he or she faxes back an acceptance letter and does
not appear. If a party shows up at the hearing and objects, Judge
Mund continues the matter. If there is no objection, the tentative
ruling becomes final and counsel submits an order on it. However, if
counsel chooses not to submit to the tentative ruling and argues
against it, Judge Mund will not reimburse counsel for the appearance
if she is not persuaded to change the ruling. The form Judge Mund
faxes to lead counsel is reproduced infra Appendix C. Although Judge
Mund sits in bankruptcy court, tentative rulings could cut down on
the number of hearings in district courts as well. And by alerting
counsel to parts of the petition that the judge finds troublesome, tentative rulings help focus hearings that do take place.
2. Written declaration in lieu of testimony
To streamline contested fee hearings, attorneys may present evidence
of their hours by way of written declaration in lieu of direct testimony.542
3. Informal conference
An informal conference can either eliminate the need for or focus a
fee hearing. Judge William Schwarzer sees great potential in holding
an informal conference to narrow and define issues before a hearing. 543

D. General Techniques
The above techniques are specific measures for facilitating review of
applications and avoiding or streamlining hearings. Some more general ideas for managing fees also emerged from our interviews.

542. See Charles Richey, A Modern Management Technique for Trial Courts to
Improve the Quality of Justice: Requiring Direct Testimony to Be Submitted in Written
Form Prior to Trial, 72 Geo. L.J. 73 (1983) (advocating this technique for trials).
543. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.),
Washington, D.C. (Mar. 18, 1993).

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1. Setting a framework early in the case
Many judges stress the importance of informing attorneys, early in the
case, what is expected of them in regard to attorneys’ fees. Some
judges lay down specific instructions at the outset of the case. 544
Ground rules can cover staffing at depositions, hearings, and trials;
rates of compensation for various levels of legal work; communications among attorneys; and expenses.545 Judges should not hesitate to
require lawyers to resubmit unclear or incomprehensible fee petitions.
2. Local rules, guidelines, and written opinions
A number of courts have adopted billing guidelines or local rules on
attorneys’ fees. For example, the U.S. District Court for the District of
Maryland adopted guidelines for determining attorneys’ fees in civil
rights and discrimination cases.546 The guidelines require that the fee
application be organized by litigation phase. 547 The guidelines also list
compensable and non-compensable time, and set hourly rate ranges
for attorneys.
In contrast to this last aspect of the Maryland guidelines, the
Southern District of Texas Bankruptcy Court’s Order Regarding
Chapter 13 Attorney’s Fees 548 set aside previously adopted benchmark
fees. Instead the court adopted a market approach to attorneys’
fees.549
Many bankruptcy courts publish ground rules for reimbursement
of attorneys and other professionals so that no one is surprised at the
end of the proceeding.550

544. See, e.g., In re Cont’l Ill. Sec. Litig., 572 F. Supp. 931 (N.D. Ill. 1983). See
also Tom Willging, Judicial Regulation of Attorneys’ Fees: Beginning the Process at
Pretrial (Federal Judicial Center 1984), a study demonstrating the legal profession’s
support for Judge Grady’s pretrial order regulating attorneys’ fees in that case.
545. Cont’l Illinois, 572 F. Supp. at 933–35.
546. See infra Appendix A.
547. See supra text accompanying notes 517–20.
548. Sept. 4, 2002.
549. See infra Appendix D.
550. See supra text accompanying notes 544–45. A copy of the Northern District
of California Bankruptcy Court’s Guidelines for Compensation and Expense Reimbursement of Professionals and Trustees is presented in Appendix B.

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113

Many judges emphasize that, one way or another, it is helpful for
a court to establish and publicize a modus operandi concerning attorneys’ fees. Guidelines should at least direct attorneys to submit fee
applications in a readable and comprehensible form and to provide
appropriate informative summaries to save the judge from having to
plow through voluminous backup data.
3. Delegation
At every stage of the fee process, the court should consider calling on
others for assistance.
a. Law clerks, assistants, and deputies
Law clerks, judicial assistants, and even deputies can help with the
sometimes onerous task of cross-checking attorneys’ claims for time
against court records. For example, an assistant can compare an attorney’s claim for appearances against the court reporter’s or deputy’s
time records.551 A law clerk can pull a motion out of the court file to
check if time billed for it is reasonable.552 Clerks can also check final
petitions against interim submissions.553
b. Magistrate judges
Referral of attorneys’ fees issues to magistrate judges varies throughout the courts. Many judges call on magistrate judges to handle fees in
complex cases. Judge Jack Weinstein says that in large cases that settle,
and in which the magistrate judge has handled discovery, he refers the
attorneys’ fees issue to the magistrate judge with guidelines on what is
compensable.554 In a fully tried complex case, however, Judge Wein-

551. Telephone Interview by Diane Sheehey with Judge William D. Browning
(D. Ariz.) (Apr. 21, 1993).
552. Interview by Diane Sheehey with Judge William W Schwarzer (N.D. Cal.),
Washington, D.C. (Mar. 18, 1993).
553. Telephone Interview by Diane Sheehey with Judge Norma Shapiro (E.D.
Pa.) (May 12, 1993).
554. Telephone Interview by Diane Sheehey with Judge Jack B. Weinstein
(E.D.N.Y.) (Apr. 6, 1993), updated by mail (Jan. 5, 2004).

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stein handles the fees issues because he has seen the legal work played
out before him. 555
c. Special masters and alternative dispute resolution
Some judges appoint special masters to assist with attorneys’ fees, especially in complex cases. Professor Laura Bartell, who has served as a
special master, notes that the parties liked it
because it meant the fee application was going to be decided fast. They were
very happy to see that somebody had responsibility for this who was not
going to be distracted by a docket, by the Speedy Trial Act, or anything else,
and was just going to focus on this, decide it, write the opinion, and issue it
so they could get paid.556

Depending on the practices in their district, judges may also wish
to consider alternative dispute resolution for especially complex fee
disputes.
d. Experts
On occasion, a judge may need expert assistance in reviewing fee applications if the judge feels that he or she has been away from practice
so long that he or she is out of touch with billing practices and rates.
Judges are increasingly availing themselves of expert assistance, especially in bankruptcy court.557 Finding such experts is getting easier, as
more lawyers, bar committees, and other consultants are offering to
provide these services.
e. Lead counsel and class actions
The management of attorneys’ fees in class actions presents unique
issues and options. First, the selection of class counsel can be tied to
the attorneys’ fees process. Second, Federal Rule of Civil Procedure
555. Id.
556. Telephone Interview by Diane Sheehey with Laura B. Bartell (Apr. 9, 1993),
updated by mail (Jan. 5, 2004). At the time of the interview, Professor Bartell was a
partner with Shearman & Sterling. She is now Associate Professor at Wayne State
University Law School.
557. Judge Sidney Brooks, for example, has used court-appointed experts to examine fees in several cases. Telephone Interview by Diane Sheehey with Chief Judge
Sidney Brooks (Bankr. D. Colo.) (Apr. 1, 1993), updated by mail (Jan. 2004).

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23(e) requires court approval of class action settlements, many of
which include attorneys’ fees, and courts can take measures that make
fee settlement fairer and easier for the court to review.
Additionally, in class actions, lead counsel can be given chores
that facilitate the judge’s management of fees. For example, lead counsel can supervise fee petitions submitted by all law firms.558

E. Conclusion
The techniques described in this section are not exhaustive. Apart
from presenting ideas for judges to consider, this discussion is intended to encourage innovation in judges’ efforts to manage the attorneys’ fees process.

558. Telephone Interview by Diane Sheehey with Judge Norma Shapiro (E.D.
Pa.) (May 12, 1993), updated by mail (Dec. 29, 2003).

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Appendix A
Local Rules of the U.S. District Court
for the District of Maryland,
Appendix B (2004)
APPENDIX B: RULES AND GUIDELINES FOR DETERMINING
LODESTAR ATTORNEYS’ FEES IN CIVIL RIGHTS
AND DISCRIMINATION CASES1
1. Mandatory Rules Regarding Billing Format, Time Recordation,
and Submission of Quarterly Statements
a. Time shall be recorded by specific task and lawyer or other
professional performing the task as set forth more fully in L.R.
109.2.b.
b. Fee applications, accompanied by time records, shall be submitted in the following format organized by litigation phase2
1. These rules and guidelines apply to cases in which a prevailing party would be
entitled to reasonable attorneys’ fees under 42 U.S.C. § 1988(b) and to cases brought
under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Equal Pay Act, the Americans With Disabilities Act, ERISA, the Rehabilitation Act, the Individuals With Disabilities Education Act, the Family and Medical Leave Act, the Fair Credit Reporting Act, and equivalent statutes. They do not
apply to Social Security cases.
2. In general, preparation time and travel time should be reported under the
category to which they relate. For example, time spent preparing for and traveling to
and from a Court hearing should be recorded under the category “Court hearings.”
Factual investigation should also be listed under the specific category to which it relates. For example, time spent with a witness to obtain an affidavit for a summary
judgment motion or opposition should be included under the category “motions

117

i.

case development, background investigation and case
administration (includes initial investigations, file setup,
preparation of budgets, and routine communications
with client, co-counsel, opposing counsel, and the Court);

ii. pleadings;
iii. interrogatories, document production, and other written
discovery;
iv. depositions (includes time spent preparing for depositions);
v. motions practice;
vi. attending Court hearings;
vii. trial preparation and post-trial motions;
viii. attending trial;
ix. ADR; and
x. fee petition preparation.
c. Counsel for a party intending to seek fees if the party prevails
shall submit to opposing counsel quarterly statements showing the amount of time spent on the case and the total value
of that time. These statements need not be in the “litigation
phase” format provided in Guideline 1.b or otherwise reflect
how time has been spent. The first such statement is due at
the end of the first quarter in which the action is filed.
d. Upon request by the Judge (or private mediator agreed upon
by the parties) presiding over a settlement conference, counsel
for all parties (with the exception of public lawyers who do
not ordinarily keep time records) shall turn over to that officer (or mediator) statements of time and the value of that
practice.” Similarly, a telephone conversation or a meeting with a client held for the
purpose of preparing interrogatory answers should be included under the category
“Interrogatories, document production and other written discovery.” Of course, each
of these tasks must be separately recorded in the backup documentation in accordance with Guideline 1.a.

