District Court Fee Decision Disappoints Civil Rights Plaintiffs

14 15. finally, the court briefly noted that arbor hill also required a district court to consider whether 6 as to the relevance of arbor hill in common fund cases, see in re ramp corp. sec. litig., no. 05 4 the focus on market rates underpinning arbor hill's "presumptively reasonable fee" approach. id. hill's language that use of an out-of-district rate is appropriate "only in the unusual case." see 5 as arbor hill was a statutory fee shifting case, the court pointed towards the twelve case-specific 7 reasonably expended in the litigation"). 23 on two similar cases in the same judicialdistrict, in which "some ofthe ground work for this litigation 21 schenectady did not involve the previous unearthing of facts regarding the specific defendants, but would enable it to correctly approximate a market hourly rate for fees. see id. at 189-90. 5 25 13 we similarly see no clear error in the district court's remaining determinations as to the 10 interpretation of the "forumrule," though it ultimatelyupheld the district court's decision to deny the 4 (s.d.n.y.2003) (finding defendants liable);stipulationandorderofsettlement anddiscontinuance, 15 contend that, in addition to committing errors in relation to each of these factors, the district court 23 district of new york (sharpe, j.), approving the settlement of a class action arising from alleged 12 lodestar method, our commonfund and statutoryfee shifting cases have employed the same definition 7 rate[.] [o]nce that initial computation has been made, the district court may, in its 15 considers these same factors in calculating a multiplier to the lodestar. the benefit of arbor hill's 4 at the start, we note that it is unclear how any error in the district court's decision to use 12 the district court's award was within its discretion given the considerations outlined in its discussion 16 district of new york. i've not discounted them as a result of that." id. at 26-27. in other words, 7 consistently applied, it would be irrelevant where an attorney was from, it would be 15 the fee. to the contrary, plaintiffs' and defendants' lawyers share an interest in the approval of an 11 as calculated in the fee schedule submitted by class counsel, they would have 8 and that the schenectadycountyjailhad no formalpolicyofstrip searching alldetainees. ultimately, 2 a clearly erroneous factual finding � cannot be located within the range of permissible decisions.'" 19 this presumption may be rebutted � albeit only in the unusual case � if the party 1 fromother awards. see 539 f.3d at 134. our case law makes clear both that no presumption applies 10 we address first appellants' contention that the district court improperly counted the 11 common fund context, plaintiffs have little incentive to negotiate size of attorneys' fees because of 26 defendants-appellees. 23 the better course [and] the one most consistent with attorneys' fees jurisprudence is 24 7 civ. 6521, 2008 wl 58938, at *2 n.3 (s.d.n.y. jan. 3, 2008); in re aol time warner erisa 6 but rather whether the district court abused its discretion in awarding this fee." in re nortel networks 31 1 of the profession" whose "genius and dedication were vital in resolving the complexities of the 15 "presumptivelyreasonable fee." 522 f.3d at 183. in brief, the court suggested that a district court's 4 its reliance upon arbor hill in the following fashion: 19 number of hours worked) and then adjusting the lodestar through a multiplicative factor to account 20 9 factors such as the risk of litigation and the performance of the attorneys. 9 with litigation, for example, which is "perhaps the foremost factor" to be considered in assessing the 12 exceeded that traditional rate in the northern district of new york. i've not 20 themselves and others similarlysituated, asserting that the schenectadycountysheriff's department 21 fund fee."), and in the latter context, indicate whether a multiplier should be applied to the lodestar. 1 cannot have hurt them.6 7 prevailing party in an action brought under 42 u.s.c. � 1983, were entitled to a statutory award of the southern district of new york, sitting by designation. 16 after this discussion, the district court repeated its decision not to employ the percentage 20 must be measured as of when the case is filed"), a policy of conducting blanket strip searches of 6 approach in common fund cases. see silberblatt v. morgan stanley, 524 f. supp. 2d 425, 434 13 cases, especiallybecause � since the attorneys' fees are drawn from a common fund rather than being 25 the case specific variables that this court and other courts have identified as relevant 9 ordinary hourly rate counsel charged. id. at 14. as to the fifth factor, the portion of the overall 15 circuits have done so. this court has considered the advantages and disadvantages of the lodestar 18 bythe number ofhours worked. at the same time, the court observed that it was awarding attorneys' 12 13 clarifying the forum rule, the court held that: 4 injunctive relief. the parties vigorously litigated this action for a period of more than three years, 16 methodology is that by considering case-specific factors at the outset, the district court's focus on 1 cases under either the `lodestar' method or the `percentage of the fund' method." wal-mart stores, 18 concerned citizens neighborhood association v. county of albany, 493 f.3d 110 (2d cir. 2007), 3 26 to the reasonableness of attorneys' fees in setting a reasonable hourly rate. 8 litig., no. 02 cv. 8853, 2007 wl 3145111, at *1 n.3 (s.d.n.y. oct. 26, 2007), this court's case 3 conclusion 16 plaintiff's attorney at 687-90. and as in the case of the lodestar method, neither defense counsel 20 whichmethod is used, the `goldberger factors'ultimatelydetermine the reasonableness ofa common 4 superseded by 522 f.3d 182 (2d cir. 2008), or in its application of the reasonableness factors set 14 consider using the percentage approachissquarelycontradicted bythe record. . . . [t]he court clearly 7 elmer robert keach, iii, law office of elmer robert 22 19 superseded by 522 f.3d 182 (2d cir. 2008), quoting our observation that "the meaning of the term 5 share in the potential economic "upside" (i.e., fees as a percentage of a large common fund), 2 litigation," this court upheld a fee award with no multiplier. 209 f.3d at 55-56. both here, and in 1 accordingly, the reasonable hourly rate is the rate a paying client would be willing to 18 fact that class counsel "did a fine job and obtained a good settlement," oral decision at 14, also 17 reasonable using the factors articulated in goldberger and the most recent arbor hill decision." id. 6 throughout the course of the litigation, appellees maintained that the class members were 15 out-of-district rate sought and the rates charged bylocalattorneys � in calculating the 11 liabilityappear[ed] reasonablycertain,"oraldecisionat 13, appellants contend that the case was "far 14 reasonable award." oral decision at 12. 