C. Attorney's Fees

• Library: South Carolina Damages (SCBar) (2009 Ed.)

C. Attorney's Fees

Attorney's fees are also available to prevailing plaintiffs under Title VII.⁷⁶ The purpose of awarding fees is to encourage attorneys to prosecute cases that vindicate the objections of Title VII though they might be economically unattractive under a contingency fee arrangement.⁷⁷ Fees should be high enough to encourage attorneys to take cases without awarding windfalls.⁷⁸

In calculating attorney's fees, the Fourth Circuit employs the "lodestar" formula, multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate.⁷⁹ In making the reasonableness determinations, a court is to use the twelve factor test articulated in Johnson v. Georgia Highway Express, Inc.⁸⁰

Importantly, to receive attorney's fees, a party must "prevail."⁸¹ The Fourth Circuit has held where the plaintiffs were successful on their motion for a preliminary injunction, and the defendant then took action which rendered the claims moot, so that the plaintiffs dismissed their complaint, the preliminary injunction did not constitute a judgment on the merits which would warrant an award of attorney's fees by the court.⁸² Further, since the plaintiffs did not ask the court to enter a dismissal order that retained jurisdiction to enforce the order, as required by Kokkonen v. Guardian Life Insurance Co. of America,⁸³the Fourth Circuit held the settlement agreement and order of dismissal did not give the district court jurisdiction to rule upon plaintiff's motion for attorney's fees.⁸⁴

The degree of success does not determine whether a party prevails.⁸⁵ The degree of success may, however, play a role in the amount of the attorney's fee award. When successful claims are unrelated to unsuccessful claims, it is not appropriate to award fees for the latter. When, however, all claims "involve a common core of facts . ..[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis."⁸⁶ The Supreme Court in Hensley explained that "litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee."⁸⁷

An award of attorney's fees should include paralegal time and law clerk time.⁸⁸ It is inappropriate to award fees for secretaries, overtime and word processing charges in Title VII actions.⁸⁹

Prevailing plaintiffs are also entitled to receive expert witness fees and costs.⁹⁰ Counsel for prevailing parties should be aware, however, the costs for which a prevailing plaintiff can seek reimbursement are not limited to the parameters of Rule 54(d) or Local Rule 54.03. In Herold v. Hajoca Corp.,⁹¹the losing party argued that attorney travel expenses were not properly taxable as...