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Awarding Attorneys’ Fees and Managing Fee Litigation

time in the “litigation phase” format provided in Guideline
1.b.
e. If during the course of a fee award dispute a Judge orders that
the billing records of counsel for the party opposing fees must
be turned over to the party requesting fees, those billing records shall be submitted in the “litigation phase” format.
2. Guidelines Regarding Compensable and Non-compensable Time
a. Where plaintiffs with both common and conflicting interests
are represented by different lawyers, there shall be a lead attorney for each task (e.g., preparing for and speaking at depositions on issues of common interest and preparing pleadings,
motions, and memoranda), and other lawyers shall be compensated only to the extent that they provide input into the
activity directly related to their own client’s interests.
b. Only one lawyer for each separately represented party shall be
compensated for attending depositions . 3
.

c. Only one lawyer for each party shall be compensated for client
and third party conferences.
d. Only one lawyer for each party shall be compensated for attending hearings.4
3. Departure from this guideline would be appropriate upon a showing of a valid
reason for sending two attorneys to the deposition, e.g. that the less senior attorney’s
presence is necessary because he organized numerous documents important to the
deposition but the deposition is of a critical witness whom the more senior attorney
should properly depose. Departure from the guideline also would be appropriate
upon a showing that more than one retained attorney representing the defendant
attended the deposition and charged the time for her attendance. (If two lawyers from
a public law office representing a defendant attend a deposition, the Court should
consider this fact and the role played by the second lawyer, i.e., whether she provided
assistance, including representation of a separate public agency or individual defendant, or was present for merely educational purposes, in determining whether plaintiff should also be compensated for having a second lawyer attend.)
4. The same considerations discussed in footnote 3 concerning attendance by
more than one lawyer at a deposition also apply to attendance by more than one lawyer at a hearing. There is no guideline as to whether more than one lawyer for each

Appendix A

119

e. Generally, only one lawyer is to be compensated for intraoffice conferences. If during such a conference one lawyer is
seeking the advice of another lawyer, the time may be charged
at the rate of the more senior lawyer. Compensation may be
paid for the attendance of more than one lawyer at periodic
conferences of defined duration held for the purpose of work
organization and delegation of tasks in cases where such conferences are reasonably necessary for the proper management
of the litigation.
f.

Travel
i.

Whenever possible time spent in traveling should be devoted to doing substantive work for a client and should be
billed (at the usual rate) to that client. If the travel time is
devoted to work for a client other than the matter for
which fees are sought, then the travel time should not be
included in any fee request. If the travel time is devoted to
substantive work for the client whose representation is the
subject of the fee request, then the time should be billed
for the substantive work, not travel time.

ii. Up to 2 hours of travel time (each way and each day) to
and from a Court appearance, deposition, witness interview, or similar proceeding that cannot be devoted to
substantive work may be charged at the lawyer’s hourly
rate.
iii. Time spent in long-distance travel above the 2 hours limit
each way, that cannot be devoted to substantive work,
may be charged at one-half of the lawyer’s hourly rate.

party is to be compensated for attending trial. This must depend upon the complexity
of the case and the role that each lawyer is playing. For example, if a junior lawyer is
present at trial primarily for the purpose of organizing documents but takes a minor
witness for educational purposes, consideration should be given to billing her time at
a paralegal’s rate.

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Awarding Attorneys’ Fees and Managing Fee Litigation

3. Guidelines Regarding Hourly Rates5
a. Lawyers admitted to the bar for less than five years: $135-170.
b. Lawyers admitted to the bar for five to eight years: $150-225.
c. Lawyers admitted to the bar for more than eight years: $200275.
d. Paralegals and law clerks: $90.
4. Reimbursable Expenses
a. Generally, reasonable out-of-pocket expenses (including longdistance telephone calls, express and overnight delivery services, computerized on-line research and faxes) are compensable at actual cost.
b. Mileage is compensable at the rate of reimbursement for official government travel in effect at the time the expense was
incurred.
c. Copy work is compensable at the rate established by the Court
for taxation of costs.

5. These rates are intended solely to provide practical guidance to lawyers and
judges when requesting, challenging and awarding fees. The factors established by
case law obviously govern over them. However, the guidelines may serve to make the
fee petition less onerous by narrowing the debate over the range of a reasonable
hourly rate in many cases. The guidelines were derived by informally surveying members of the bar concerning hourly rates paid on the defense side in employment discrimination and civil rights cases and adding an upward adjustment to account for
the risk of nonpayment faced by a plaintiff’s lawyer in the event that her client does
not prevail. The guideline rates also are generally comparable to those applied by the
Court in several recent cases involving the award of fees to plaintiffs’ counsel after
considering affidavits submitted in support of such rates. They do not apply to cases
governed by the Prison Litigation Reform Act, which sets an hourly rate by statute.

Appendix A

121

This page is left blank intentionally to facilitate printing of
this document double-sided.

Appendix B
Guidelines for Compensation and
Expense Reimbursement of
Professionals and Trustees,
U.S. Bankruptcy Court for the
Northern District of California
United States Bankruptcy Court
Northern District of California
Guidelines for Compensation and Expense Reimbursement
of Professionals and Trustees
The following guidelines are promulgated pursuant to B.L.R. 9029-1
and govern the most significant issues related to applications for
compensation and expense reimbursement. The guidelines cover the
narrative portion of an application, time records and expenses. They
apply in their entirety to professionals seeking compensation under 11
U.S.C. § 330 and, where indicated, to Chapter 7 and Chapter 11 trustees. The guidelines are not intended to cover every situation. The
court is advised that compliance with these guidelines will satisfy the
requirements of the United States Trustee.
I.

Guidelines Applicable to Attorneys and Other Professionals
The Narrative
1. Employment and Prior Compensation—The application
should disclose the date of the order approving applicant’s
employment and contain a clear statement itemizing the date

123

of each prior request for compensation, the amount requested, the amount approved and the amount paid.
2. Case Status—With respect to interim requests, the application should briefly explain the history and the present posture
of the case.
In Chapter 11 cases, the information furnished should describe the general operations of the debtor; whether the business of the debtor, if any, is being operated at a profit or loss;
the debtor’s cash flow; whether a plan has been filed, and if
not, what the prospects are for reorganization and when it is
anticipated that a plan will be filed and a hearing set on the
disclosure statement.
In Chapter 7 cases, the application should contain a report of
the administration of the case including the disposition of
property of the estate; what property remains to be disposed
of; why the estate is not in a position to be closed; and
whether it is feasible to pay an interim dividend to creditors.
In both Chapter 7 and Chapter 11 cases, the application
should state the amount of money on hand in the estate and
the estimated amount of other accrued expenses of administration. On applications for interim fees, the applicant
should orally supplement the application at the hearing to
inform the Court of any changes in the current financial
status of the debtor’s estate since the filing of the application.
With respect to final requests, applications should meet the
same criteria except, where a Chapter 7 Trustee’s final account is being heard at the same time, the financial information in the final account need not be repeated.
Fee applications submitted by special counsel seeking compensation from a fund generated directly by their efforts, auctioneers, real estate brokers, or appraisers do not have to
comply with the above. For all other applications, when more
than one application is noticed for the same hearing, they

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Awarding Attorneys’ Fees and Managing Fee Litigation

may, to the extent appropriate, incorporate by reference the
narrative history furnished in a contemporaneous application.
3. Project Billing—In any application exceeding $10,000, or
when the professional’s anticipated services for the case will
exceed $20,000, the narrative should categorize by subject
matter and separately discuss each project or task. All work
for which compensation is requested should be in a category.
The professional may use reasonable discretion in defining
projects for this purpose, provided that the application provides meaningful guidance to the Court as to the complexity
and difficulty of the task, the professional’s efficiency, and the
results achieved. The number of billing categories created
should take account of the total amount of fees and expenses
sought in the case. Thus, for example, an application totaling
$100,000 should generally be broken into more categories
than an application totaling $10,000, even if the nature of the
work represented in the two applications is otherwise similar.
There is no minimum amount necessary to justify the creation of a new billing category. The maximum amount that
should be included in a single category should generally be
$20,000. This cap may be exceeded where further breakdown
is impractical (e.g., courtroom time in a long trial). Generally,
each category should contain less than $20,000. Miscellaneous
items may be included in a category such as case administration, but such a category should not generally represent more
than 15% of the fee request.
Work in a main case should be broken into categories appropriate to the size, chapter, and complexity of the case, and the
role of the professional. Generally, each adversary proceeding
should be set forth in a separate category. Within each adversary proceeding, subcategories should be created for pleadings,
discovery, motions, and trial. In complex adversary proceedings, additional categories may be appropriate.
With respect to each project or task, the number of hours
spent, the results obtained, and the amount of compensation

Appendix B

125

and expenses requested should be set forth at the conclusion
of the discussion of that project or task. Please also note the
requirement in Guideline 11 relating to time records by project.
4. Billing Summary—Hours and total compensation requested
in each application should be aggregated and itemized as to
each professional and paraprofessional who provided compensable services.
5. Paraprofessionals—Fees may be sought for paralegals, professional assistants and law clerks only if identified as such and if
the following requirements are met:
a. The services for which compensation is sought would
have had to be done by the professional if not done by the
paraprofessional, and would have been compensable under these guidelines;
b. The person who performed the services is specially
trained or is a law school student, and is not primarily a
secretary or clerical worker; and
c. The application includes a resume or summary of the
paraprofessional’s qualifications.
6. Preparation of Application—Reasonable fees for preparation
of a fee application may be requested. Fees for preparation of
a fee application may not exceed five percent of the total
amount of fees and costs requested in the application. This
five percent guideline is a ceiling rather than a floor; preparation expenses equaling five percent are not presumptively reasonable. The aggregate number of hours spent, the amount
requested and the percentage of the total request which the
amount represents must be disclosed. If the actual time spent
will be reflected and charged in a future fee application, this
fact should be stated but an estimate nevertheless provided.
7. Client Review of Billing Statement—A debtor in possession,
trustee or official committee shall exercise reasonable business
judgment in monitoring the fees and expenses of the estate’s

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Awarding Attorneys’ Fees and Managing Fee Litigation

professionals. Billing statements should be sent to the employing entity (debtor in possession, trustee or official committee) on a monthly basis. A fee application shall be sent to
the employing entity at least 20 days prior to the scheduled
hearing date. The application shall be transmitted with a
cover letter that contains the following statement:
The court’s Guidelines for Compensation and Expense Reimbursement of Professionals and Trustees provide that a debtor in
possession, a trustee or an official committee must exercise reasonable business judgment in monitoring the fees and expenses of
the estate’s professionals. We invite you to discuss any objections,
concerns or questions you may have with us. The Office of the
United States Trustee will also accept your comments. The court
will also consider timely filed objections by any party in interest
at the time of the hearing.
A copy of the transmittal letter shall be attached to the application.
8. Certification—Each application for compensation and expense reimbursement must contain a certification by the
professional designated by the applicant with the responsibility in the particular case for compliance with these guidelines
(“Certifying Professional”) that: (a) the Certifying Professional has read the application; (b) to the best of the Certifying Professional’s knowledge, information and belief, formed
after reasonable inquiry, the compensation and expense reimbursement sought is in conformity with these guidelines,
except as specifically noted in the certification application;
and (c) the compensation and expense reimbursement requested are billed at rates, in accordance with practices, no
less favorable than those customarily employed by the applicant and generally accepted by the applicant’s clients.
9. Short Form Applications—Where the professional is filing
only a final request for compensation in a Chapter 7 case and
the request, exclusive of costs, does not exceed $15,000 for the
case, and has not charged in excess of one hour of time for

Appendix B

127

preparation of the application, the professional has the option
of utilizing the approved Chapter 7 form application.
In a Chapter 13 case, where the professional has utilized and
filed the Rights and Responsibilities of Chapter 13 Debtors
and their Attorneys, the professional has the option of utilizing the approved Chapter 13 form application when seeking
compensation in excess of that approved at the time of confirmation.
Copies of the approved form applications are available in the
Clerk’s Office.
Time Records
10. Time Records Required—All professionals, except auctioneers, real estate brokers, appraisers and those employed on a
contingency fee basis, must keep accurate contemporaneous
time records. The Court may, however, specifically direct that
time records be kept on a contingent fee matter.
11. Time Records By Project—In any application exceeding
$10,000, or where the professional’s anticipated services for
the case will exceed $20,000, time records should be kept by
categories as described in Paragraph 3 relating to Project
Billing above. Time records should be sorted, assembled and
attached to the application by category corresponding to the
discussion in the narrative.
12. Increments—Professionals are required to keep time records
in minimum increments no greater than six minutes. Professionals who utilize a minimum billing increment greater than
.1 hour are subject to a substantial reduction of their requests.
13. Descriptions—At a minimum, the time entries should identify the person performing the services, the date performed,
what was done and the subject involved. Mere notations of
telephone calls, conferences, research, drafting, etc., without
identifying the matter involved, may result in disallowance of
the time covered by the entries.