11 id. at 9. the court stated that the percentage method, by contrast, involves setting "some percentage 13 explicitly enumerated among the goldberger factors, it is clear that experience might be relevant to 22 lodestar method, the district court characterized arbor hill as holding that: 10 alternative'" (quoting savoie v. merchants bank, 166 f.3d 456, 460 (2d cir. 1999)), and noting that 4 august term 2008 3 of no lodestar multiplier at all is within the district court's discretion. see goldberger, 209 f.3d at 1 erroneous factual finding, or (2) its decision � though not necessarily the product of a legal error or 3 supreme court inblum v. stenson requiring the use ofthe percentage method in common fund cases, 24 major in the schenectady county sheriff's department, 5 at 191-92. 6 cases that result in a very large monetary award, the percentage method holds the potential to result 10 products litig., 818 f.2d 226, 232 (2d cir. 1987) ("[w]e have adopted a lodestar formula for 26 on a percentage of the fund, the district court elected to calculate fees using a variant of the lodestar 14 paid separately by the defendants � there is little incentive for the defendants to contest the size of or "modified" lodestar method throughout this opinion. 12 including any lodestar-based attorneys' fee award, this task is often challenging in common fund 20 contributed to its decision not to use a percentage-based approach, the court's reliance on arbor hill 1 in common fund cases is without problems. it is for reasons such as those just discussed that in 9 1099 (2d cir. 1977) ("grinnell ii") (internal quotation marks omitted) abrogated on other grounds, 25 from the common fund established by the settlement. rather than base its attorneys' fees calculation 2 court indicated that "[i]n the past, both the lodestar and the percentage of fund methods have been 5 fee-shifting context. while it is true some district courts in this circuit have expressed uncertainty 21 appellants contend that the district court failed to consider basing its calculation ofattorneys' 22 discussion 21 adjacent to him at opposing counsel's table."). 7 treated the supreme court's dicta in blum as demanding a single method for calculating attorneys' 13 attorneywas from, [and the appropriate rate] would be what the prevailing rate is for attorneys in this 3 504 f.3d 229, 249 (2d cir. 2007) ("in common fund cases, courts typically use either the lodestar 16 ofthe percentage method would be inappropriate, choosing instead "to determine what amount [was] 5 error of law. nor does appellants' observation that experience might in some cases enable counsel 10 to the extent that appellants' argument depends on the inference that, had the district court 17 while appellants are correct that shain was decided bya divided panel, we cannot saythat the district 7 intuitions that "a reasonable paying client wishes to spend the minimum necessary to litigate the case 18 earlier in the calculation. instead of first determining the lodestar (multiplying an hourly rate by the 5 the `common fund doctrine,' where a reasonable fee is based on a percentage of the fund bestowed 3 resolved in favor of plaintiffs in a third. see dodge v. county of orange, 282 f. supp. 2d 41 28 17 nor the actual plaintiffs have much of an incentive under the percentage-of-fund approach to oppose litigation, 197 f.r.d. 71 (s.d.n.y. 2000), for an expanded discussion of the disadvantages 19 as possible, to do unnecessary work, and for these reasons also can create a disincentive to early 5 its discretion in making these determinations, we affirm. the honorable lewis a. kaplan, district judge of the united states district court for* 13 unconstitutionality of misdemeanor strip searches was "far from stable" at the time of their suit, id. of the traditional lodestar approach, by definition, did not incorporate case-specific factors that 12 _____________________________________ 9 at all," appellants' br. at 15, is factuallyincorrect. the court described both the lodestar method and 4 plaintiffs' motionfor partialsummaryjudgment inapril2006, concludingthat montgomerycounty's 22 indicated that a multiplier was inappropriate in light of the fact that counsel had previously worked 16 efforts to approximate the reasonable fee that a competitive market would bear � the implicit goal of 5 from the [percentage] usually awarded in similar cases. instead, we adhere to our prior practice that 18 9 implications of economic theory for private enforcement of law through class and derivative 21 yielded attorneys' fees in the amount of $344,795. the district court also allowed the reimbursement 2 pay. 11 discretion where the plaintiff recovered only nominal damages and received no other meaningful 19 $10,053.31, and administrative expenses in the amount of $107,233.40, resulting in a final award of 10 propriety of a multiplier, and typically weighs in its favor, can weigh against the use of a multiplier 4 to counsel by this experience � relevant to several of the goldberger factors � does not constitute an the court's dissatisfaction with the term "lodestar" stemmed from its sense that the term5 2 retain out-of-district counsel is best considered in setting the hourly rate � rather than deciding 1 bros. builder, inc. v. am. radiator & standard sanitary corp., 487 f.2d 161 (3d cir. 1973) as 19 a percentage-of-fund or lodestar approach is used, see wal-mart, 396 f.3d at 121 ("irrespective of we do not suggest that concerns present in the common fund and statutory fee-shifting7 5 forth in goldberger v. integrated resources, inc., 209 f.3d 43 (2d cir. 2000). 2 using a percentage-of-fund approach, in the extent of its reliance on our decision in arbor hill 29 3 of the percentage method, see id. at 47-53, and instead left the decision as to the appropriate method 2 amounted to $460,796.50. differences between the two opinions are immaterial for the purposes of this appeal. 4 vincenty v. bloomberg, 476 f.3d 74, 83 (2d cir. 2007)). "`[a]buse of discretion' � already one of 13 finally, we reject appellants' assertions that the district court erred in its findings as to the 13 8 190. 