Bd Trst Loc 25 v. JPR Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 1997 Decided February 27, 1998

No. 97-7040

Board of Trustees of the Hotel and Restaurant Employees

Local 25 and Employers' Health and

Welfare Fund, et al.

Appellants

v.

JPR, Inc.,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 96cv01028)

Daniel M. Katz argued the cause and filed the briefs for

appellants. Ellen G. Ranzman entered an appearance.

Malcolm L. Pritzker argued the cause and filed the brief

for appellee. Steven R. Semler entered an appearance.

Before: Edwards, Chief Judge, Wald and Randolph,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Wald.

Opinion concurring in part and dissenting in part filed by

Circuit Judge Randolph.

Wald, Circuit Judge: This appeal is brought by the Boards

of Trustees of two employee benefit plans, (1) the Hotel and

Restaurant Employees Local 25 and Employers' Health and

Welfare Fund, and (2) the Hotel and Restaurant Employees

Local 25 and Hotel Association, Cafeteria and Other Sub-

scribing Employers Group Legal Services Fund. (We will

refer to the two plans as "the Funds," and to their Boards of

Trustees collectively as "the Trustees.") The Trustees pre-

vailed in an action in the district court in which they sought to

collect underpayments to the Funds by JPR, Inc. ("JPR"),

the entity that operates the Washington, D.C. restaurant La

Colline. In addition to recovering the shortfall in payments,

they collected interest, liquidated damages, litigation ex-

penses, and attorney's fees. The district court declined,

however, to award the Trustees auditing fees, and awarded

attorney's fees only at the rate actually charged, rather than

at market rates. The Trustees appeal these two rulings. We

affirm the first, but reverse the second, finding that the

district court must consider whether the fees charged by the

Trustees' attorney incorporated a public-spirited discount,

and, if so, award fees at market rates.

I. Background

The Funds were established by agreement between Local 25

of the Hotel & Restaurant Employees Union ("the Union")

and the Hotel Association of Washington, D.C. (the "Hotel

Association"); the Trustees who administer the Funds are

drawn from representatives of both parties. The Union

represents a bargaining unit of employees of La Colline, and

JPR is a member of the Hotel Association. The collective

bargaining agreement between the Union and JPR requires

JPR to make a specified contribution to the Funds for every

hour worked by an employee.

The documents establishing the Funds are called the "Den-

tal and Optical Care Plan Trust Agreement" 1 and the "Group

Legal Services Plan Trust Agreement." Each of these agree-

ments requires participating employers to make contributions

to the appropriate Fund, and permits the Trustees of that

Fund to audit employers' records in order to ensure that the

correct contributions have been made. The Trustees periodi-

cally conduct routine audits of participating employers to

assure that they are making the appropriate contributions.

This case arises out of such a routine audit, that of JPR's

contributions to the Funds from 1992 to 1994. The audit

revealed a total shortfall of $36,162.88. The Trustees at-

tempted to persuade JPR to pay this sum voluntarily, and

then filed suit to compel JPR to do so, bringing claims under

the Employee Retirement Income Security Act ("ERISA")

and the National Labor Relations Act. JPR raised three

affirmative defenses: first, that no payments were due for

employees in their first three months of employment; second,

that some of the employees were covered by other insurance

and that no contributions were needed on their behalf; and

third, (in a variation of the second argument) that it need not

make contributions for dental insurance which it asserted was

duplicative. The Trustees moved for summary judgment,

and the district court granted the motion, finding none of

JPR's defenses to be meritorious. JPR did not appeal this

ruling.

ERISA provides that "in any action under this subchapter

by a fiduciary for or on behalf of a plan to enforce section

1145 of this title in which a judgment in favor of the plan is

awarded, the court shall award the plan" an enumerated list

of elements of damages. 29 U.S.C. s 1132(g)(2) (1994). The

__________

1 The title of this agreement reflects the former name of the

Health and Welfare Fund.