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Awarding Attorneys’ Fees and Managing Fee Litigation

14. Clumping—If a number of separate tasks are performed on a
single day, the fee application should disclose the time spent
for each such task (i.e., no “grouping” or “clumping”).
15. Conferences—Professionals should be prepared to explain
time spent in conferences with other professionals or paraprofessionals in the same firm. Failure to justify this time may
result in disallowance of all fees related to such conferences.
16. Multiple Professionals—Professionals should be prepared to
explain the need for more than one professional or paraprofessional from the same firm at the same court hearing,
deposition or meeting. Failure to justify this time may result
in compensation for only the person with the lowest billing
rate.
17. Airplane Travel Time—Airplane travel time is not compensable, but work actually done during a flight is compensable. If significant airplane travel time is expected in a
case, specific guidelines should be obtained for that case.
18. Administrative Tasks—Time spent in addressing, stamping
and stuffing envelopes, filing, photocopying or “supervising”
any of the foregoing is not compensable, whether performed
by a professional, paraprofessional or secretary.
Expenses
19. Firm Practice—All expenses for which reimbursement is
sought must be of the kind, and at the least expensive rate, the
applicant customarily charges nonbankruptcy/insolvency clients.
20. Actual Cost—Is defined as the amount paid to a third party
provider of goods or services without enhancement for handling or other administrative charge.
21. Documentation—Must be retained and made available upon
request for all expenditures in excess of $50.00. Where possible, receipts should be obtained for all expenditures.

Appendix B

129

22. Office Overhead—Not reimbursable. Overhead includes: secretarial time, secretarial overtime, word processing time,
charges for after-hour and weekend air conditioning and
other utilities, and cost of meals or transportation provided to
professionals and staff who work late or on weekends.
23. Word Processing—Not reimbursable.
24. Computerized Research—Actual cost.
25. Paraprofessional Services—May be compensated as a paraprofessional under § 330 but not charged or reimbursed as an
expense.
26. Professional Services—A professional employed under § 327
may not employ, and charge as an expense, another professional (e.g., special litigation counsel employing an expert
witness) unless the employment of the second professional is
approved by the Court prior to the rendering of services.
27. Photocopies (Internal)—Charges must be disclosed on an aggregate and per page basis. If the per page cost exceeds 20
cents, the professional must demonstrate to the satisfaction of
the Court, with data, that the per page cost represents a good
faith estimate of the actual cost of the copies, based upon the
purchase or lease cost of the copy machine and supplies
therefor including the space occupied by the machine, but not
including time spent in operating the machine.
28. Photocopies (Outside)—Actual cost.
29. Postage—Actual cost.
30. Overnight Delivery—Actual cost where shown to be necessary.
31. Messenger Service—Actual cost where shown to be necessary.
An in-house messenger service is reimbursable but the estate
cannot be charged more than the cost of comparable services
available outside the firm.

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Awarding Attorneys’ Fees and Managing Fee Litigation

32. Facsimile Transmission—Actual cost of telephone charges for
outgoing transmissions are reimbursable. Transmissions received are reimbursable on a per page basis. If the per page
cost exceeds 20 cents, the professional must demonstrate to
the satisfaction of the Court, with data, that the per page cost
represents a good faith estimate of the actual cost of the copies, based upon the purchase or lease cost of the facsimile machine and supplies therefor including the space occupied by
the machine, but not including time spent in operating the
machine.
33. Long Distance Telephone—Actual cost.
34. Automotive Transportation—Travel of one hour or less
round-trip is not reimbursable. Travel expense for trips in excess of one hour round-trip is reimbursable in accordance
with the amount allowed by the Internal Revenue Service.
(IRC § 274(d) and the current applicable I.R.B. Announcement. At this date the amount is 31 cents per mile.) Travel by
a professional, paraprofessional or other staff member between his or her residence and principal place of business is
not reimbursable regardless of the day of the week or time of
day.
35. Parking—Actual cost, provided that parking for professionals,
paraprofessionals or other staff member at their principal
place of business is not reimbursable regardless of the day of
the week or time of day.
36. Air Transportation—Air travel is expected to be at regular
coach fare for all flights.
37. Hotels—Due to wide variation in hotel costs in various cities,
it is not possible to establish a single guideline for this type of
expense. All persons will be required to exercise discretion
and prudence in connection with hotel expenditures.
38. Meals-Travel—The cost of lunches while a party is away from
the Bay Area, or in the Bay Area from another city, is not re-

Appendix B

131

imbursable. Reimbursement may be sought for the reasonable
cost of breakfast and dinner while traveling.
39. Meals-Working—Working meals at restaurants or private
clubs are not reimbursable. Reimbursement may be sought
for working meals only where food is catered to the professional’s office in the course of a meeting with clients, such as a
Creditors Committee, for the purpose of allowing the meeting
to continue through a normal meal period.
40. Amenities—Charges for entertainment, alcoholic beverages,
newspapers, dry cleaning, shoe shines, etc. are not reimbursable.
41. Filing Fees—Actual cost.
42. Court Reporter Fees—Actual cost.
43. Witness Fees—Actual cost.
44. Process Service—Actual cost.
45. UCC Searches—Actual cost.
II. Guidelines Applicable to Trustees
Chapter 7 and Chapter 11 trustees must maintain contemporaneous time records in every case. Time records must be maintained
by project categories. At a minimum, project categories should include: (1) Assets Recap (asset analysis and recovery/asset disposition); (2) Investigation of Financial Affairs of the Debtor; (3)
Claims Administration and Objections; and (4) Fee Applications.
Trustees may add additional categories at their discretion. Trustees are also subject to Guidelines 4, 5 (subject to § 326), 10, 12,
13 and 19-45 dealing with expenses.
In cases in which the trustee’s compensation request is anticipated
to be $15,000 or less, the trustee may submit a brief narrative description of the services performed and a statement of the amount
of time spent. In cases in which the final compensation exceeds
$15,000, or where an interim request is made and it is anticipated
that the total compensation requested will exceed $15,000, the
trustee’s application must include time records as well as a narra-

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Awarding Attorneys’ Fees and Managing Fee Litigation

tive description of the services performed and comply with the
guidelines referenced above.
The guidelines regarding trustee time records shall apply only to
cases filed on or after January 1, 1997.

Appendix B

133

This page is left blank intentionally to facilitate printing of
this document double-sided.

Appendix C
Notice of Tentative Ruling on Fees,
U.S. Bankruptcy Court for the
Central District of California
The following is a copy of the form Judge Geraldine Mund (Central District of California Bankruptcy Court) uses for tentative rulings on fee applications.
NOTICE OF TENTATIVE RULING ON FEES
[Seal]
DATE:
TO:
FROM:
RE:

Notice of Tentative Ruling
In re
Case No.

Attached is the tentative ruling on fee applications.
You are to transmit this cover sheet and the tentative rulings to all
other professionals who have applied for fees (if any) and to the office
of the united states trustee.
If you wish to submit on the tentative ruling without appearance,
please send a fax to [name], my judicial assistant, at [phone number]
and notify her of that fact. The tentative ruling will then become the
order of the court. If there is any opposition received to your application (or any party appears to object at the hearing) and they do not

135

also agree that the tentative ruling will be the order of the court, I will
continue this matter to a future date for hearing. If you submit on the
tentative, you are to submit a proposed order to the court with the
correct amounts, hearing date, copies, envelopes, etc.
Geraldine Mund
Bankruptcy Judge

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Awarding Attorneys’ Fees and Managing Fee Litigation

Appendix D
Order Regarding
Chapter 13 Attorney’s Fees,
U.S. Bankruptcy Court for the
Southern District of Texas
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:
PLAINTIFF

§
§
§

CASE NO.

ORDER REGARDING CHAPTER 13 ATTORNEY’S FEES
The Court, sitting en banc, reviewed the fees of debtors’ counsel in
several chapter 13 cases. This Court has jurisdiction of this proceeding
pursuant to 28 U.S.C. §§ 1334 and 157. This is a core proceeding.
The Court is once again struggling to balance compliance with the
Bankruptcy Code’s requirement concerning attorney fee disclosure
and approval, which apply equally to counsel representing a million
dollar corporation and counsel representing a wage earner trying to
make ends meet, with the reality that the wage earner, his counsel, and
creditors bear an economic cost for this compliance disproportionately high compared to the fees sought and the value of the estate. In
the past, this Court analogized the provision of legal services in chapter 13 cases with the production of a standardized commodity with a
fixed cost. Under that view, the Court streamlined the process for

137

chapter 13 attorneys to meet the Bankruptcy Code’s requirements for
fee disclosure and approval by establishing a “benchmark” for fees,
below which the Court did not routinely hold a hearing. Unfortunately, this method has as its unintended consequence the effect of
disguising as efficient and productive, debtor representation which is
in fact poor or simply unresponsive to the needs of the client and the
creditors. Moreover, testimony at the en banc hearing made plain that
reasonable minds differ over what services should be included in a
“standard” chapter 13 case entitling counsel to the “benchmark” fee.
Testimony at the hearing came from attorneys practicing primarily or exclusively consumer bankruptcy law. Counsel varied in experience from 4 years in practice to more than 20 years, with chapter 13
case filings per month of 10 to 40 or more and hourly rates of $200
and up. The testimony generally agreed that 25% to 30% of services
rendered in chapter 13 cases are not ultimately paid due to debtor’s
inability to pay or because counsel did not seek payment believing
that the Court would not compensate the services rendered under the
benchmark fee set for chapter 13 cases. Some attorneys deal with the
benchmark by avoiding client phone calls, avoiding preparing written
responses to motions or objectionable claims, or by screening out
potential clients who have problems that cannot be resolved for
$1,500.
Adhering to the benchmark causes burnout, a frantic pace and
mistakes, and pressures counsel to complete each case within a certain
amount of time at a certain cost regardless of whether a particular client wants more responsiveness and is willing to pay more for it.
Courts in other districts alleviate the pressure on counsel under a
benchmark fee by ending counsel’s case responsibilities at confirmation or by limiting the ability of creditors to object to confirmation.
Evidence was proffered concerning the rise of the consumer price index and the employment cost index since this Court last evaluated the
benchmark fee. Testimony indicated that potential chapter 13 clients
seek the lowest possible fee before hiring an attorney. This market
demand combined with the competition of experienced reliable consumer counsel should help maintain the availability of low cost competent counsel for debtors of limited means. With these factors in
mind and with the goal that competent reliable counsel be available to