21 approval of class action settlement, kahler v. rensselaer county, no. 1:03-cv-01324 (n.d.n.y. 16 that damages were difficult to prove are similarlyinsufficient to demonstrate clear error in the district 9 however, they agreed to the terms of a settlement, pursuant to which appellees agreed to substantial 10 in challenging the district court's attorneys' fee determinations, appellants make several 3 even if only nominal monetary damages had been recovered, appellants' attorneys stood to recover 14 fifth and sixth goldberger factors, the reasonableness of the fee in relation to the size of the 32 plaintiffs-appellantsappealfromanorder ofthe united states district court for the northern 12 gary e. mason, the mason law firm, washington d.c., 10 bierman llp, new york, ny, jonathan watson 15 understood that it could have awarded a percentage fee in this case. it simply chose not to do so." 4 a fee based on their success in obtaining injunctive relief. "[w]here bothmonetaryand equitable relief 21 acknowledged that an award of damages was uncertain in the case, it correctly noted that "[t]he 4 explanation of each approach. id. at 9-10. as the court noted, under the lodestar method: 20 compensated by a fee enhancement." goldberger, 209 f.3d at 54. while the district court 1 but the percentage method has its limitations as well. as we indicated in goldberger, this 10 resulting in an attorneys' fees award of $600,000 out of a total settlement fund of $2 million, or 30% because unclaimed portions of the fund reverted to the defendant, attorneys' fees as a1 5 [t]he district court scrutinizes the fee petition to ascertain the number of hours 11 attorneys' experience in litigating strip search cases against them when that factor should have 17 attorneys' fees. the court slightly increased the total amount to be paid to counsel, granting 6 background 11 reliance on that case. 10 injunctive reliefand the creationofa settlement fund totaling $2.5 million. the settlement agreement, 1 rather the prior mining of relevant case law and shoring up of legal arguments that the district court 10 to explain application of lodestar method); aol time warner, 2007 wl 3145111, at *1 n.3 2 approach rather than a percentage-of-fund approach, though the court's bench decision does not, in 17 benefit of an adversarial process, which may . . . inform[] and sharpen[] the judicial inquiry." doe 6 definition of the lodestar method. if that were to be applied as the way it was 6 reasonably billed to the class and then multiplies that figure by an appropriate hourly 19 entirely contingent on their ability to overcome such hurdles, they must, as a matter of law, be 14 appellants also contend that the district court impermissibly relied on this court's decision in 18 court's sense of the strength of appellants' case was clearly erroneous. at the time the instant suit 15 william g. greagan, goldberg segalla, llp, albany, 2 in any event, we find no error in the district court's reliance on arbor hill in this case. at 2 calculating the presumptively reasonable fee.) the goldberger factors include: (1) counsel's time 20 appeal] stood up at oral argument to petition for a bigger slice of his clients' recovery, no one sat 3 settlement fund of $2.7 million, about 16% of the fund. in mariott, the district court granted the1 3 rate for the attorneys' work. see id. at 186, 190. this reasonable hourly rate could then be 12 one. id. with regard to the last goldberger factor, public policy, the district court took note of "the 15 that counsel were adequately compensated for their time and effort using their ordinary rates, and structure with attorneys because fees are paid entirely by defendants), but simply that the lodestar 18 common fund, the court noted its duty to act as "a guardian of the rights of absent class members" 4 on the latter for its "presumptive reasonable fee" approach and its more flexible application of the 13 of the goldberger factors. see nortel, 539 f.3d at 134. 13 suit. see judgment, steinberg v. county of rockland, no. 04 civ. 4889 (s.d.n.y. may 23, 2005). 7 by the court, "the preclusion of employment by the attorney due to acceptance of the case," oral 5 what i'm saying about arbor hill is this, i'm simply dispensing with the classic 14 court improperly relied on arbor hill to justify its decision not to use the percentage method, since 20 i. the district court's decision not to employ a percentage-of-fund method 1 already been reached in two other class actions involving blanket strip search policies, including made not only "a particularized showing . . . that the selection of out-of-district counsel was 12 iii. the district court's application of the goldberger factors 10 docket no. 07-5580-cv 17 against them, when in fact their experience should have weighed in favor of a higher fee. 19 multiplier of the lodestar. if appellants are correct that the court's assessment of the multiplier 6 the business of analyzing and reviewing attorneys' fee applications," appellants' reply br. at 9, we 5 jail policies included an unconstitutional strip search for which the county was liable (although 9 district court's impression of the multiplier as being too large may have been responsible for its 17 paid those higher rates. we presume, however, that a reasonable, paying client would 8 or against the use of a multiplier depends heavily on the facts of a case. the level of risk associated 2 circuit's adoption of the lodestar method was precipitated by the perception that percentage fees 8 at 469). even if a more thorough review by the district court of attorneys' fee awards in strip-search 3 kickham hanley p.c. v. kodak ret. income plan, 558 f.3d 204, 209 (2d cir. 2009) (quoting 17 mimicking a market is maintained. see arbor hill, 522 f.3d at 192. 21 court's failure to consider awards in similar cases, that case upheld a fee award despite its disparity 6 because "`the district court, which is intimately familiar with the nuances of the case, is in a far better approach is common to both. 4 for the foregoing reasons, the order of the district court appealed from is affirmed. 25 3 whether to adjust a presumptively reasonable fee," since, inter alia, this approach comported with 18 hurdles � such as the defenses available to defendants �" and "argue that because their fee was 12 quotation marks omitted). 5 appellants assert that there would be a benefit in allowing "district judges . . . [to] step away from 2007), and johnson v. georgia highway express, inc., 488 f.2d 714 (5th cir. 1974), abrogated 1 for case-specific considerations, the arbor hill court suggested that a district court should assess 27 21 maintained a policy, implemented by senior officers including appellees harry buffardi, gordon 16 8 2001), in which it determined, relying on its previous decisions in wachtler v. county of herkimer, 3 2000), the district court concluded that counsel were adequately compensated by an award of fees 16 remuneration for legal services is needed to ensure that such suits are brought by competent counsel. 11 me. 2005) (observing a percentage-of-fund range of 16-33% in strip search cases), we conclude that 3 available to district judges in calculating attorneys' fees in common fund cases," and provided a brief 4 that reflected their normal hourly rates. because we conclude that the district court did not abuse 3 bottom, appellants' arguments regarding arbor hill are founded upon the assumption that the 27 method described by this court in arbor hill concerned citizens neighborhood association v. 3 fact, make it at all evident that the case influenced the court's selection. 