3.5 Methodology of Determining Attorney Fees: Lodestar Method

LibraryAttorney Fees and Sanctions - Virginia and Federal Courts (Virginia CLE) (2016 Ed.)

3.5 METHODOLOGY OF DETERMINING ATTORNEY FEES: LODESTAR METHOD

3.501 General Approach. In calculating an award of attorney fees, a court must first determine a lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate. 182 Second, after determining the lodestar figure, the "court should subtract fees for hours spent on unsuccessful claims unrelated to successful ones." 183 Third, [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." 184

3.502 Reasonableness. The initial step is for a court to multiply the number of reasonable hours expended in a case times a reasonable hourly rate. 185 Courts have been vigilant in declaring that only hours reasonably expended may be recovered.

In determining reasonableness, the plaintiff must submit documentation that reflects contemporaneous recordation of time spent on legal tasks that are described with reasonable particularity, sufficient to permit the court to weigh the hours claimed and exclude hours that were not 'reasonably expended.' 186 It is often stated in the Eastern District of Virginia that when analyzing the lodestar figures, "proper documentation is the key." 187

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It is clear that a prevailing party may not recover for hours not expended on the litigation for which the attorney fees are being sought. 188 Where a sizeable portion of the requested fees were accumulated before plaintiffs amended their complaint to add the ILSFDA claim, the only claim on which that they were successful on, the lodestar hours should be re-duced. 189

A prevailing party may recover its paralegal's fees under the rubric of attorney fees. 190

There is a strong presumption of correctness of the lodestar figure. 191 However, the calculation of the lodestar does not end the inquiry. 192 The lodestar method was never intended to be conclusive in all circumstances.

Instead, there is a "strong presumption" that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. 193

3.503 The Twelve Johnson/Kimbrell Factors. To determine a reasonable number of hours and rate for a particular case . . . a district court's discretion should be guided by the following twelve factors, commonly known as the Johnson/Kimbrell or Johnson/Barber factors. 194

However, in making its evaluation, a "court need not address all twelve . . . factors independently, because 'such considerations are usually subsumed within the initial calculation of hours reasonably expended at a reasonable hourly rate." 195 Additionally, the court need not address in detail

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each and every factor. "Instead, the Court discusses those factors that are relevant to its determination of the reasonable amount of attorney fees to award in each particular case." 196

A. Time and Labor Required. Applicant should exercise billing judgment with respect to the hours worked. 197

Use of senior partner instead of more junior associate on common discovery tasks and on drafting the complaint suggests a failure to exercise billing judgment. 198
The court's duty is to determine the attorney fee award to fairly and fully compensate prevailing attorneys, not to produce windfalls to the prevailing attorney. 199
Applicant should make a good faith effort to exclude from its fee request hours that are excessive, redundant or otherwise unnecessary. 200
Fees incurred while responding to a motion filed by defendant are recoverable. 201
Fees that were caused by the conduct of adversary are recoverable. 202

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Fees defeating defendant's claim of spoliation are recoverable. 203
While a court must consider the overall result of the litigation in terms of the moving party's success, no authority exists which persuades the court to reduce the fee award for reasonable, but unsuccessful tactics, within litigation. 204
Fees associated with working with an expert who is ultimately excluded is recoverable because expert's analysis was used in presenting evidence to the jury. 205
Where initial review of facts made fraud claim likely, discovery time spent on unsuccessful claim does not make the related hours per se unreasonable. 206
Where the defendant refused to admit liability, such that the matter had to be litigated all the way through summary judgment and the record was replete with

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efforts by the opposing party to settle, it was appropriate to award attorney fees to the opposing party. 207
Hours spent in discussions with client prior to filing the complaint (3.1 hours) were necessary to develop the facts of the case, explain the nature of the lawsuit, the duties and responsibilities of the plaintiff, the likely progression of the litigation and the possible remedies and are recoverable. 208

