3.1 Introduction

• Library: Attorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

3.1 INTRODUCTION

3.101 In General. The prevailing party in federal litigation generally is not entitled to an award of attorney fees because traditionally, under the "American Rule," parties are responsible for bearing the costs of their own attorney fees. ¹ However, courts will award reasonable attorney fees when there is explicit statutory authority or a fee shifting provision in a contract. ² The party requesting attorney fees and costs bears the burden of demonstrating the reasonableness of the fees that it seeks to recover. ³

3.102 Lodestar. The general approach to awarding attorney fees when statutorily or otherwise available under federal law is set out in Hensley v. Eckerhart,⁴ which instructs that the most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This figure is commonly referred to as the lodestar and is presumed to be a reasonable fee. ⁵

3.103 Johnson/Barber Factors. In determining the reasonableness of the number of hours and rate, a court is guided by twelve factors commonly known in the Fourth Circuit as the Johnson/Barber ⁶ factors:

1.	The time and labor expended;
2.	The novelty and difficulty of the questions raised;

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3.	The skill required to properly perform the legal services rendered;
4.	The attorney's opportunity costs in pressing the instant litigation;
5.	The customary fee for like work;
6.	The attorney's expectations at the outset of the litigation;
7.	The time limitations imposed by the client or the circumstances;
8.	The amount in controversy and the results obtained;
9.	The experience, reputation and ability of the attorney;
10.	The undesirability of the case within the legal community in which the suit arose;
11.	The nature and length of the professional relationship between attorney and client; and
12.	Attorney fees awards in similar cases.

After determining the lodestar figure, a federal court "should subtract fees for hours spent on unsuccessful claims unrelated to successful ones." ⁷ Finally, "[o]nce the court has subtracted the fees incurred for unsuccessful, unrelated claims, it then awards some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff." ⁸

Accordingly, as a general rule, it is very rare for a prevailing party to be awarded all of its requested attorney fees by a federal court.

3.104 Perdue Rules. Receiving attorney fees above the lodestar is theoretically possible...