3 concerned citizens neighborhood association v. county of albany, 493 f.3d 110 (2d cir. 2007), 5 district courts within this circuit have referred to arbor hill's "presumptively reasonable fee" 1 fees on a percentage of the fund secured by counsel, that it flouted a "clear trend in the law towards 15 9 common fund cases might have indicated that the 13% fee awarded in this case was slightly below 1 mar. 18, 2004); order, kahler v. rensselaer country, no. 1:03-cv-01324 (n.d.n.y. sept. 23, 23 we review a district court's award of attorney's fees for abuse of discretion, goldberger v. 9 selection of the percentage method on remand. use of in-district counsel would [have] produce[d] a substantially inferior result." see id. at 176. 6 these factors. see id. at 47-48. cf. merck-mecco, 504 f.3d at 249 ("the district court applied the 9 [determination]."). 6 on other grounds by blanchard v. bergeron, 489 u.s. 87, 92-93 (1989), as well as the underlying 8 police department's strip search policy, which they alleged was closely related to that of the associated with the lodestar and percentage-of-fund approaches to common fund fee awards. 16 third, they assert that, whether or not the district court was within its discretion in employing a 11 attorneys' fees "that should properlybe performed in each case." goldberger, 209 f.3d at 52. even see 493 f.3d 110 (2d cir. 2007). following a petition for rehearing, this court amended its 5 arbor hill's modified lodestar approach, even assuming such error occurred, could compel a finding 11 worked to their detriment. in clarifying its understanding of that case, however, the court indicated 7 in attorneys' fees many times greater than those that would have been earned under the lodestar of 18 11 search of a pre-trial detainee charged only with a misdemeanor absent an individualized, reasonable 11 when the magnitude of risk stems only from a lawsuit's dubious legal merit. see id. at 54 (internal 22 be reckoned by a client paying the attorney's bill. 19 was brought, see goldberger, 209 f.3d at 55 (noting that "[i]t is well-established that litigation risk method. to emphasize the similar role of both the lodestar method and arbor hill's method as 14 throughout new york state. see, e.g., complaint, mcbean v. city of new york, no. 02-cv-5426 1 hill may have improperly influenced the district court's decision to select a modified lodestar 6 to demand a higher fee make the district court's conclusion that it cut the opposite way in this case 7 regard to the rights of those who are interested in the fund.'" id. at 53 (quoting grinnel ii, 495 f.2d 16 prison litigation reform act ("plra") and because damages were difficult to prove in their case. 8 11 (concurring with conclusions of arbor hill-based cross-check of percentage award). from a 13 considers case-specific factors to estimate a reasonable rate for an attorney's services, which is then 22 plaintiffs-appellants appealfromanorderoftheunited states district court for the northern 20 effort into this case," but also concluded that this time and effort was sufficiently compensated by goldberger factors, we decline to remand for consideration of this issue alone. 13 compelling public policy reasons for keeping an eye on attorneys' fees in class action cases." id. at 5 "there was risk on the issue of damages," that risk was of little importance to counsel, who would 13 discounted them as a result of that. that's the impetus of the arbor hill decision. 19 goldberger, 209 f.3d at 53 ("it is not without significance that when [lead counsel for plaintiffs on 13 calculating the fee award. thus, the "assertion that the district court erroneously refused even to 15 the burden of litigating the case had precluded an attorney from accepting other gainful employment. 19 experience in litigating similar cases. we consider each of these arguments in turn. "lodestar" altogether, the approach adopted in that case is nonetheless a derivative of the lodestar 1 county of albany, 493 f.3d 110 (2d cir. 2007), superseded by 522 f.3d 182 (2d cir. 2008). 6 addressing each ofthe sixfactors outlined in that case. the one johnson factor separatelyconsidered 3 charged. the complaint sought compensatory and punitive damages, as well as declaratory and 4 involved in the particular litigation, it found that "liability was reasonably certain" and that although 14 we are mindful that public policy supports the pursuit of meritorious class action litigation 15 that case and others cited by the court involved statutory fee shifting rather than a common fund. 21 inshort, neither the lodestar nor the percentage-of-fund approachto awarding attorneys'fees 3 case in which liability appear[ed] reasonably certain." id. with regard to the third factor, the risks 10 a reasonable attorney's fee. that is as substantialan explanation whysome ofthe fees 15 on september 5, 2007, the district court in this case conducted a final fairness hearing 17 modified-lodestar method to calculate attorneys' fees, it committed errors in its application of the 14 5:03-cv-00531 (n.d.n.y. may 15, 2007). that in the fee-shifting context, plaintiffs have little incentive to negotiate a market-based rate 2 14 goldberger in determining a "reasonable common fund fee." id. at 9-10; see goldberger 209 f.3d 7 on october 19, 2001, this court issued its decision in shain v. ellison, 273 f.3d 56 (2d cir. 15 arbor hill concerned citizens neighborhood association v. county of albany, 493 f.3d 110 (2d while the arbor hill panel indicated its preference for abandonment of the term2 12 relief."). 13 wake of this decision, a number of lawsuits challenging strip search policies were commenced 7 3 even when it is not in their clients' best interest. while under the lodestar method lawyers share the 18 on june 29, 2004, appellants nichole marie mcdaniel and lessie lee davies filed a 17 plaintiffs-appellants, 10 goldberger, 209 f.3d at 43, and reaffirm the requirement of a "searching assessment" regarding simmons, 575 f.3d at 174. were we to reconsider the district court's decision to permit some 11 calculating fees in equitable fund and statutory fee contexts."). to the contrary, in discussing the 6 that the court should have used the percentage method instead. given that a district court has the 13 method of calculating attorneys' fees, a court is guided by the factors articulated by this circuit in 9 cir. 1992) (per curiam)). 