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Awarding Attorneys’ Fees and Managing Fee Litigation

serve the ever-increasing numbers of consumer debtors, the Court
adopts a market approach to chapter 13 attorney fees and sets aside
the benchmark adopted previously. The benefit and necessity of counsel services to the debtor in connection with the case will be evaluated
without regard to the benchmark and solely in accordance with the
factors set forth in 11 U.S.C. § 330. The Standing Order for Fee Applications for Debtors’ Counsel in Chapter 13 Cases entered in 1998,
along with its format for Chapter 13 Fee Notice and Chapter 13 Fee
Application (together General Order 1998-4) are superseded by this
order.1
The Court will require fee applications for all fees sought by
debtor’s counsel for services rendered pre-confirmation. The fee application should be filed and a copy delivered to chambers no later
than 5 days prior to confirmation. An order will be entered at confirmation approving the application or setting it for further hearing. To
facilitate fee application review and to reduce the costs associated with
producing a fee application in the format utilized in chapter 11 cases,
counsel may use the truncated format attached to this order as Exhibit
1 in describing the legal services rendered and the actual time expended in the case. Counsel will, nevertheless, need to maintain contemporaneous time records detailing the time expended and hourly
rates charged on each case in the event the Court requires a hearing or
further submission of information in order to determine the reasonableness or necessity of work performed in a particular case. Counsel
will file the fee application with the Court and serve the fee application on debtor, the trustee, the U.S. Trustee and the 5 largest creditors
in the case and file a certificate of service with the Court. Preconfirmation counsel fees will be approved at confirmation of the
debtor’s plan or set for hearing at that time. Post-confirmation services rendered in the case where debtor’s confirmed chapter 13 plan
provides for vesting of the property of the estate in the debtor upon
confirmation, may be paid directly by debtor, otherwise counsel may
file an additional fee application and be paid through debtor’s plan.

1. Similarly, all prior formats for presentation of chapter 13 attorneys fees, such
as the Fact Form and Fee App are superseded by this order.

Appendix D

139

Counsel shall also file a timely Rule 2016(b) statement detailing
the compensation paid or agreed to be paid within one year before
date of filing petition, the source of the compensation, and any
agreement to share the compensation and shall update such information with amended Rule 2016(b) statements throughout the case as
further fees are incurred until the case is closed.

140

Awarding Attorneys’ Fees and Managing Fee Litigation

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
IN RE:

*
*
*

CASE NO.

CHAPTER 13 FEE APPLICATION
Counsel of Debtor in this case requests allowance of compensation and reimbursement of expenses for the time expended, hourly rates, and expenses
incurred shown below. Counsel received no property from the debtor or in
connection with the case except $ ________ pre-petition which was expended in the manner set out below. Counsel seeks payment under the plan
of $ _______.
Type of Case:

Business Case _____ or Consumer Case _____ (check one)
Activity

Attorney Time
(approximate)

Paralegal Time
(approximate)

Prepetition Client Consultations
Postpetition Client Consultations
Schedules, Plan
Amendments
341 (Preparation and Attendance)
Creditor Contact
Proof of Claim Review
Motion(s) to Dismiss:
# of Motions to Dismiss: 1 2 3 4 5 (circle
one)
Contested Motions:
# of Contested Motions: 1 2 3 4 5 (circle
one)
Specify Type:

Objections to Confirmation:
# of Objections to Confirmation: 1 2 3 4 5
(circle one)

Appendix D

141

Activity

Attorney Time
(approximate)

Paralegal Time
(approximate)

Est. Hours

Rate x Hours

Adversary Proceeding(s):
# of Adversary Proceedings: 1 2 3 4 5
(circle one)
Specify Type:

Claims Objections/Valuation:
# of Claims Object./Valuations: 1 2 3 4 5
(circle one)
Specify Type:

Confirmation Hearings:
# of Confirmation Hearings: 1 2 3 4 5
(circle one)
Operating Reports
Name of Attorney/Paralegal

Hourly Rate

1.
2.
Expenses

1.
2.
Date:
Counsel Name
Counsel Address

142

Awarding Attorneys’ Fees and Managing Fee Litigation

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

IN RE:

DEBTOR(S)

§
§
§
§
§

CASE NO.

CERTIFICATE OF SERVICE
This is to certify that on the ______ day of ______, 20__, a true
and correct copy of the foregoing Chapter 13 Fee Application has
been mailed to the following parties by first class mail:
Debtors
Trustee
U.S. Trustee
Five Largest Creditors

Date:
Counsel Name
Counsel Address

Appendix D

143

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

IN RE:

*
*
*
*
*
*
*

DEBTOR and
JOINT DEBTOR
DEBTOR(S)

CASE NO.
XX-XXXXX-HX-13

Chapter 13

ORDER FOR COMPENSATION
The Court, having considered the Chapter 13 Fee Application of
Debtor’s attorney, [name of debtor’s attorney ], has concluded that the
Application sets forth a sufficient factual basis in accordance with the
criteria set forth in the matter of [case name and date], to warrant
granting the relief sought. It is therefore
ORDERED that, [name of debtor’s attorney], be awarded an allowance of attorney’s fees in the amount of $
, and expenses of
$
as an administrative expense.
SIGNED this

day of

, 20__

______________________________________
UNITED STATES BANKRUPTCY JUDGE

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Awarding Attorneys’ Fees and Managing Fee Litigation

Table of Cases
Abbott, Puller & Myers v. Peyser, 124 F.2d 524 (D.C. Cir. 1941), n.320
Abshire v. Walls, 830 F.2d 1277 (4th Cir. 1987), n.172
Ackerly Communications v. Somerville, 901 F.2d 170 (1st Cir. 1990), nn.117,
129, 132
Ackley v. Western Conference of Teamsters, 958 F.2d 1463 (9th Cir. 1992),
nn.443–44
ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999), nn.117, 302
Agent Orange Product Liability Litigation, In re, 818 F.2d 226 (2d Cir. 1987),
nn.117, 265, 389, 415
Agent Orange Product Liability Litigation, In re, 611 F. Supp. 1296 (E.D.N.Y.
1985), n.389
Aguinaga v. United Food & Commercial Workers International Union, 993
F.2d 1480 (10th Cir. 1993), n.454
Air Crash Disaster at Florida Everglades, In re, 549 F.2d 1006 (5th Cir. 1977),
n.359
Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), nn.137, 160, 228, 230,
234
Alizadeh v. Safeway, 910 F.2d 234 (5th Cir. 1990), n.244
Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), nn.1,
6–7, 340, 343, 426–27, 450
American Ass’n of Marriage v. Brown, 593 F.2d 1365 (D.C. Cir. 1979), n.453
American Booksellers Ass’n v. Virginia, 802 F.2d 691 (4th Cir. 1986), n.89
American Council of the Blind v. Romer, 962 F.2d 1501 (10th Cir. 1992),
n.93
American Federation of Government Employees v. FLRA, 944 F.2d 922 (D.C.
Cir. 1991), n.115
Anderson v. Procter & Gamble, 220 F.3d 449 (6th Cir. 2000), n.38
Andrews v. Employees’ Retirement Plan, 938 F.2d 1245 (11th Cir. 1991),
n.291
Andrews v. United States, 122 F.3d 1367 (11th Cir. 1997), nn.181, 206

145

Art Janpol Volkswagen v. Fiat Motors of North America, 767 F.2d 690 (10th
Cir. 1985), n.290
Ashley v. Atlantic Richfield, 794 F.2d 128 (3d Cir. 1986), n.97
Bailey v. Heckler, 777 F.2d 1167 (6th Cir. 1985), n.248
Bailey v. Meister Brau, 535 F.2d 982 (7th Cir. 1976), n.445
Bandes v. Harlow & Jones, 852 F.2d 661 (2d Cir. 1988), nn.307, 316
Bank of New England, In re, 134 B.R. 450 (Bankr. E.D. Mass. 1991), n.502
Bank One Shareholders Class Actions, In re, 96 F. Supp.2d 780 (N.D. Ill.
2000), n.535
BankAtlantic Inc. v. Blythe Eastman Paine Webber, 12 F.3d 1045 (11th Cir.
1994), n.238
Barlow-Gresham Union High School v. Mitchell, 940 F.2d 1280 (9th Cir.
1991), n.87
Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992), n.116
Bebchick v. Washington Metropolitan Area Transit Commission, 805 F.2d
396 (D.C. Cir. 1986), n.394
Begley v. HHS, 966 F.2d 196 (6th Cir. 1992), n.165
Bell v. United Princeton Properties, 884 F.2d 713 (3d Cir. 1989), nn.270, 297
Benda v. Grand Lodge, 584 F.2d 308 (9th Cir. 1978), n.441
Benitez v. Collazo-Collazo, 888 F.2d 930 (1st Cir. 1989), n.76
Bennett v. Yoshina, 259 F.3d 1097 (9th Cir. 2001), n.33
Berger v. Compaq Computer Corp., 257 F.3d 475 (5th Cir. 2001), nn.473,
488
Bigby v. Chicago, 927 F.2d 1426 (7th Cir. 1991), n.81
Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299 (9th
Cir. 1979), n.455
Bishop v. Committee on Professional Ethics, 686 F.2d 1278 (8th Cir. 1982),
n.26
Bittner v. Sadoff & Rudoy Industries, 728 F.2d 820 (7th Cir. 1984), n.292
Black Grievance Committee v. Philadelphia Electric Co., 802 F.2d 648 (3d
Cir. 1986), n.165
Black v. Ryder, 970 F.2d 1461 (6th Cir. 1992), n.451
Blanchard v. Bergeron, 489 U.S. 87 (1989), nn.84, 109, 350
Blazy v. Tenet, 194 F.3d 90 (D.C. Cir. 1999), n.66
Bliss v. Holmes, 867 F.2d 256 (6th Cir. 1988), n.440
Blum v. Stenson, 465 U.S. 886 (1984), nn.114–15, 120, 163, 220, 223–26,
362–63
Boeing Co. v. Van Gemert, 444 U.S. 472 (1980), nn.310, 344, 346, 401, 413