Trustees' action was within this section, as it was brought,

inter alia, to enforce 29 U.S.C. s 1145, a provision that

relates to delinquent contributions.2 Accordingly, in addition

to recovering the overdue amount, the Trustees sought, and

the district court awarded, (1) interest (at 18%), (2) duplicate

interest in lieu of liquidated damages, (3) litigation expenses,

and (4) attorney's fees.

The district court declined, however, to award $9,066 in

audit fees sought by the Trustees. The Trustees also argued

that the amount of attorney's fees charged by their counsel,

$17,775, reflected a large charitable discount from market

rates, and that they should receive an award at the market

value of their counsel's legal services, which they claimed was

$43,068.75. The district court did not accept this argument,

and awarded only the actual amount of fees charged. These

two decisions are now before us on appeal.

II. Analysis

We have often been warned that "[a] request for attorney's

fees should not result in a second major litigation." Hensley

v. Eckerhart, 461 U.S. 424, 437 (1983). Clearly, the district

court is most familiar with the interstices of the litigation, and

we accord its decisions considerable deference. See id. at

437. Our review of its fee awards is confined to correcting

errors of law and remedying abuses of discretion. See Cov-

ington v. District of Columbia, 57 F.3d 1101, 1110 (D.C. Cir.

1995); see also Pierce v. Underwood, 487 U.S. 552, 571 (1988)

(stating that "it is well established that the abuse-of-

discretion standard applies" to review of a district court's

award of fees).

__________

2 Section 1145 provides: "Every employer who is obligated to

make contributions to a multiemployer plan under the terms of the

plan or under the terms of a collectively bargained agreement shall,

to the extent not inconsistent with law, make such contributions in

accordance with the terms and conditions of such plan or such

agreement." 29 U.S.C. s 1145 (1994). The Funds are multiem-

ployer plans.

A. Audit Fees

The Trustees sought two types of audit fees in the district

court: (1) the costs of the routine audit that discovered JPR's

shortfall in payments, and (2) fees for 24 hours of work

performed in connection with the merits of the delinquency

litigation before the district court. The district court denied

both categories of audit fee, for reasons that we conclude

were correct.

1. Costs of the Routine Audit

The Trust Agreement establishing the Health and Welfare

Fund contains a provision entitled "Default and Payment"

which provides that, in the event of "failure to pay such

monthly contributions in full within the time above provided,"

any person in default may be required at the discretion

of the Trustees to pay as liquidated damages such

amounts as the Trustees may determine, including inter-

est up to the maximum permitted by law, together with

all expenses of collection incurred by the Trustees, in-

cluding, but not limited to reasonable counsel fees, audit-

ing fees, and court costs, and any other lawful charges

for late payment as the Trustees may determine.

The Trust Agreement establishing the Legal Services Fund

contains a provision that is, for our purposes, identical (it

contains minor differences of wording). Because the two

provisions are equivalent, we will refer to them together as

"the" Default and Payment Clause.

ERISA requires that "[e]very employer who is obliged to

make contributions to a multiemployer plan ... make such

contributions in accordance with the terms and conditions of

such plan ...," 29 U.S.C. s 1145 (1994), and permits Plan

fiduciaries to bring suit to "enforce ... the terms of the

plan." 29 U.S.C. s 1132(a)(3) (1994). Thus, if the Default

and Payment Clause requires employers who are in default to

pay routine auditing fees, ERISA empowers the Trustees to

enforce that requirement. See Iron Workers District Council

v. Hudson Steel Fabricators & Erectors, Inc., 68 F.3d 1502,

1507 (2d Cir. 1995). The district court concluded that the

Default and Payment Clause did not include such a require-

ment, and hence declined to award routine auditing fees.

We review questions of the proper interpretation of ERISA

plans de novo. See Carey Canada, Inc. v. Columbia Cas. Co.,

940 F.2d 1548, 1554 (D.C. Cir. 1991). The Trustees point to

the Default and Payment Clause's statement that they may

collect "all expenses of collection incurred by the Trustees,

including, but not limited to reasonable counsel fees, auditing

fees, and court costs," and argue that this allows them to

collect all auditing fees, including the costs of the routine

audit that discovered an underpayment. We do not think so.