21 awarding fees determined by the attorneys' ordinary hourly rates. id. at 12-13. moreover, the court 6 have been statutorily entitled to attorneys' fees as the prevailing party in a � 1983 action, even if only 14 elucidated in goldberger for determining the reasonableness of a common fund fee. appellants 13 ii. the district court's reliance on arbor hill 5 with various attorneys for the plaintiff class spending more than 1000 hours working on the case. 4 lodestar method applied in the common fund context is distinct from that employed in the statutory 11 not referenced arbor hill, appellants' suggested 26% fee would have seemed more reasonable, an 9 appellants. we are therefore unconvinced the court "modified the goldberger factors" in any 4 see 465 u.s. 886, 900 n.16 (1984) (observing that "[u]nlike the calculation of attorney's fees under 5 fees." id. at 56. "[t]he question before us is not whether we would have awarded a different fee, 16 suggest that here attorney experience should have weighed in favor of some multiplier. they further 10 contexts are identical in every respect, compare goldberger, 209 f.3d at 53 (noting that in 8 percentage award); in re assicurazioni generali s.p.a. holocaust ins. litig., nos. 97 civ. 2262, 98 3 unconstitutional strip search policies. the district court's decision to consider the benefit afforded 14 oral decision at 26-27. 4 method or the percentage method to compute attorneys' fees."); masters v. wilhelmina model 7 goldberger test and made specific and detailed findings from the record, as well as from its own 17 v. rensselaer county, no. 1:03-cv-1324 (n.d.n.y. oct. 31, 2003); complaint, mariott v. county 5 have been pursued, the size of the monetary recovery is not necessarily the proper measure of the 2 f.2d at 717-19, we note that the district court's reliance on arbor hill in this case was limited. while 17 10 2d 304 (n.d.n.y. 2001). compl. at � 33. while appellants note that the appellees distinguished 10 disinclination to base attorneys' fees on a percentage ofthe fund, the court's reliance upon arbor hill 16 other counties in new york maintained impermissible strip search policies. see complaint, kahler 20 and for similar reasons find appellants' contention regarding their performance to be insufficient to 10 43, 54 (2d cir. 1997) ("[w]e have held that the denial of attorneys' fees was not an abuse of 07-5580-cv 15 drawing upon "the factors . . . outlined," the district court then determined that application 2 lodestar awards can create the near opposite incentive, encouraging attorneys to settle before trial predicated on experience-based, objective factors," but also demonstrated "the likelihood that the 28 2 case-specific considerations at the outset, factoring theminto its determination ofa reasonable hourly 9 bruce e. menken, beranbaum, menken, ben-asher & 2 substitute our own predilections for the judgment of the district court." id. 6 a fee award should be based on scrutiny of the unique circumstances of each case, and a `jealous 16 to the former essentially repeats their "benchmark" assertion that the fee award in this case was too 1 id. at 191. the court further indicated that "the reasonableness of a prevailing party's decision to 1 was already established." id. at 13. as to the second factor, the complexity of the case, the district 18 in most cases hire counsel . . . whose rates are consistent with those charged locally. 7 clearly erroneous. indeed, our prior case law indicates that whether a given factor cuts in favor of 16 presumptively reasonable fee if it is clear that a reasonable, paying client would have 7 underscore the importance of the district court's duty "to act as a fiduciary who must serve as a be within the district court's discretion to award the same attorneys' fee by reevaluating the 18 an award of attorneys' fees, the latter since "[t]hey have no real incentive to mount a challenge that 20 substantially higher than the prevailing rate in the northern district of new york. this method 21 7 discretionto choose either the lodestar or percentage-of-fund approachincalculating attorneys'fees, 24 violations of the their constitutionalrights, but awarding less than the requested fee to their attorneys 15 schedule submitted by class counsel . . . would have exceeded [the] traditional rate in the northern 14 several of them, including consideration of the time and effort expended by counsel, the complexity 1 fee-shifting contexts are somewhat different, compare wal-mart, 396 f.3d at 121, with johnson, 488 8 expenditure of attorney time.'" leblanc-sternberg v. fletcher, 143 f.3d 748, 758 (2d cir. 1998) 17 court's findings with respect to litigation risk. counsel must do more than "point to . . . general 8 see supra section i, any error in a court's application of the lodestar method would not necessitate 15 appellants'assertions that the defendants inthis case possessed potentiallyvalid defenses and 12 similar case in which a lawsuit was dismissed, that case was decided nearly a year after they brought 21 of an out-of-district attorney was reasonable under the circumstances as they would 19 at 54, 56. 7 (s.d.n.y. 2007) (referencing arbor hill in use of lodestar as cross-check on reasonableness of 13 is unfounded. in arbor hill, this court proposed the use of a modified version of the lodestar 8 43 stan. l. rev. 497, 543 (1991); john c. coffee, jr., understanding the plaintiff's attorney: the 18 method," it remains the law in this circuit that courts "may award attorneys' fees in common fund 9 (quoting hensley v. eckerhart, 461 u.s. 424, 435 n. 11 (1983)). cf. mccardle v. haddad, 131 f.3d 12 attorneys' fees "in the amount not to exceed 26%" of the total settlement fund, and also provided for 10 response to the district court's conclusion that the case was "an ordinary civil rights case in which 5 1974) ("grinnell i"), abrogated on other grounds by goldberger, 209 f.3d at 43). particularly in 11 request of plaintiffs' counsel to calculate their hourly fees based on their home district, rather than 18 assessment that an award equivalent to 13% was "squarely within the range" of typical awards and opinion sua sponte. see 522 f.3d 182 (2d cir. 2008). while we cite to the amended version, the 6 affirmed. 27 _____________________________________ 15 faced substantial litigation risk due to the availability of an exhaustion of remedies defense under the 8 effectively" and that a paying client's negotiating position may be strengthened by the attorneys' on other grounds by blanchard v. bergeron, 489 u.s. 87, 92-93 (1989). our discussion in this 7 . may recover a fee award based on all hours reasonably expended if the relief obtained justified that 19 that appellants' suggested lodestar multiplier was at the low end of multipliers that have often been 10 settlement allocated to attorneys' fees, the percentage arising from its use of the arbor hill method 18 of montgomery, no. 5:03-cv-00531 (n.d.n.y. apr. 29, 2003). in kahler, the parties reached a 20 but it is because ofthe case-specific nature ofthe fee award inquiry that we have been loath to disturb 4 adoption of lodestar approach in common fund case). it is therefore not surprising that several 16 settlement and explicitly incorporating the content of its oral decision, including the award of 4 the district court in this case relied on the original version of the arbor hill opinion.4 13 appellants'finalargumentsconcernthedistrict court'sapplicationofthe case-specific factors 10 there is substantial contingency risk in every common fund case" that would justify such a multiplier. 