146

Awarding Attorneys’ Fees and Managing Fee Litigation

Bolar Pharmaceuticals v. Gackenbach, 800 F. Supp. 1091 (E.D.N.Y. 1992),
n.395
Bowling v. Pfizer, Inc., 102 F.3d 777 (6th Cir. 1996), n.397
B.P. North American Trading, Inc. v. Vessel Panamax Nova, 784 F.2d 975
(9th Cir. 1986), n.321
Bradley v. School Board of Richmond, 416 U.S. 696 (1974), nn.41, 43, 85
Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974), n.5
Brennan v. United Steelworkers of America, 554 F.2d 586 (3d Cir. 1977),
nn.427–28, 432, 450
Brown v. General Motors, 722 F.2d 1009 (2d Cir. 1983), n.75
Brown v. Phillips Petroleum, 838 F.2d 451 (10th Cir. 1988), nn.366, 384, 412,
416
Brown v. Stackler, 612 F.2d 1057 (7th Cir. 1980), n.141
Broyles v. Director, 974 F.2d 508 (4th Cir. 1992), nn.132, 271
Bryant Woods Inn, Inc. v. Howard County, 124 F.3d 597 (4th Cir. 1997),
n.56
Brzonkala v. Morrison, 272 F.3d 688 (4th Cir. 2001), n.343
Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 532 U.S. 598 (2001), nn.29–32
Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), nn.14, 278–79
Buffington v. Baltimore County, 913 F.2d 113 (4th Cir. 1990), n.119
Burka v. United States Department of Health & Human Services, 142 F.3d
1286 (D.C. Cir. 1998), nn.64, 67
Burroughs v. Board of Trustees, 542 F.2d 1128 (9th Cir. 1976), n.448
Bush, In re, 131 B.R. 364 (Bankr. W.D. Mich. 1991), n.502
Busy Beaver Building Centers, In re, 19 F.3d 833 (3d Cir. 1994), n.505
Cabrales v. County of Los Angeles, 935 F.2d 1050 (9th Cir. 1991), nn.148,
182
California Micro Devices Securities Litigation, In re, 168 F.R.D. 257 (N.D.
Cal. 1996), n.528
Camden I Condominium Ass’n v. Dunkle, 946 F.2d 768 (11th Cir. 1991),
nn.365, 385–86, 410
Cange v. Stotler & Co., 913 F.2d 1204 (7th Cir. 1990), n.205
Cann v. Carpenters’ Pension Trust Fund for Northern California, 989 F.2d
313 (9th Cir. 1993), nn.38, 241
Cantwell v. San Mateo, 631 F.2d 631 (9th Cir. 1980), nn.448, 463
Carey v. Crescenzi, 923 F.2d 18 (2d Cir. 1991), n.248
Case v. Unified School District No. 233, 157 F.3d 1243 (10th Cir. 1998),
nn.126, 140, 258

Table of Cases

147

Catullo v. Metzner, 834 F.2d 1075 (1st Cir. 1987), nn.331, 332
Cavanaugh, In re, 306 F.3d 726 (9th Cir. 2002), nn.476, 488, 490–91, 493–95
Cendant Corp. Litigation, In re, 264 F.3d 201 (3d Cir. 2001), nn.475, 477,
480, 482–87, 496–99
Cendant Corp. Litigation, In re, 182 F.R.D. 144 (D.N.J. 1998), nn.478–79,
535
Cendant Corp. Prides Litigation, In re, 243 F.3d 722 (3d Cir. 2001), nn.383,
471
Center for Biological Diversity v. Norton, 262 F.3d 1077 (10th Cir. 2001),
n.34
Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885), nn.2, 305, 396
Charves v. Western Union, 711 F.2d 462 (1st Cir. 1983), n.244
Chemicals Manufacturers Ass’n v. EPA, 885 F.2d 1276 (5th Cir. 1989), n.286
Chicago, Milwaukee, St. Paul & Pacific Railroad, In re, 840 F.2d 1308 (7th
Cir. 1988), n.332
Chin, In re, 31 B.R. 314 (Bankr. S.D.N.Y. 1984), n.44
Christensen v. Kiewit-Murdock Investment Corp., 815 F.2d 206 (2d Cir.
1987), n.314
Church of Scientology v. United States Postal Service, 700 F.2d 486 (9th Cir.
1983), n.252
City of Klawock v. Gustafson, 585 F.2d 428 (9th Cir. 1978), nn.334, 337–38
Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir. 1986), n.183
Clarke v. Frank, 960 F.2d 1146 (2d Cir. 1992), n.131
Coalition for Basic Human Needs v. King, 691 F.2d 597 (1st Cir. 1982), n.26
Coalition for Clean Air v. Southern California Edison, 971 F.2d 219 (9th Cir.
1992), n.298
Cole v. Wodziak, 169 F.3d 486 (7th Cir. 1999), nn.110, 198, 215
Columbus Mills v. Freeland, 918 F.2d 1575 (11th Cir. 1990), n.164
Comdisco Securities Litigation, In re, 141 F. Supp.2d 951 (N.D. Ill. 2001),
n.535
Concept Clubs, In re, 125 B.R. 634 (Bankr. D. Utah 1991), n.502
Connolly v. National School Bus Service, Inc., 177 F.3d 593 (7th Cir. 1999),
n.219
Continental Illinois Securities Litigation, In re, 962 F.2d 566 (7th Cir. 1992),
nn.263, 269, 367, 372–73, 378, 400, 517–18
Continental Illinois Securities Litigation, In re, 572 F. Supp. 931 (N.D. Ill.
1983), nn.544–45
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972), n.5
Cooper v. Utah, 894 F.2d 1169 (10th Cir. 1990), nn.87, 217–18

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Awarding Attorneys’ Fees and Managing Fee Litigation

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980), nn.127–28, 264, 405,
407
Corder v. Brown, 25 F.3d 833 (9th Cir. 1994), n.239
Coutin v. Young & Rubicam Puerto Rico, Inc., 124 F.3d 331 (1st Cir. 1997),
nn.110, 178, 180, 296
Cowan v. Prudential Insurance, 935 F.2d 522 (2d Cir. 1991), n.202
Craik v. Minnesota State University Board, 738 F.2d 348 (8th Cir. 1984),
n.124
Crane Co. v. American Standard, 603 F.2d 244 (2d Cir. 1979), n.433
Crane v. Texas, 766 F.2d 193 (5th Cir. 1985), n.149
Cranston v. Hardin, 504 F.2d 566 (2d Cir. 1974), n.336
Crowder v. Housing Authority of Atlanta, 908 F.2d 843 (11th Cir. 1990), n.92
Cullens v. Georgia Department of Transportation, 29 F.3d 1489 (11th Cir.
1994), nn.110, 206
Cunningham v. City of McKeesport, 807 F.2d 49 (3d Cir. 1986), nn.204, 257
Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), nn.113, 270
Cunningham v. Los Angeles, 859 F.2d 705 (9th Cir. 1988), n.216
Curran v. Department of Treasury, 805 F.2d 1406 (9th Cir. 1986), n.115
CVC, Inc., In re, 120 B.R. 874 (Bankr. N.D. Ohio 1990), n.502
Daggett v. Kimmelman, 811 F.2d 793 (3d Cir. 1987), nn.124, 267
Dague v. City of Burlington, 976 F.2d 801 (2d Cir. 1992), n.149
Dahlem v. Board of Education, 901 F.2d 1508 (10th Cir. 1990), nn.26, 95
Daly v. Hill, 790 F.2d 1071 (4th Cir. 1986), n.108
Davis County Solid Waste Management v. EPA, 169 F.3d 755 (D.C. Cir.
1999), n.117
Davis v. Macon County, 927 F.2d 1473 (9th Cir. 1991), nn.106, 117
Davis v. San Francisco, 976 F.2d 1536 (9th Cir. 1992), nn.106, 118, 124, 146
Davis v. Southeastern Pennsylvania Transportation Authority, 924 F.2d 51
(3d Cir. 1991), nn.135, 204
Dejesus v. Banco Popular de Puerto Rico, 951 F.2d 3 (1st Cir. 1991), nn.119,
248
Demier v. Gondles, 676 F.2d 92 (4th Cir. 1982), n.145
Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980), n.153
Detroit v. Grinnell Corp., 495 F.2d 448 (2d Cir. 1974), n.407
Devine v. National Treasury Employees Union, 805 F.2d 384 (Fed. Cir.
1986), n.115
Dexter v. Kirschner, 984 F.2d 979 (9th Cir. 1992), n.24

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Doe v. Board of Education of Baltimore County, 165 F.3d 260 (4th Cir.
1998), n.64
Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982), n.25
Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980), n.26
Domegan v. Ponte, 972 F.2d 401 (1st Cir. 1992), nn.158, 205, 208, 297
Dominic v. Consolidated Edison Co. of New York, 822 F.2d 1249 (2d Cir.
1987), n.172
Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972), n.5
Donnell v. United States, 682 F.2d 240 (D.C. Cir. 1982), n.59
Donovan, In re, 877 F.2d 982 (D.C. Cir. 1989), n.158
Donovan v. CSEA Local Union 1000, 784 F.2d 98 (2d Cir. 1986), nn.379, 380,
428, 468, 469
Donovan v. Local Union 70, 661 F.2d 1199 (9th Cir. 1981), n.428
Dorfman v. First Boston Corp., 70 F.R.D. 366 (E.D. Pa. 1976), n.322
Dowdell v. Apopka, Fla., 698 F.2d 1181 (11th Cir. 1983), nn.144, 147
Durrett v. Jenkins Brickyard, 678 F.2d 911 (11th Cir. 1982), n.244
Eastwood v. National Enquirer, 123 F.3d 1249 (9th Cir. 1997), n.16
Eaves v. County of Cape May, 239 F.3d 527 (3d Cir. 2001), n.238
Echols v. Parker, 909 F.2d 795 (5th Cir. 1990), n.291
Edwards v. Heckler, 789 F.2d 659 (9th Cir. 1985), n.448
El Club del Barrio, Inc. v. United Community Corp., 735 F.2d 98 (3d Cir.
1984), nn.91, 97, 101
Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (10th Cir. 1999),
n.97
Elmore v. Shuler, 787 F.2d 601 (D.C. Cir. 1986), n.97
Emmanuel v. Omaha Carpenters District Council, 560 F.2d 382 (8th Cir.
1977), n.455
Erkins v. Bryan, 785 F.2d 1538 (11th Cir. 1986), nn.435, 456
Evans v. City of Evanston, 941 F.2d 473 (7th Cir. 1991), nn.269, 350, 377,
511–13
Evans v. Jeff D., 475 U.S. 717 (1986), nn.73, 98, 100
Exchange National Bank of Chicago v. Daniels, 763 F.2d 286 (7th Cir. 1985),
n.290
E Z Feed Cube, In re, 123 B.R. 69 (Bankr. D. Or. 1991), n.502
Fair Housing Council of Greater Washington v. Landow, 999 F.2d 92 (4th
Cir. 1993), n.143
Farmington Dowel Products v. Forster Manufacturing Co., 421 F.2d 61 (1st
Cir. 1969), n.286

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Awarding Attorneys’ Fees and Managing Fee Litigation