This passage only permits the Trustees to recoup those

"auditing fees" that qualify as "expenses of collection." An

"expense of collection," as that phrase is usually understood,

is an expense that results from collection efforts. The Trust-

ees have pointed to no evidence that this phrase means

something different here. The fact that the Default and

Payment Clause also lists "reasonable counsel fees" and

"court costs" as types of "expenses of collection" confirms our

reading; both are costs that are only incurred as a result of

collection efforts. (This is an application of ejusdem generis,

the canon of construction that states that "a general statutory

term should be understood in light of the specific terms that

surround it." Hughey v. United States, 495 U.S. 411, 419

(1990).)

This is not to say that auditing fees may never qualify as

"expenses of collection." Fees for non-routine follow-up au-

dits performed as a part of the collection process are clearly

included in the term. An audit that began as routine might

also abruptly change its stripes and become a non-routine

audit, if auditors discovered inconsistencies during their work

and did extra work to untangle them. Because such detective

work would be motivated by the desire to collect an under-

payment, rather than by the need to perform a routine audit,

it could fairly be called an "expense of collection." There is

no allegation of this kind here, however; the Trustees' audit

of JPR seems to have cost no more than would a routine audit

of any other employer.3

The Fifth Circuit has construed a similar plan provision--

which also allowed the Trustees to recover all "expenses of

collection"--to allow reimbursement of routine audit fees.

See Carpenters Amended and Restated Health Benefit Fund

v. Ryan Constr. Co., 767 F.2d 1170, 1175 (5th Cir. 1985).

Ryan found that the costs of the routine audit were "ex-

penses of collection" because an audit is "a necessary first

step in collection of any delinquency." Id. at 1175-76. We

believe the reasoning of Ryan proves too much. By Ryan 's

logic, the Trustees should also be able to put in for a host of

other expenses that are "necessary" to the initiation of collec-

tion efforts, i.e., the cost of their own salaries, as collection

efforts are impossible without effective supervision of the

auditors and of the Funds' finances. The test is not whether

an expenditure is a necessary precondition to collection ef-

forts, but rather the reverse, whether collection efforts

prompted the expenditure.4

2. Litigation-Related Auditing Expenses

The district court declined to grant the Trustees' request

for reimbursement for 24 hours of litigation-related auditing

__________

3 The Trustees argue that JPR's unusual recordkeeping practices

increased the costs of the routine audit. But there is no indication

that JPR adopted its recordkeeping practices in order to conceal

underpayments, or that there is any other link between those

practices and JPR's underpayment.

4 The Default and Payment Clause also states that "any person in

default may be required at the discretion of the Trustees to pay as

liquidated damages such amounts as the Trustees may deter-

mine...." The Trustees have not argued that this language enti-

tles them to recover routine audit fees, and we therefore have not

considered that question. Nor have the Trustees claimed that they

should have received audit fees under ERISA's provision permitting

the court to award "such other legal or equitable relief as the court

deems appropriate." 29 U.S.C. s 1132(g)(2)(E); see also Operating

Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1342-43 (9th

Cir. 1988) (finding that audit fees may be awarded under this

provision).

expenses, finding that the hours spent were "more in the

nature of litigation support than audit services, ... and in

any event are inadequately supported." We find that the

district court was within its discretion in concluding that this

request for reimbursement was inadequately supported. We

therefore do not consider whether litigation support services

are compensable under section 1132(g)(2). But cf. Missouri

v. Jenkins, 491 U.S. 274, 285 (1989) (finding that an award of

a "reasonable attorney's fee" under 42 U.S.C. s 1988 may

include the services of paralegals).

A plaintiff seeking attorney's fees under section 1983 must

demonstrate that the hours billed were reasonably expended

in pursuit of the litigation. "Counsel for the prevailing party

should make a good-faith effort to exclude from a fee request

hours that are excessive, redundant, or otherwise unneces-

sary, just as a lawyer in private practice ethically is obligated

to exclude such hours from his fee submission." Hensley, 461

U.S. at 434. "[I]f the district court finds that the attorney

failed to exercise billing discretion with respect to any of the

hours [claimed], the court may reject those hours as not

reasonably expended." Goos v. National Association of Re-

altors, 68 F.3d 1380, 1387 (D.C. Cir. 1995). The weaker the

apparent need for a particular activity, the higher the eviden-

tiary hurdle a claimant must cross in order to demonstrate

that it was in fact performed in a reasonable effort to pursue

the litigation.