7 merely "required to change into jail uniforms in the presence of a corrections officer of the same sex" 19 overcompensation" for risk that has troubled this court in the context of "mega-fund" class actions, 9 35 f.3d 77 (2d cir. 1994), walsh v. franco, 849 f.2d 66 (2d cir. 1988), and weber v. dell, 804 f.2d 11 the "change outs" pursuant to their policy from forbidden strip searches, and point to a purportedly 2 inc. v. visa u.s.a., inc., 396 f.3d 96, 121 (2d cir. 2005); see also cent. states se. v. merck-medco, 11 20 $461,031.21. 2 considering the factors set forth in goldberger v. integrated resources, inc., 209 f.3d 43 (2d cir. 3 and labor; (2) the litigation's magnitude and complexity; (3) the risk of the litigation; (4) the quality 19 fees based upon the rates ordinarily billed by class counsel, even to the extent that those rates were 8 keach iii, pc, amsterdam, new york, jason j. rozger, 4 multiplied by the number of hours worked to generate a "presumptively reasonable fee." id. at 190.5 16 goldberger, 209 f.3d at 50-51. 21 unhelpfulness." oraldecision at 10 (quoting arbor hill, 493 f.3d at 117). in place ofthe traditional 19 complaint in the united states district court for the northern district of new york on behalf of 8 fees in common fund cases or otherwise foreclosing the use of a lodestar approach. see goldberger, 20 10 796 (2d cir. 1986), that it was clearly established that a corrections officer may not perform a strip 14 nichole marie mcdaniel, individually and on behalf of a class of others similarly 8 the quality of representation, counsel "did a fine job," but were adequately compensated by the 14 during the litigationofthis case, counselfor appellants also acted as counselfor the plaintiffs 2 for the second circuit 5 considerations. 209 f.3d at 50. importantly, we defer to the district court's determinations regarding 6 especially since trial requires comparatively fewer hours than the process of trial preparation. see 3 16 cir. 2007), since that case addressed the use of the lodestar method in the context of statutorily 9 civ. 9186, 00 civ. 9413, 2009 wl 762438, at *2 (s.d.n.y. mar. 24, 2009) (relying upon arbor hill 12 requiring a court to "determin[e] the reasonable hourly rate for each attorney and the reasonable 10 the percentage method of calculating attorneys' fees in its bench decision before indicating that it 12 from simple," appellants' br. at 24, that this circuit's holding in shain regarding the in addition to the cases and other sources cited infra, see in re auction houses antitrust3 12 that if "[the traditional lodestar method] were to be applied . . . it would be irrelevant where an 4 of representation; (5) the requested fee in relation to the settlement; and (6) public policy their minimal pro rata gain from any reduction in fees), with arbor hill, 522 f.3d at 184 (noting 19 should have counted infavor ofa higher award. we have alreadyaddressed the experience argument, 25 decision rests on an error of law (such as application of the wrong legal principle) or clearly 21 the determinations of district courts in this area. "when the exercise of . . . discretion is supported 23 undersheriff of the county of schenectady, robert elwell sr., both individually and as 21 county of schenectady, harry buffardi, both individually and in his official 19 of defendants-appellees. section accounts for the district court's reliance on those cases as well. 9 a presumptive percentage award as a "benchmark" in common fund cases lies in the "assumption that 15 a case prematurely once their opportunity costs begin to rise. see coffee, understanding the 17 had the district court not referenced arbor hill, and instead relied on its understanding of the forum 21 misdemeanor detainees was clearly unconstitutional. see shain, 273 f.3d at 62-66. settlements had 9 associated with the litigation, compel a higher fee award than that granted by the court below. in 11 six other circuits, post-blum, have given district courts the option of choosing either the percentage 11 attorney). although the district court is charged with ensuring the fairness of a proposed settlement, 7 suggested fee award of 26% represented, in its estimation, a multiplier of 1.98-2.24 beyond what 9 4 "downside" risk of trial (i.e., the possibility of an adverse judgment, and hence no fee), they do not 8 goldberger, 209 f.3d at 47-48 (quoting in re bolar pharm. co. sec. litig., 966 f.2d 731, 732 (2d had lost its meaning in the sense of a "star that leads," since the number generated by the first step 8 counsel would have earned based on their hourly rates. appellants suggest that to the extent the 2 who's entitled to obtain attorneys' fees pursuant to 14 [u.s.c. �] 1988." oral decision at 13-14. as appellants note, the district court also referred to other statutory fee-shifting cases, 19 settlement in march 2004, about three months prior to the initiation of the instant suit, which the 9 "desire to obtain the reputational benefits that might accrue from being associated with the case." 2 goldberger we declined to "junk" the lodestar method in favor of the presumptive or exclusive use 13 appellants nonetheless urge this court to adopt the percentage method as the presumptive 18 v. c.i.a., 576 f.3d 95, 107 (2d cir. 2009); see also baker v. carr, 369 u.s. 186, 204 (1962); 10 the lower end of the spectrum, see nilsen v. york county, 400 f. supp. 2d 266, 281, 287-289 (d. 1 further observing that the calculation of a reasonable fee was committed to its sound discretion, the 12 attorneys'feesusingthepercentagemethod, suggesting"[t]hepercentagemethod is the presumptive, 3 8 familiarity with the case . . . . accordingly, we find no reason to disturb the district court's 15 on november 5, 2007, the district court issued a final decision and order approving the 11 (roughly13%) was "squarelywithinthe range ofreasonable percentages in such a case" as the instant 3 that case, "while the district court declined to award formal multipliers for . . . quality of 15 at 47, 50. earlier in the fairness hearing, the court had noted that the requested amount of 26% of 19 of prosecuting the case, the district court recognized that "class counsel put substantial time and 14 [a] district court may use an out-of-district hourly rate � or some rate in between the 15 of the litigation, and quality of the representation. in goldberger itself, this court upheld the district including porzig v. dresdner, kleinwort, benson, north america llc, 497 f.3d 133 (2d cir. 9 defendant county, had been found unconstitutionalin gonzalez v. city of schenectady, 141 f. supp. 2 [using] the percentage method," appellants' br. at 11, and even that it defied an instruction by the 1 we conclude that the district court did not abuse its discretion by declining to award attorneys' fees 17 briefly here.3 6 17 method or apply any type of multiplier to the fee calculated bymultiplying the attorneys' hourly rates 16 (n.d.n.y. mar. 19, 2004); complaint, pritchard v. county of erie, no. 04 cv 0534 (w.d.n.y. july 17 "on the other side ofthe ledger, however, is our longstanding concern for moderation." goldberger, we note in passing that this court's recent decision in simmons v. new york city transit6 2 kahler, in which appellants' counsel themselves were involved, and the issue of liability had been 20 (citing cont'l ill. sec. litig., 962 f.2d 566, 573 (7th cir. 1992)). 