Farrar v. Hobby, 506 U.S. 103 (1992), nn.22–23, 86, 189–90, 191–94, 205, 210
Fase v. Seafarers Welfare & Pension Plan, 589 F.2d 112 (2d Cir. 1978),
nn.339, 341
Feher v. Department of Labor & Industrial Relations, 561 F. Supp. 757 (D.
Haw. 1983), n.45
Feick v. Fleener, 653 F.2d 69 (2d Cir. 1981), n.324
Fidelity Bancorporation Securities Litigation, In re, 750 F. Supp. 160 (D.N.J.
1990), n.388
Figueroa–Torres v. Todelo-Davilla, 232 F.3d 270 (1st Cir. 2000), n.173
Finch v. City of Vernon, 877 F.2d 1497 (11th Cir. 1989), nn.39, 149
Fine Paper Antitrust Litigation, In re, 751 F.2d 562 (3d Cir. 1984), nn.266,
352, 372, 373, 379, 406, 411
Fleet v. United States Consumer Council, Inc., No. CIV.A.89-7527, 1990 WL
18926 (E.D. Pa. Feb. 23, 1990), n.504
Fleming v. Ayers & Associates, 948 F.2d 993 (6th Cir. 1991), nn.181, 258
Fleming v. County of Kane, 898 F.2d 553 (7th Cir. 1990), n.238
Florida v. Dunne, 915 F.2d 542 (9th Cir. 1990), nn.368, 369, 391, 392
Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir. 1994), n.395
Foley v. City of Lowell, 948 F.2d 10 (1st Cir. 1991), n.261
Fort v. Roadway Express, 746 F.2d 744 (11th Cir. 1984), n.291
Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 886 F.2d 1545 (9th Cir.
1989), nn.161, 258
Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 765 F.2d 1278 (5th Cir. 1985), n.25
Friend v. Kolodzieczak, 72 F.3d 1386 (9th Cir. 1995), n.238
Gagne v. Town of Enfield, 734 F.2d 902 (2d Cir. 1984), n.39
Gary Fairbanks, Inc., In re, 111 B.R. 809 (N.D. Iowa 1990), n.502
Gates v. Central Teamsters Pension Fund, 788 F.2d 1341 (8th Cir. 1986),
n.291
Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992), nn.117, 232, 265, 268
Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001),
n.209
Gekas v. Attorney Registration & Disciplinary Commission, 793 F.2d 846
(7th Cir. 1986), n.257
Gemstar-TV Guide International, Inc. Securities Litigation, In re, 209 F.R.D.
447 (C.D. Cal. 2002), n.496
General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, In re, 55 F.3d 768 (3d Cir. 1995), n.395
Gilbert v. Little Rock, Arkansas, 867 F.2d 1063 (8th Cir. 1989), n.181

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Gillett Holdings, In re, 137 B.R. 462 (Bankr. D. Colo. 1992), n.502
Gisbrecht v. Barnhart, 535 U.S. 789 (2002), n.108
Glass v. HHS, 822 F.2d 19 (6th Cir. 1987), n.260
Glover v. Johnson, 934 F.2d 703 (6th Cir. 1991), nn.145, 164
Gold Seal Products, In re, 128 B.R. 822 (Bankr. N.D. Ala. 1991), n.502
Goldberger v. Integrated Resources, Inc., 209 F.3d 43 (2d Cir. 2000), nn.366,
383
Goodwin v. Metts, 973 F.2d 378 (4th Cir. 1992), n.133
Goos v. National Ass’n of Realtors, 68 F.3d 1380 (D.C. Cir. 1995), n.180
Grace v. Burger, 763 F.2d 457 (D.C. Cir. 1985), nn.343, 449
Granada Investments v. DWG Corp., 962 F.2d 1203 (6th Cir. 1992), n.399
Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986), n.26
Grant v. Martinez, 973 F.2d 96 (2d Cir. 1992), nn.152, 180, 232
Great Sweats, Inc., In re, 113 B.R. 240 (Bankr. E.D. Va. 1990), n.502
Greater L.A. Council on Deafness v. Community Television of Southern
California, 813 F.2d 217 (9th Cir. 1987), n.136
Grendel’s Den v. Larkin, 749 F.2d 945 (1st Cir. 1984), nn.133, 159
Griffin v. Steeltek, Inc., 261 F.3d 1026 (10th Cir. 2001), n.33
Grove v. Mead School District, 753 F.2d 1528 (9th Cir. 1985), n.57
Guam Society of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (9th Cir.
1996), n.230
Guidry v. International Union of Operating Engineers, 882 F.2d 929 (6th Cir.
1989), n.451
Gulfstream III Associates, Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414
(3d Cir. 1993), n.151
Gunter v. Ridgewood Energy Corp., 223 F.3d 190 (3d Cir. 2000), nn.364, 412,
498
Gusman v. Unisys, 986 F.2d 1146 (7th Cir. 1993), n.118
Hall v. Cole, 412 U.S. 1 (1973), nn.423–25
Hamilton v. Daley, 777 F.2d 1207 (7th Cir. 1985), n.246
Hanrahan v. Hampton, 446 U.S. 754 (1980), n.20
Harman v. Lyphomed, 945 F.2d 969 (7th Cir. 1991), n.366
Haroco, Inc. v. American National Bank & Trust Co., 38 F.3d 1429 (7th Cir.
1994), n.106
Harper v. Better Business Service, 768 F. Supp. 817 (N.D. Ga. 1991), n.115
Harris v. Pirch, 677 F.2d 681 (8th Cir. 1982), n.24
Hart v. Bourque, 798 F.2d 519 (1st Cir. 1986), n.136
Hatrock v. Jones & Co., 750 F.2d 767 (9th Cir. 1984), n.273
Haywood v. Ball, 634 F.2d 740 (4th Cir. 1980), n.39

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Awarding Attorneys’ Fees and Managing Fee Litigation

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991), n.221
Hensley v. Eckerhart, 461 U.S. 424 (1983), nn.9, 10, 12, 48, 84, 107, 108,
127–28, 154, 167–70, 178, 247, 295
Henson v. Columbus Bank & Trust Co., 651 F.2d 320 (5th Cir. 1981), n.254
Hepburn, In re, 84 B.R. 855 (S.D. Fla. 1988), n.44
Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981), n.250
Herrington v. County of Sonoma, 883 F.2d 739 (9th Cir. 1989), n.180
Hewitt v. Helms, 482 U.S. 755 (1987), n.19
Hewitt v. Joyner, 940 F.2d 1561 (9th Cir. 1991), n.40
Hill, In re, 775 F.2d 1037 (9th Cir. 1985), nn.343, 449
Holbrook v. Pitt, 748 F.2d 1168 (7th Cir. 1984), n.314
Hollowell v. Gravett, 723 F. Supp. 107 (E.D. Ark. 1989), n.227
Home Savings Bank v. Gillam, 952 F.2d 1152 (9th Cir. 1991), n.446
Homeward Bound, Inc. v. Hissom Memorial Hospital, 963 F.2d 1352 (10th
Cir. 1992), n.298
Howard v. Phelps, 443 F. Supp. 374 (E.D. La. 1978), n.45
Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992), n.21
Hyman Construction Co. v. Brooks, 963 F.2d 1532 (D.C. Cir. 1992), n.176
Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989),
n.80
Independent School District v. Digre, 893 F.2d 987 (8th Cir. 1990), n.151
Inslaw, Inc., In re, 106 B.R. 331 (Bankr. D.D.C. 1989), n.502
International Nickel Co. v. Trammel Crow Distribution Corp., 803 F.2d 150
(5th Cir. 1986), n.214
Iqbal v. Golf Course Superintendents, 900 F.2d 227 (10th Cir. 1990), n.149
Islamic Center of Mississippi v. Starkville, Mississippi, 876 F.2d 465 (5th Cir.
1989), n.113
Jackson v. Crews, 873 F.2d 1105 (8th Cir. 1989), n.180
Jaffee v. Redmond, 142 F.3d 409 (7th Cir. 1998), nn.180, 298
Jane L. v. Bangerter, 61 F.3d 1505 (10th Cir. 1995), n.180
Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988), n.161
Jenkins v. Missouri, 967 F.2d 1248 (8th Cir. 1992), n.82
Jenkins v. Missouri, 931 F.2d 1273 (8th Cir. 1991), n.238
Jensen’s Interiors, In re, 132 B.R. 105 (E.D. Pa. 1991), n.504
John v. Barron, 897 F.2d 1387 (7th Cir. 1990), n.292
Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1974), nn.108,
187, 244
Johnson v. HUD, 939 F.2d 586 (8th Cir. 1991), n.446

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Johnson v. Lafayette Fire Fighters Ass’n Local 471, 51 F.3d 726 (7th Cir.
1995), nn.16, 195
Johnson v. New York City Transit Authority, 823 F.2d 31 (2d Cir. 1987),
n.258
Johnson v. Orr, 739 F. Supp. 945 (D.N.J. 1988), n.115
Johnson v. Rodriguez, 260 F.3d 493 (5th Cir. 2001), n.33
Johnston v. Comerica Mortgage Co., 83 F.3d 241 (8th Cir. 1996), n.366
Jordan v. Heckler, 744 F.2d 1397 (10th Cir. 1984), nn.343, 449
Junker v. Cory, 650 F.2d 1349 (5th Cir. 1981), nn.329–30
Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir. 1970), n.439
Kargman v. Sullivan, 589 F.2d 63 (1st Cir. 1978), n.307
Kay v. Ehrler, 499 U.S. 432 (1991), nn.62, 63
Kean v. Stone, 966 F.2d 119 (3d Cir. 1992), n.115
Keely v. City of Leesville, 897 F.2d 172 (5th Cir. 1990), n.39
Kelley v. Metropolitan County Board of Education, 773 F.2d 677 (6th Cir.
1985), nn.113, 284, 286
Kentucky v. Graham, 473 U.S. 159 (1985), n.79
Kerr v. Screen Extras Guild, 526 F.2d 67 (9th Cir. 1975), n.108
King v. McCord, 621 F.2d 205 (5th Cir. 1980), n.255
Kinney v. International Brotherhood of Electrical Workers, 939 F.2d 690 (9th
Cir. 1991), nn.379, 380, 466, 468, 469
Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir. 1999), n.66
Kopet v. Esquire Realty, 523 F.2d 1005 (2d Cir. 1975), n.325
Koppel v. Wien, 743 F.2d 129 (2d Cir. 1984), n.326
Kraeger v. Solomon & Flanagan, P.A., 775 F.2d 1541 (11th Cir. 1985),
nn.108, 244
Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985), n.24
Lafferty v. Humphrey, 248 F.2d 82 (D.C. Cir. 1957), n.323
Lattimore v. Oman Construction, 868 F.2d 437 (11th Cir. 1989), nn.234, 286
Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991), n.88
Leffler v. Meer, 936 F.2d 981 (7th Cir. 1991), n.245
Leroy v. City of Houston, 906 F.2d 1068 (5th Cir. 1990), n.123
Lewis v. Anderson, 692 F.2d 1267 (9th Cir. 1982), nn.438–39
Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), n.142
Libby v. Illinois High School Ass’n, 921 F.2d 96 (7th Cir. 1990), n.27
Lightfoot v. Walker, 826 F.2d 516 (7th Cir. 1987), n.159
Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp.,
540 F.2d 102 (3d Cir. 1976), nn.156, 307, 361, 397, 506