B. Novelty and Difficulty of the Questions Presented.

Carlos Humberto Cab Siquic v. Star Forestry, LLC, 2016 WL 1650800 (W.D. Va. 2016) (Conrad, C.J.) (after default in Fair Labor Standards Act class action case, court awarded $137,313 in attorney fees given the complexity of the case, in that 200 members of the class were in Guatemala, the language barrier between counsel and the class members, the time constraints on class members' ability to speak with counsel, the lack of employment records in defendant's possession, the requirement that counsel devote their time to this case instead of other matters, and the attorneys' familiarity with the H-2B regulatory scheme and the FLSA, as well as the case being undesirable to other firms in the legal community).
Vienna Metro LLC v. Pulte Home Corp., 1:10-cv-502 (E.D. Va. 2011) (Lee, J.) (the Court awarded fees to Plaintiff's attorneys in the amount of $4,137,345 given the magnitude and complexity, which the Court characterized as complex real estate litigation. The rates accepted by the court included: $689 per hour for attorney with 25 years' experience; $665 for attorney with 16 years' experience, $550 for attorney with seven years'

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experience and on the low end, $366 for an attorney with two years' experience.).
Randle v. H&P Capital, Inc., 3:09cv608, 2010 U.S. Dist. LEXIS 74994, 2010 WL 2944907 (E.D. Va. 2010) (Lauck, J.) (where the defendants challenged the constitutionality of statutory language being vague, time spent researching applicable law and time drafting complaint were reasonable and the time spent preparing a response to a motion for summary judgment that was not filed because of settlement can be recovered).
Signature Flight Support Corp. v. Landow Aviation Ltd., 730 F.Supp.2d 513 (E.D. Va. 2010) (Cacheris, J.) (complex issues of contract interpretation that was supported by conflicting interpretations, plus the length of the bench trial, the large volume and complex nature of the records and testimony introduced at trial, the fact that both parties employed expert witnesses, filed extensive briefs on a number of motions relating to the ultimate resolution of the case, and provided the court with lengthy proposed findings of fact and conclusions of law, supported award of fee).
W.A.K., II v. Wachovia Bank, N.A., 3:09cv575, 2010 U.S. Dist. LEXIS 79074, 2010 WL 3074393 (E.D. Va. 2010) (Hudson, J.) (the complexity of the analysis may be heightened by the scarcity of case law guiding the application of the law).
In re Outsidewall Tire Litigation, 748 F.Supp.2d 557 (E.D. Va. 2010) (Ellis, J.) (the fact that defendants resided in foreign countries did complicate the prosecution of a case, but these challenges are generally isolated to the initial phases of a case, such as service of process and the establishment of jurisdiction and did not warrant court's heavy reliance on this factor for evaluating fees for the case).
Nahigian v. Juno Loudoun, LLC, 1:09cv725, 2010 U.S. Dist. LEXIS 118143, 2010 WL 4623895 (E.D. Va. 2010) (Cacheris, J.) ("while the new cases were decided during this action that affected the law applicable to alleged

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ILFSDA violations, this litigation did not present any particularly complex or novel questions of law or require a unique skill set").
Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005) ("Mercer's claim was a novel one that established a new rule of law with regard to liability under Title IX. Because Mercer's litigation thus served an important public purpose, we conclude that the district court did not abuse its discretion by concluding that Mercer's victory entitled her to an award of attorney fees even though she ultimately recovered only nominal damages.")
Morse v. Republican Party of Virginia, 972 F.Supp. 355, 364 (4th Cir. 1997) (where voting rights case was one of first impression that when it went to the Supreme Court generated five separate opinions illustrates the novelty and complexity of the case).
Superior Form Builders v. Dan Chase Taxidermy Supply Co., 881 F.Supp. 1021 (E.D. Va. 1994) (Smith, J.) (litigation involved new and complex questions of copyright law, including the ability to copyright taxidermy forms, for which no precedent existed in the Fourth Circuit.).

C. Skills Required to Perform the Legal Services Properly.

Robinson v. Equifax Information Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009) (noting district court's finding that the matters raised in this case did not require extraordinary skills beyond those other counsel litigating similar statutory issues).
Khair v. Countrywide Home Loans, Inc., 1:10cv410, 2011 U.S. Dist. LEXIS 35503, 2011 WL 1304916 (E.D. Va. 2011) (Cacheris, J.)
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