13 approval of class action settlement and judgment, marriott v. county of montgomery, no. 18 to the extent that the specific factors considered by courts in the common fund and statutory 14 approach to fee awards or to abandon the lodestar approach altogether, noting that several other 13 plaintiffs and their attorneys more fullybyallowing the latter to share in both the upside and downside 14 risk oflitigation, it can create perverse incentives ofits own, potentiallyencouraging counselto settle 11 north america llc, 497 f.3d 133 (2d cir. 2007), the district court characterized arbor hill as 15 (s.d.n.y. july 15, 2002); complaint, kelsey v. schoharie county, new york, no. 1:04-cv-00299 17 criticize the court's finding regarding the fourth factor, quality of representation, and urge that the 12 counted, if at all, in favor of the higher proposed fee award. although attorney experience is not 22 capacity as sheriff of the county of schenectady, gordon pollard, both individually and as 18 actions against the same defendants and because the legal issues presented were not novel. 209 f.3d 1 of $9,001.50 in litigation expenses and $107,000 in administrative expenses. the total award thus 12 suspicion that the detainee possesses contraband or weapons. see shain, 273 f.3d at 59. in the 15 situated, lessie lee davies, individually and on behalf of a class of others similarly situated, 2 court determined that the case at bar was "not particularlycomplex" as it was "an ordinarycivilrights 9 arbor hill also indicated that the district court in that case had been unduly restrictive in its 1 damages risk is of little consequence to an attorney for a prevailing plaintiff in a civil rights case 11 would apply a variant of the former. in its written decision and order approving the settlement, the2 1 by adequate findings and is consistent with our preference for moderation, as it was here, we will not 17 far from the percentage-of-fund awards in similar cases, adding that the district court erred in its 12 were we not bound by circuit precedent on the matter, we would decline to hold otherwise. 8 appellants' assertion that the district court "refused to consider using the percentage method 19 would result in only a `minuscule' pro rata gain from a fee reduction." goldberger, 209 f.3d at 53 24 integrated res., inc., 209 f.3d 43, 47-48 (2d cir. 2000), "which occurs `when (1) [the court's] 12 of the recovery as the fee," and recognized that, whether using the percentage method or lodestar 6 on the class, a reasonable fee under [42 u.s.c.] � 1988 reflects the amount of attorney time 14 goldberger factors. appellants find fault with the court's determination regarding the first factor, 16 12 moreover, although the percentage method has the advantage of aligning the interests of 16 ny, for defendants-appellees. 14 13 5 described in johnson v. georgia highway express, inc., 488 f.2d 714 (5th cir. 1974), abrogated 19 and the resulting need to "approach fee awards with an eye to moderation." oral decision at 9. 15 to vindicate constitutional rights. appellants suggest that some reward beyond the ordinary 20 awarded. while appellants cite to nortel as demonstrating this court's concern over a district 17 awarded attorneys' fees, rather thana commonfund. theysuggest, inter alia, that reliance onarbor4 21 livingston, circuit judge: 13 preferred method" in this circuit. appellants' br. at 9. second, appellants suggest that the district 12 v. county of montgomery, no. 5:03-cv-00531 (n.d.n.y. apr. 13, 2007); order granting final 2 foundational case for lodestar approach in statutory fee case); goldberger, 209 f.3d at 48 (citing 4 representation, the court did consider those factors by allowing counsel to recover generous hourly 19 -v.- 7 nominal damages were awarded. id. at 13-14. the court further noted that, as to the fourth factor, 3 after counselfor appellants objected to the reduction of their fees, the district court clarified given that the forum rule was not raised as an issue in this appeal, and the fact that it would likely class counsel in this case to use an out-of-district rate, we would examine whether appellants 23 authority, 575 f.3d 170 (2d cir. 2009), has further clarified the forum rule, emphasizing arbor 11 arguments. first, they contend that the district court committed legal error by failing to calculate 17 attorneys had been "helped enormously" by the "spadework" performed by federal authorities in 10 17 acceptability of the agreement. in determining the proper fees to be awarded to counsel from the 21 show clear error. even in goldberger, where counselwere praised bythe district court as "the cream 9 6 plaintiff's success. . . . `[a] plaintiff who failed to recover damages but obtained injunctive relief . . 3 lindy bros. in common fund case); grinnell i, 495 f.2d at 470-74 (citing lindy bros. in justifying 16 court's decision to award a lodestar fee with no multiplier in part based upon its observation that the 1 (under the arbor hill approach, they would be factored into the appropriate hourly rate before 33 district of new york (sharpe, j.), approving the settlement of a class action arising from alleged 14 area." oral decision at 26. the court then stated that "some of the fees as calculated in the fee 13 and referenced the same foundational cases. see, e.g. arbor hill, 522 f.3d at 186 (citing lindy7 30 before: walker, livingston, circuit judges, kaplan, district judge.