The Trustees have failed to meet this standard of reason-

ableness. Sixteen hours of the twenty-four were consumed in

preparing for the Trustees' summary judgment motion, most-

ly on two declarations. The Trustees have not attempted to

provide us with any explanation of the need for these declara-

tions, and their purpose is not obvious, given that the results

of the audit appear not to have been in controversy. The

remaining eight hours were used to compile two tables, one

calculating the interest due on JPR's underpayments, and the

other listing the hours of work performed by particular

auditors and their hourly rates. Although the purpose of

these tables is more clear, it is incomprehensible that their

preparation could have consumed anywhere near eight hours.

The appropriate course in such circumstances is often to

allow a part of the requested time. Here, however, the

allowable amount of time--perhaps two hours--would be de

minimus, especially when considered in relation to the Trust-

ees' fee request as a whole. Accordingly, we see no need to

disturb the district court's decision to disallow this claim

altogether.

B. Attorney's Fees

The Trustees argued before the district court that their

attorney's hourly rate had been substantially discounted for

public-spirited reasons, and that they were therefore entitled

to an award of fees based on the market value of the services

he performed, not on the amount that he actually charged.

They asserted that the market value of their attorney's

services is $43,068.75, and sought an award in that amount.

The Trustees' attorney said at oral argument that the Funds

would remit to him any amount awarded in excess of his

actual fees.5

The district court concluded that, despite some authority

permitting plaintiffs to recover fees at market rates even if

they actually paid their counsel lesser amounts, see, e.g.,

Covington, 57 F.3d at 1107, such an exception is limited to

awards of fees under 42 U.S.C. s 1988 (the governing statute

in Covington), and does not apply to this case. Accordingly,

the district court awarded only the amount actually charged

by the Trustees' attorney, $17,775.

__________

5 We therefore need not consider the potential applicability of

National Treasury Employees Union v. United States Department

of the Treasury, 656 F.2d 848 (D.C. Cir. 1981), which found, citing

the restrictions on fee-splitting in the ABA's Code of Professional

Responsibility, that it was impermissible to make an award of

attorney's fees to a union in excess of the actual cost to the union of

the attorney's services. See id. at 851-53; but cf. ABA Comm. on

Ethics and Professional Responsibility, Formal Op. 93-374 (1993)

(interpreting Model Rule of Professional Conduct 5.4 to permit the

sharing of court-awarded fees for a pro bono representation be-

tween an attorney and a non-profit client).

We begin by assuming that the Trustees' attorney, for

public-spirited reasons, provided his services to the Trustees

at a discount. Assuming this to be the case, we find the

Trustees entitled to a fee award at the market value of their

services, rather than at the actual rate they were charged.

We then discuss how the district court is to decide whether

the fee charged did in fact incorporate a public-spirited

discount, and, if so, how it should determine the market rate

in making the award in this case.

1. Market Rate or Actual Rate?

ERISA provides that, in actions to collect unpaid contribu-

tions in which the plan is successful, the court "shall award to

the plan ... (D) reasonable attorney's fees and costs of the

action, to be paid by the defendant." 29 U.S.C. s 1132(g)(2).

The usual method of calculating reasonable attorney's fees is

to multiply the hours reasonably expended in the litigation by

a reasonable hourly fee, producing the "lodestar" amount.

See Pennsylvania v. Delaware Valley Citizens' Council for

Clean Air, 478 U.S. 546, 564 (1986) ("Delaware Valley" ).

This amount may then be adjusted by a multiplier "in certain

'rare' and 'exceptional' cases," see id. at 565 (quoting Blum v.

Stenson, 465 U.S. 886, 898-901 (1984)), although there is a

"strong presumption that the lodestar figure ... represents a

'reasonable' fee." Id.