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Linquist v. Bowen, 839 F.2d 1321 (8th Cir. 1988), n.449
Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992), nn.103, 138, 158, 171,
229–300
Loggerhead Turtle v. County Council, 307 F.3d 1318 (11th Cir. 2002), n.34
Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319 (5th Cir. 1995),
nn.238, 301
Louisville Black Police Officers Organization v. Louisville, 700 F.2d 268 (6th
Cir. 1983), n.132
Lowrance v. Hacker, 966 F.2d 1153 (7th Cir. 1992), n.77
Lucent Technologies, Inc., Securities Litigation, In re, 194 F.R.D. 137 (D.N.J.
2000), n.487
Lucero v. Trinidad, 815 F.2d 1384 (10th Cir. 1987), nn.163, 165
Macdissi v. Valmont Industries, 856 F.2d 1054 (8th Cir. 1988), n.162
Maher v. Gagne, 448 U.S. 122 (1980), n.28
Maier Brewing Co. v. Fleischmann Distilling Corp., 359 F.2d 156 (9th Cir.
1966), n.335
Maine v. Thiboutot, 448 U.S. 1 (1980), n.36
Maldonado v. Lehman, 811 F.2d 1341 (9th Cir. 1987), n.118
Marek v. Chesny, 475 U.S. 717 (1986), nn.211, 286
Mares v. Credit Bureau of Raton, 801 F.2d 1197 (10th Cir. 1986), n.262
Maristuen v. National States Insurance Co., 57 F.3d 673 (8th Cir. 1995),
n.289
Markham v. International Ass’n of Bridge, Structural & Ornamental Iron
Workers, 901 F.2d 1022 (11th Cir. 1990), nn.441–42
Marshall v. United Steelworkers, 666 F.2d 845 (3d Cir. 1981), nn.428, 458
Mateyko v. Felix, 924 F.2d 824 (9th Cir. 1990), n.39
Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988), n.238
McCann v. Coughlin, 698 F.2d 112 (2d Cir. 1983), n.159
McDonald v. Doe, 748 F.2d 1055 (5th Cir. 1984), n.39
McDonald v. McCarthy, 966 F.2d 112 (3d Cir. 1992), nn.284, 286, 290
McDonald v. Oliver, 525 F.2d 1217 (5th Cir. 1976), n.455
McKenzie v. Kennickell, 669 F. Supp. 529 (D.D.C. 1987), n.43
McManama v. Lukhard, 616 F.2d 727 (4th Cir. 1980), n.149
McQuiston v. Marsh, 707 F.2d 1082 (9th Cir. 1983), nn.332, 343
Meese, In re, 907 F.2d 1192 (D.C. Cir. 1990), n.124
Miami Optical Export, Inc., In re, 101 B.R. 383 (Bankr. S.D. Fla. 1989), n.502
MidAmerica Federal Savings & Loan v. Shearson/American, 962 F.2d 1470
(10th Cir. 1992), nn.238, 273

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Miele v. New York State Teamsters Conference Pension & Retirement Fund,
831 F.2d 407 (2d Cir. 1987), n.165
Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998), nn.186–88, 207
Miller v. Los Angeles, 827 F.2d 617 (9th Cir. 1987), n.244
Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983), n.57
Miller-Wohl Co. v. Commissioner of Labor & Industry, State of Montana,
694 F.2d 203 (9th Cir. 1982), n.70
Milton v. Des Moines, Iowa, 47 F.3d 944 (8th Cir. 1995), n.199
Milwe v. Cavuoto, 653 F.2d 80 (2d Cir. 1981), n.40
Missouri v. Jenkins, 491 U.S. 274 (1989), nn.102–03, 112, 232
Mokhiber ex rel. Ford Motor Co. v. Cohn, 783 F.2d 26 (2d Cir. 1986), n.44
Montgomery & Associates, Inc. v. Commodity Futures Trading Commission,
816 F.2d 783 (D.C. Cir. 1987), n.285
Moore v. Matthews, 682 F.2d 830 (9th Cir. 1982), n.119
Morales v. City of San Rafael, 96 F.3d 359 (9th Cir. 1996), nn.108, 110, 197
Morales v. Turman, 820 F.2d 728 (5th Cir. 1987), n.69
Morgan v. Union Metal, 757 F.2d 792 (6th Cir. 1985), n.291
Muckleshoot Tribe v. Puget Sound Power & Light, 875 F.2d 695 (9th Cir.
1989), n.97
Munson v. Friske, 754 F.2d 683 (7th Cir. 1985), n.244
Murphy v. International Union of Operating Engineers, 774 F.2d 114 (6th
Cir. 1985), n.457
Murphy v. Reliance Standard Life Insurance Co., 247 F.3d 1313 (11th Cir.
2001), n.241
NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), n.165
National Ass’n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982), nn.248, 251
National Gypsum Co., In re, 123 F.3d 861 (5th Cir. 1997), n.501
National Treasury Employees Union v. Nixon, 521 F.2d 317 (D.C. Cir. 1975),
n.315
Natural Resources Defense Council v. EPA, 484 F.2d 1331 (1st Cir. 1973), n.5
Nensel v. Peoples Heritage Financial Group, Inc., 815 F. Supp. 26 (D. Me.
1993), n.395
New York Gaslight Club v. Carey, 447 U.S. 54 (1980), nn.37, 85
Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968), nn.84–85
Nicodemus v. Chrysler Corp., 445 F. Supp. 559 (N.D. Ohio 1977), n.45
Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, In re, 982 F.2d 603 (1st Cir. 1992), nn.395, 408, 413
Nisby v. Court of Jefferson County, 798 F.2d 134 (5th Cir. 1986), n.108

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Nolte v. Hudson Navigation Co., 47 F.2d 166 (2d Cir. 1931), n.322
Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir.
1988), nn.150, 155, 164–65, 171, 233, 248, 256, 258–59
North Carolina Department of Transportation v. Crest Street Community
Council, Inc., 479 U.S. 6 (1986), n.37
Northeast Women’s Center v. McMonagle, 889 F.2d 466 (3d Cir. 1989),
nn.39, 172, 204
Northern Plains Resource Council v. EPA, 670 F.2d 847 (9th Cir. 1982),
n.284
NRG Resources, Inc., In re, 64 B.R. 643 (W.D. La. 1986), n.503
Oberreich, In re, 109 B.R. 936 (Bankr. D. Wis. 1990), n.502
Ohio-Sealy Mattress, In re, 776 F.2d 646 (7th Cir. 1985), n.263
Oldfield v. Athletic Congress, 779 F.2d 505 (9th Cir. 1985), n.444
Olson, In re, 884 F.2d 1415 (D.C. Cir. 1989), nn.134, 139, 159
Oracle Securities Litigation, In re, 131 F.R.D. 688 (N.D. Cal. 1990), nn.474,
524, 526
Oracle Securities Litigation, In re, 132 F.R.D. 538 (N.D. Cal. 1990), nn.474,
527
Orchano v. Advanced Recovery, Inc., 107 F.3d 94 (2d Cir. 1997), n.110
Oster v. Bowen, 682 F. Supp. 853 (E.D. Va. 1988), n.446
Overseas Development Disc Corp. v. Sangamo Construction Co., 840 F.2d
1319 (7th Cir. 1988), n.413
Pacific Enterprises Securities Litigation, In re, 47 F.3d 373 (9th Cir. 1995),
n.382
Palmer v. Chicago, 806 F.2d 1316 (7th Cir. 1986), n.25
Paris v. Metropolitan Life Insurance, 94 F. Supp. 792 (S.D.N.Y. 1947), n.327
Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268 (9th Cir. 1989), n.368
Pawlak v. Greenawalt, 713 F.2d 972 (3d Cir. 1983), nn.444, 458, 468–69
Pendleton, In re, No. CIV.A.90-1091, 1990 WL 29645 (E.D. Pa. Mar. 15,
1990), n.504
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711
(1987) (Delaware Valley II), n.242
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546
(1986) (Delaware Valley I), nn.220, 224–25
Pennsylvania v. Flaherty, 983 F.2d 1267 (3d Cir. 1993), n.291
People Who Care v. Rockford Board of Education, 921 F.2d 132 (7th Cir.
1991), nn.44, 294
Perotti v. Seiter, 935 F.2d 761 (6th Cir. 1991), n.144

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Piambino v. Bailey, 757 F.2d 1112 (11th Cir. 1985), n.44
Plott v. Griffiths, 938 F.2d 164 (10th Cir. 1991), n.40
Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), nn.121–22, 184
Polk v. New York State Department of Correctional Services, 722 F.2d 23 (2d
Cir. 1983), n.117
Powell v. Pennsylvania Railroad, 267 F.2d 241 (3d Cir. 1959), n.323
Powers v. Eichen, 229 F.3d 1249 (9th Cir. 2000), nn.412, 500
Prandini v. National Tea, 557 F.2d 1015 (3d Cir. 1975), n.99
Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992), nn.166, 170, 179
Prudential Insurance Co. of America Sales Practices Litigation, In re, 148 F.3d
283 (3d Cir. 1998), nn.387, 395
Puerto Rico v. Heckler, 745 F.2d 709 (D.C. Cir. 1984), n.343
Pulliam v. Allen, 466 U.S. 522 (1984), n.78
Quaratino v. Tiffany & Co., 166 F.3d 422 (2d Cir. 1998), n.110
Quave v. Progress Marine, 918 F.2d 33 (5th Cir. 1990), n.290
Quintus Securities Litigation, In re, 201 F.R.D. 475 (N.D. Cal. 2001), nn.489,
528
Ramey v. Cincinnati Enquirer, 508 F.2d 1188 (6th Cir. 1974), nn.436, 438
Ramos v. Lamm, 713 F.2d 546 (10th Cir. 1983), nn.119, 159
Ramsey v. Colonial Life Insurance Co. of America, 12 F.3d 472 (5th Cir.
1994), nn.280–81
Rawlings v. Prudential-Bach Properties, Inc., 9 F.3d 513 (6th Cir. 1993),
n.366
Ray v. U.S. Department of Justice, 87 F.3d 1250 (11th Cir. 1996), n.64
Razorfish Inc. Securities Litigation, In re, 143 F. Supp.2d 304 (S.D.N.Y.
2001), n.496
Reel v. Arkansas Department of Corrections, 672 F.2d 693 (8th Cir. 1982),
nn.39, 149
Reimers, In re, 972 F.2d 1127 (9th Cir. 1992), n.501
Reiser v. Del Monte Properties, 605 F.2d 1135 (9th Cir. 1979), nn.326, 445
Resolution Trust v. Marshall, 939 F.2d 274 (5th Cir. 1991), n.274
Rheam, In re, 137 B.R. 151 (Bankr. E.D. Pa. 1992), n.504
Rhodes v. Stewart, 488 U.S. 1 (1988), n.19
Richardson v. Penfold, 900 F.2d 116 (7th Cir. 1990), n.74
Riverside v. Rivera, 477 U.S. 561 (1986), nn.200–01, 209
Robinson v. City of Edmond, 160 F.3d 1275 (10th Cir. 1998), nn.172, 248
Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981), n.286
Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990), nn.156–57, 175