* 17 the lodestar approach � would be better served byconsidering case-specific "reasonableness" factors 7 janet cooper alexander, do the merits matter? a study of settlements in securities class actions, 8 nor are we convinced that goldberger factors two and three, the complexity and risk 17 21, 2004). alternatives to the percentage-of-fund approach, we refer to arbor hill's approach as a "variant" 9 2006). the parties thereafter reached a settlement, which received final approval in may 2007, 10 meaningful way by referencing arbor hill, and accordingly, we find no error in the district court's 7 01324 (n.d.n.y. mar. 18, 2004). moreover, appellants' complaint noted that the schenectady 1 settlement. see id. at 48-49 (citing savoie, 166 f.3d at 460-61). under certainconditions, moreover, 11 signed on july 31, 2006, indicated that appellants' counsel would petition the court for an award of 2 2004). counsel in kahler received attorneys' fees of approximately $442,700 out of a total 18 the lodestar method is not perfect. it creates an incentive for attorneys to bill as many hours 18 attorneys' fees in the amount of $343,744.50, reimbursement of litigation expenses in the amount of 7 argued: may 13, 2009 decided: february 16, 2010 9 that i'm dispensing with when i say that's no longer the standard of what constitutes 5 16 agreed upon settlement. goldberger, 209 f.3d at 52-53. as a result, the district judge "los[es] the 6 reaching no decision as to the scope of damages) and that plaintiffs' counsel, as counsel to a 20 16 "invented" an additional factor, holding the attorneys' experience in litigating strip search cases 14 at 25 (quoting mcbean v. city of new york, 233 f.r.d. 377, 387 (s.d.n.y. 2007)), and that they 4 id. at 10. the court indicated that the factors relevant to any such determination were those 5 the most deferentialstandards ofreview � takes on specialsignificance whenreviewing fee decisions" 18 at 12. regarding the first goldberger factor, the time and labor expended by counsel in the course 14 15 in two other actions � each initiated prior to the filing of the complaint in this case � alleging that 13 for plaintiffs-appellants. nichole mcdaniel, et al. v. county of schenectady, et al. 11 cuneo, cuneo, gilbert & laduca, washington d.c., 10 oral decision at 11. finally, citing this court's decision in porzig v. dresdner, kleinwort, benson, 18 209 f.3d at 57. civil rights cases may or may not raise the same danger of "routine 14 17 philip k. howard, jennifer o. farina, covington 20 district court ultimatelyapproved in substantialpart. see motion to certifyclass and for preliminary 16 the total settlement fund, or $650,000, was equivalent to a lodestar multiplier of 1.98 to 2.24. 24 for the district court, in exercising its considerable discretion, to bear in mind all of 6 factors outlined in johnson, 488 f.2d at 717-19, as being among those relevant to a district court's 6 in the instant case, the district court observed early in its bench decision that the plaintiffs' 6 and for preliminaryapprovalofclass actionsettlement, kahler v. rensselaer county, no. 1:03-cv- 1 united states court of appeals 9 law does not suggest that there are two different lodestar methods, see, e.g., in re agent orange percentage of the fund actually paid to plaintiffs were ultimately higher. see nilsen v. york 2 schenectady county jail and placed in jail clothing, regardless of the crime with which they were 21 this appeal followed. 17 although we have acknowledged that "the trend in this circuit is toward the percentage 13 the separate reimbursement of administrative expenses. county, 400 f. supp. 2d 266, 287 (d. me. 2005) (discussing kahler). 7 determination of a reasonable market rate under this revised approach. see arbor hill, 522 f.3d at 16 regarding the proposed settlement agreement, during which it issued an oral decision regarding the 4 lawyer." 209 f.3d at 48 (quoting city of detroit v. grinnell corp., 495 f.2d 448, 468, 469 (2d cir. 6 approach alone in calculating attorneys fees in common fund cases."). and this court has never 20 wishing the district court to use a higher rate demonstrates that his or her retention 12 or the lodestar method). 8 discretion, increase the lodestar by applying a multiplier based on other less objective 6 12 mathematical perspective, of course, it makes little difference whether a court, following arbor hill, 18 & burling llp, new york, ny, as amicus curiae in support 14 multiplied by the number of hours worked, or whether the court takes the traditional approach and 8 what the prevailing rate is for attorneys in this area. that's the aspect of arbor hill 3 "tended to yield too little for the client-class, and an unjustified `golden harvest of fees' for the 4 51-57. a fee award does not "constitute an abuse of discretion simply because it deviates materially 9 209 f.3d at 49 (observing that "blum indicates that `the percentage-of-the-fund method is a viable 8 18 the goldberger factors are applicable to the court's reasonableness determination whether 8 hourly rate multiplied by hours worked. "the principal analytical flaw" in appellants' argument for 13 number of hours expended and multiply[] the two figures together to obtain the presumptively 23 5 spinner v. city of new york, no. 1:01-cv-2715 (e.d.n.y. june 9, 2004); motion to certify class 8 decision at 15, weighed in favor of a higher fee award, and its consideration did not prejudice the 20 here, the advance spadework that assisted counsel in their suit against the county of 18 goldberger factors, including the use of an unprecedented factor to penalize counsel for their 19 15 settlement and public policyconsiderations relevant to fee awards. appellants' argument with regard 8 interim attorneys' fees. marriott v. county of montgomery, 426 f. supp. 2d 1, 6-12 (n.d.n.y. 5 forum rule. and in considering case-specific factors, the district court clearly followed goldberger, 26 12 the less expansive prevailing rates in the district where the litigation occurred. see id. at 190-94. in 11 ofthe fund. see motionto approve consent judgment (exhibit a, settlement agreement), marriott 11 id. at 52. 34 violations of their constitutional rights, but awarding less than the requested fee to their attorneys. 20 `lodestar' has shifted over time and its value as a metaphor has deteriorated to the point of 16 and percentage methods previously, see goldberger, 209 f.3d 47-53, and we need onlyaddress them 18 rule as traditionally applied, appellants' suggested 26% fee would have represented an even higher 1 pollard, and robert elwell, of strip-searching all individuals who were incarcerated at the 12 court reiterated its decision to use neither a lodestar multiplier nor the percentage method in 5 agency, inc., 473 f.3d 423, 436 (2d cir. 2007) ("of course, courts may continue to use the lodestar 8 guardian of the rights of absent class members," city of detroit v. grinnell corp., 560 f.2d 1093, 12 analysisofarbor hill and the district court's reliance on that decision shows that appellants'concern 7 corp. sec. litig., 539 f.3d 129, 134 (2d cir. 2008). 17 the district court then embarked upon a discussion of this court's decision in arbor hill 7 position to make [such] decisions than is an appellate court, which must work from a cold record.'" 2 to the percentage of a common fund that should be awarded to plaintiffs' counsel, and that an award 3 the court referenced johnson in its initial discussion of arbor hill, it later clarified that it was relying 4 to "the district court, which is intimately familiar with the nuances of the case." id. at 48. while 2 reasonably concluded to have occurred during the course of two prior actions alleging 14 approach and recommended abandonment of the term "lodestar" for the alternative term 10 actions, 86 colum. l. rev. 669, 717 (1986) (hereinafter coffee, understanding the plaintiff's