The issue we are concerned with here is what constitutes a

"reasonable hourly fee" for purposes of the lodestar calcula-

tion. This court held in Save Our Cumberland Mountains,

Inc. v. Hodel, 857 F.2d 1516 (D.C. Cir. 1988) (in banc)

("SOCM "), and reaffirmed in Covington, 57 F.3d at 1107, that

a party whose attorney charges a discounted rate for public-

spirited reasons may nevertheless receive an award of fees at

market rates. The rationale of those cases is not, as the

district court concluded, limited to actions under section 1988;

indeed, although SOCM drew extensively on the legislative

history of section 1988, SOCM itself involved an award under

a fee-shifting provision of the Surface Mining Control and

Reclamation Act. SOCM applied section 1988 jurisprudence

to the interpretation of this statute on the authority of

Delaware Valley, in which the Supreme Court found that it

was appropriate to apply section 1988 caselaw in construing a

fee-shifting provision of the Clean Air Act because both

provisions had as their "common purpose" to "promote citizen

enforcement of important federal policies." 478 U.S. at 560;

see also SOCM, 857 F.2d at 1519 n.1 (citing the panel opinion

in that case, Save Our Cumberland Mountains, Inc. v. Hodel,

826 F.2d 43, 47 (D.C. Cir. 1987), which in turn cited this

passage of Delaware Valley ).

Delaware Valley thus endorses the application of law devel-

oped under section 1988 to other fee-shifting provisions that

have the same citizen-enforcement purpose. Since Delaware

Valley, the Court has twice clarified when it is appropriate to

apply caselaw developed under one fee-shifting provision to

another such provision. First, in Independent Federation of

Flight Attendants v. Zipes, 491 U.S. 754 (1989), the Court

observed that "fee-shifting statutes' similar language is a

strong indication that they are to be interpreted alike," and

drew on caselaw under one fee-shifting provision of the Civil

Rights Act of 1964 in interpreting another fee-shifting provi-

sion of the same statute. Id. at 758 n.2.

Conversely, in Fogerty v. Fantasy, Inc., 510 U.S. 517

(1994), the Court found that the "normal indication" of Zipes

could be "overborne" if the factors that justify a fee-shifting

rule in one context, such as the purpose or legislative history

of a statute, are absent in another. Id. at 523. Fogerty

involved the interpretation of 17 U.S.C. s 505, a fee-shifting

statute applicable to copyright infringement actions. The

wording of this provision is virtually identical to that of a fee-

shifting provision for Title VII of the Civil Rights Act of 1964,

42 U.S.C. s 2000e-5(k). Under caselaw interpreting section

2000e-5(k), there is a presumption that prevailing plaintiffs--

but not prevailing defendants--will receive an award of fees.

See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418

(1978). But the Fogerty Court found that it was not appro-

priate to apply the section 2000e-5(k) presumption to section

505, despite the similarity of language between the two

provisions, because there was no indication in section 505's

legislative history that Congress intended plaintiffs and de-

fendants to be treated differently for purposes of fee awards.

The Court also concluded that the purpose of the Copyright

Act--encouraging the production of creative works--is not

obviously served by favoring plaintiffs over defendants in

copyright infringement actions, especially given that "corpo-

rate behemoths" and "starving artists" are to be found among

both the plaintiffs and the defendants in infringement actions.

510 U.S. at 524 (citation omitted).

The inquiry prescribed by Zipes, Fogerty and Delaware

Valley does not differ that much from our usual processes of

statutory interpretation. The first step, of course, is to

consult the text of the statute; thus, Zipes' s rule that "fee-

shifting statutes' similar language is a strong indication that

they are to be interpreted alike," 491 U.S. at 758 n.2. The

next step is to consider the statute's purpose, structure, and

legislative history; this explains Fogerty 's rule that the "nor-

mal indication" of Zipes can in some circumstances be "over-

borne" on the basis of contextual evidence. 510 U.S. at 523.