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Rosario v. Amalgamated Ladies Garment Cutters Union, 605 F.2d 1228 (2d
Cir. 1979), n.455
Rosenbaum v. MacAllister, 64 F.3d 1439 (10th Cir. 1995), n.465
Rosenfeld v. United States, 859 F.2d 717 (9th Cir. 1988), n.294
Ross, In re, 135 B.R. 230 (E.D. Pa. 1991), n.504
Rude v. Buchhalter, 286 U.S. 451 (1932), n.328
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994), nn.81,
117, 136, 302
Russell v. Board of Plumbing Examiners of the County of Westchester, 74 F.
Supp.2d 349 (S.D.N.Y. 1999), n.72
Samuels v. American Motor Sales Corp., 969 F.2d 573 (7th Cir. 1992), n.77
Satoskar v. Indiana Real Estate Commission, 517 F.2d 696 (7th Cir. 1975),
n.343
Saunders, In re, 124 B.R. 234 (Bankr. W.D. Tex. 1991), n.502
Save Our Cumberland Mountains v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988),
n.116
Schleit v. British Overseas Airways Corp., 410 F.2d 261 (D.C. Cir. 1969),
n.336
Schneider v. Colegio de Abogados de Puerto Rico, 187 F.3d 30 (1st Cir.
1999), n.65
Schneider v. Lockheed Aircraft Corp., 658 F.2d 835 (D.C. Cir. 1981), n.68
Schultz v. Hembree, 975 F.2d 572 (9th Cir. 1992), nn.177, 298
SEC v. Price Waterhouse, 41 F.3d 805 (2d Cir. 1994), n.64
Sederquist v. Court, 861 F.2d 554 (9th Cir. 1988), n.461
Shakopee Mdewakanton Sioux Community v. City of Prior Lake, Minnesota,
771 F.2d 1153 (8th Cir. 1985), n.118
Sheppard v. Riverview Nursing Center, Inc., 88 F.3d 1332 (4th Cir. 1996),
n.214
Shimman v. International Union of Operating Engineers, 744 F.2d 1226 (5th
Cir. 1984), nn.434, 452, 456–57
Shipes v. Trinity Industries, Inc., 883 F.2d 339 (5th Cir. 1989), nn.222, 226,
293–94
Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003), nn.28, 34
Six Mexican Workers v. Arizona Citrus Growers, 904 F.2d 1301 (9th Cir.
1990), nn.369, 382, 416
Skelton v. General Motors Corp., 860 F.2d 250 (7th Cir. 1988), nn.234, 306,
352, 373, 394
Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir. 1983), n.467
Smith v. Freeman, 921 F.2d 1120 (10th Cir. 1990), nn.132, 144, 237

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Smith v. Great American Restaurants, 969 F.2d 430 (7th Cir. 1992), n.272
Smith v. University of North Carolina, 632 F.2d 316 (4th Cir. 1980), n.25
Smithkline Beckman Securities Litigation, In re, 751 F. Supp. 525 (E.D. Pa.
1990), n.387
Sounds Distributing Corp., In re, 122 B.R. 952 (Bankr. W.D. Pa. 1991), n.502
Southeast Legal Defense Group v. Adams, 657 F.2d 1118 (9th Cir. 1981),
n.342
Southerland v. International Longshoremen’s Union, 845 F.2d 796 (9th Cir.
1987), nn.427, 430, 465
Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977), n.149
Spain v. Mountanos, 690 F.2d 742 (9th Cir. 1982), n.150
Spanish Action Committee of Chicago v. City of Chicago, 811 F.2d 1129 (7th
Cir. 1987), nn.181, 185
Spegon v. Catholic Bishop of Chicago, 175 F.3d 544 (7th Cir. 1999), n.130
Spell v. McDaniel, 824 F.2d 1380 (4th Cir. 1987), n.124
Spellan v. Board of Education, 59 F.3d 642 (7th Cir. 1995), n.179
Sprague v. Ticonic, 307 U.S. 161 (1939), nn.308–09, 324, 333–35
Standley v. Chilhowee R-IV School District, 5 F.3d 319 (8th Cir. 1993), n.106
Starks v. George Court Co., 937 F.2d 311 (7th Cir. 1991), n.90
Staten v. Housing Authority of Pittsburgh, 638 F.2d 599 (3d Cir. 1980), n.94
Stevens v. Municipal Court, 603 F.2d 111 (9th Cir. 1979), n.343
Strong v. BellSouth Telecommunications, Inc., 137 F.3d 844 (5th Cir. 1998),
n.370
Student Public Interest Research Group v. AT&T Bell Laboratories, 842 F.2d
1436 (3d Cir. 1988), n.258
Suffolk v. Long Island Lighting Co., 907 F.2d 1295 (2d Cir. 1990), nn.307,
351–52, 358, 377
Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (D.C. Cir. 1993), n.365
Synthroid Marketing Litigation, In re, 264 F.3d 712 (7th Cir. 2001), n.153
T & D Tool & Die, Inc., In re, 132 B.R. 525 (E.D. Pa. 1991), n.504
Taxman Clothing Co., In re, 134 B.R. 286 (N.D. Ill. 1991), n.503
Taylor v. Fort Lauderdale, 810 F.2d 1551 (11th Cir. 1987), n.26
Terket v. Lund, 623 F.2d 29 (7th Cir. 1980), n.286
Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S.
782 (1989), nn.18, 42
Thirteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire Litigation, In re, 56 F.3d 295 (1st Cir. 1995), nn.366, 418
Thomas v. National Football League Players Ass’n, 273 F.3d 1124 (D.C. Cir.
2001), n.205

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Thomason v. Schweiker, 692 F.2d 333 (4th Cir. 1982), n.248
Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (1923), n.4
Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), nn.244, 287
Tomazzoli v. Sheedy, 804 F.2d 93 (7th Cir. 1986), nn.158, 263
Toth v. UAW, 743 F.2d 398 (6th Cir. 1984), n.460
Trujillo v. Heckler, 587 F. Supp. 928 (D. Colo. 1984), n.343
Trustees v. Greenough, 105 U.S. 527 (1881), nn.2, 303, 345, 398, 413
Tyler v. Corner Construction Corp., 167 F.3d 1202 (8th Cir. 1999), n.96
United States ex rel. Evergreen Pipeline Construction Co. v. Merritt Meridian
Construction Corp., 95 F.3d 153 (2d Cir. 1996), n.106
United States ex rel. Virani v. Jerry M. Lewis Truck Parts & Equipment, Inc.,
89 F.3d 574 (9th Cir. 1996), n.73
United States v. ASCAP, 466 F.2d 917 (2d Cir. 1972), n.322
United States v. Board of Education of Waterbury, 605 F.2d 573 (2d Cir.
1979), n.58
United States v. Imperial Irrigation District, 595 F.2d 525 (9th Cir. 1979),
n.447
United States v. Tobias, 935 F.2d 666 (4th Cir. 1991), nn.356–57
United Steelworkers v. Phelps Dodge, 896 F.2d 403 (9th Cir. 1990), n.257
Usery v. Local Union No. 639, International Brotherhood of Teamsters, 543
F.2d 369 (D.C. Cir. 1976), nn.427–28, 464
Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988), nn.132, 149, 177, 299
Utah Women’s Clinic v. Leavitt, 75 F.3d 564 (10th Cir. 1995), nn.282–83
Valley Disposal, Inc. v. Central Vermont Solid Waste Management District,
71 F.3d 1053 (2d Cir. 1995), n.97
Vaughan v. Atkinson, 369 U.S. 527 (1962), n.4
Venegas v. Mitchell, 495 U.S. 82 (1990), n.109
Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), n.178
Vincent v. Hughes Air West, 557 F.2d 759 (9th Cir. 1977), nn.304, 359–60
Von Clark v. Butler, 916 F.2d 255 (5th Cir. 1990), nn.171, 207
Walker v. HUD, 99 F.3d 761 (5th Cir. 1996), nn.160, 235
Ward v. County of San Diego, 791 F.2d 1329 (9th Cir. 1986), n.25
Washington v. Philadelphia County Court of Common Pleas, 89 F.3d 1031
(3d Cir. 1996), nn.125, 204
Washington v. Seattle School District, 458 U.S. 457 (1982), n.85
Washington Public Power Supply System Securities Litigation, In re, 19 F.3d
1291 (9th Cir. 1994), nn.236, 366, 369, 395

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Waters v. International Precious Metals Co., 190 F.3d 1291 (11th Cir. 1999),
n.311
Webb v. Board of Education, 471 U.S. 234 (1985), n.37
Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988), nn.26, 294
Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518 (1st Cir. 1991),
nn.373, 395
Wells Fargo Securities Litigation, In re, 156 F.R.D. 223 (N.D. Cal. 1994),
nn.528, 536
Wenderhold v. Cylink Corp., 188 F.R.D. 570 (N.D. Cal. 1999), nn.528, 537
West Side Women’s Service v. Cleveland, 594 F. Supp. 299 (N.D. Ohio 1984),
n.43
West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991),
nn.104–05
Weyant v. Okst, 198 F.3d 311 (2d Cir. 1999), n.17
Wheatley v. Ford, 679 F.2d 1037 (2d Cir. 1982), n.88
White v. New Hampshire, 455 U.S. 445 (1982), nn.13, 276–77
Whittier v. Emmett, 281 F.2d 24 (D.C. Cir. 1960), n.327
Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992), nn.57, 60–61, 71
Wildman v. Lerner Stores, 771 F.2d 605 (1st Cir. 1985), n.124
Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), n.26
Williams v. MGM-Pathe Communications Co., 129 F.3d 1026 (9th Cir.
1997), n.311
Williams v. Roberts, 904 F.2d 634 (11th Cir. 1990), n.172
Wing v. Asarco Inc., 114 F.3d 986 (9th Cir. 1997), n.231
Winter v. Cerro Gordo County Conservation Board, 925 F.2d 1069 (8th Cir.
1991), n.174
Winton v. Amos, 255 U.S. 373 (1921), n.327
Woodside v. School District of Philadelphia Board of Education, 248 F.3d
129 (3d Cir. 2001), n.64
Woolridge v. Marlene Industries Corp., 898 F.2d 1169 (6th Cir. 1990), n.153
Wray v. Clarke, 151 F.3d 807 (8th Cir. 1998), n.97
Yaron v. Northampton, 963 F.2d 33 (3d Cir. 1992), n.149
Zamora v. Local 11, 817 F.2d 566 (9th Cir. 1987), n.431

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The Federal Judicial Center
Board
The Chief Justice of the United States, Chair
Judge Bernice B. Donald, U.S. District Court for the Western District of
Tennessee
Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit
Magistrate Judge Karen Klein, U.S. District Court for the District of North
Dakota
Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit
Judge James A. Parker, U.S. District Court for the District of New Mexico
Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of
Pennsylvania
Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana
Leonidas Ralph Mecham, Director of the Administrative Office of the U.S.
Courts
Director
Judge Barbara J. Rothstein
Deputy Director
Russell R. Wheeler
About the Federal Judicial Center
The Federal Judicial Center is the research and education agency of the federal
judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629),
on the recommendation of the Judicial Conference of the United States.
By statute, the Chief Justice of the United States chairs the Center’s Board,
which also includes the director of the Administrative Office of the U.S. Courts
and seven judges elected by the Judicial Conference.
The organization of the Center reflects its primary statutory mandates. The
Education Division plans and produces education and training programs for
judges and court staff, including satellite broadcasts, video programs, publications, curriculum packages for in-court training, and Web-based programs and
resources. The Research Division examines and evaluates current and alternative
federal court practices and policies. This research assists Judicial Conference
committees, who request most Center research, in developing policy recommendations. The Center’s research also contributes substantially to its educational
programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations & Development Office and Communications
Policy & Design Office—in using print, broadcast, and on-line media to deliver
education and training and to disseminate the results of Center research. The
Federal Judicial History Office helps courts and others study and preserve federal
judicial history. The International Judicial Relations Office provides information
to judicial and legal officials from foreign countries and assesses how to inform
federal judicial personnel of developments in international law and other court
systems that may affect their work.