Delaware Valley comes into play at this stage; it defines one

category of statutes--those intended to "promote citizen en-

forcement of important federal policies," 478 U.S. at 560--as

having a "common purpose" and therefore presumptively to

be interpreted similarly. See Lyle v. Food Lion, Inc., 954

F.2d 984, 988 n.1 (4th Cir. 1992) (citing Delaware Valley in

applying section 1988 caselaw to a fee-shifting provision of the

Fair Labor Standards Act).6

Should our case fit securely within Delaware Valley, our

analysis would be at an end, as SOCM would apply directly.

__________

6 Delaware Valley 's suggestion that a broad group of fee-shifting

provisions should all be subject to the same set of legal standards

may also have been based on the assumption that this would limit

parties' incentives to litigate fee disputes. Cf. Hensley v. Ecker-

hart, 461 U.S. 424, 455 (1983) (Brennan, J., concurring in part and

dissenting in part) (comparing appellate litigation of fee disputes to

"a Frankenstein's monster" that "meanders its well-intentioned way

through the legal landscape leaving waste and confusion (not to

mention circuit splits) in its wake"). In this respect, then, the

interpretation of fee-shifting statutes may differ from the usual

practice of statutory interpretation.

But, alas, it is not that easy. Section 1132(g)(2) is not

intended to promote enforcement of important federal policies

by "citizens," because recoveries under section 1132(g)(2) are

limited to plan fiduciaries, see 29 U.S.C. s 1132(g)(2) ("In any

action under this subchapter by a fiduciary for or on behalf of

a plan ...") (emphasis added), a group that at first glance

seems less in need of favorable fee-shifting rules than the

citizenry at large.

That section 1132(g)(2) does not fit squarely within the four

corners of Delaware Valley does not necessarily foreclose the

application of SOCM; it does, however, require that we

consider the specific text and purposes of section 1132(g)(2) to

decide whether SOCM 's market-rate standard applies. We

turn to Zipes and Fogerty for guidance. As in Zipes, the text

of section 1132(g)(2) does parallel that of section 1988; both

provide for a "reasonable" fee. Next, as Fogerty commands,

we turn to the statute's purposes and legislative history to see

whether the presumption that section 1132(g)(2) is to be

interpreted in line with section 1988 is "overborne" by con-

trary evidence.

Section 1132(g)(2) was enacted as part of the Multiemploy-

er Pension Plan Amendments Act of 1980 ("MPPAA"). In

enacting the MPPAA, Congress was responding to an in-

crease in the financial instability of multiemployer pension

plans, a problem it believed would continue to escalate unless

action was taken. H.R. Rep. No. 96-869, pt. 1 at 52-57 (1980)

("House Report"). The MPPAA put into place a number of

measures intended to "protect retirees and workers who are

participants in [multiemployer pension] plans against the loss

of their pensions," id. at 51, including provisions that altered

the funding requirements for multiemployer plans, required

withdrawing employers to contribute to a plan's unfunded

obligations, and adjusted the insurance provided by the Pen-

sion Benefit Guaranty Corporation. See id. at 65-70; see

also Milwaukee Brewery Workers' Pension Plan v. Jos.

Schlitz Brewing Company, 115 S. Ct. 981, 985 (1995) (review-

ing Congress's goals in enacting the MPPAA).

Although most of the provisions of the MPPAA as enacted

tracked the bill that originated in the House of Representa-

tives, H.R. 3094, the language of section 1132(g)(2) originated

in the Senate bill, S. 1076. The following passage explains

the Senate's understanding of the meaning of its language:

Delinquencies of employers in making required contri-

butions are a serious problem for most multiemployer

plans. Failure of employers to make promised contribu-

tions in a timely fashion imposes a variety of costs on

plans. While contributions remain unpaid, the plan loses

the benefit of investment income that could have been

earned if the past due amounts had been received and

invested on time. Moreover, additional administrative

costs are incurred in detecting and collecting delinquen-

cies. Attorneys fees and other legal costs arise in con-

nection with collection efforts.

These costs detract from the ability of plans to formu-

late or meet funding standards and adversely affect the

financial health of plans. Participants and beneficiaries

of plans as well as employers who honor their obligation

to contribute in a timely fashion bear the heavy cost of

delinquencies in the form of lower benefits and higher

contribution rates. Moreover, in the context of this

legislation, uncollected delinquencies can add to the un-

funded liability of the plan and thereby increase the

potential withdrawal liability for all employers.

Recourse available under current law for collecting

delinquent contributions is insufficient and unnecessarily

cumbersome and costly. Some simple collection actions

brought by plan trustees have been converted into

lengthy, costly and complex litigation concerning claims

and defenses unrelated to the employer's promise and

the plans' entitlement to the contributions. This should

not be the case. Federal pension law must permit

trustees of plans to recover delinquent contributions

efficaciously. Sound national pension policy demands

that employers who enter into agreements providing for

pension contributions not be permitted to repudiate their

pension promises.

The public policy of this legislation to foster the pres-

ervation of the private multiemployer plan system man-

dates that provision be made to discourage delinquencies

and simplify delinquency collection. The bill imposes a

Federal statutory duty to contribute on employers that

are already contractually obligated to make contributions

to multiemployer plans. A plan sponsor that prevails in

any action to collect delinquent contributions will be

entitled to recover the delinquent contributions, court

costs, attorney's fees, and double interest on the contri-

butions owed. The intent of this section is to promote

the prompt payment of contributions and assist plans in

recovering the costs incurred in connection with delin-

quencies.

Staff of Senate Committee on Labor and Human Resources,

96th Cong., 2d Sess., S. 1076: The Multiemployer Pension

Plan Amendments Act of 1980: Summary and Analysis of

Consideration, at 43-44 (Comm. Print 1980) (hereinafter

"Senate Committee Print").7 In the debates surrounding the

enactment of the final version of the MPPAA, Representative

Thompson, one of the sponsors of H.R. 3094, repeated this

passage essentially verbatim on the floor of the House. 125

Cong. Rec. 23,038, 23,039 (1980).

We draw three lessons from section 1132(g)(2)'s text, pur-

poses, and legislative history.8 First, in enacting section

__________

7 The district court in Central States, Southeast and Southwest

Areas Pension Fund v. Alco Express Co., 522 F. Supp. 919, 927-28

(E.D. Mich. 1981) ("Central States"), in the course of a detailed

review of the legislative history of section 1132(g)(2), explained that

"[b]ecause S. 1076 was also referred to the Senate Committee on

Finance there was no formal committee report, since Senate Rule

XXVII requires a joint report under such circumstances." 522

F. Supp. at 928 n.11.

8 The above-quoted legislative history of section 1132(g)(2) refers

in places to "pension plans," presumably because most of the

MPPAA related only to pension plans, not to welfare benefit plans,

the other type of employee benefit plan covered by ERISA. See

29 U.S.C. s 1002(3). The Funds are both welfare benefit plans.

1132(g)(2), Congress had a strong goal of "discourag[ing]

delinquencies" and rendering delinquency collection less

"cumbersome and costly." Senate Committee Print, at 44.

Deterring parties from prolonging litigation is an important

goal of most fee-shifting provisions. Here, however, Con-

gress's desire to achieve this goal was especially strong.

Section 1132(g)(2) provides that the courts "shall" award fees

to fiduciaries when judgments are awarded in their favor in

delinquent-contribution actions. It makes no provision for

prevailing defendants.9

In statutes protecting economic interests, mandatory fee-

shifting is uncommon, and the same standards are usually

applied to fee awards to both plaintiffs and defendants. See,

e.g., Fogerty, 510 U.S. at 534 (concluding that fee-shifting

under the Copyright Act is discretionary, and that the same

standard should be applied in considering fee awards to both

parties); id. at 525 n.12 (indicating that "courts have general-

ly awarded attorney's fees in an evenhanded manner based on

the same criteria" under the trademark and patent laws);

Eddy v. Colonial Life Ins. Co. of America, 59 F.3d 201, 205

(D.C. Cir. 1995) ("In general, statutes protecting economic

interests that contain fee-shifting provisions vesting discre-

tion in the district court do not create a presumption that a

prevailing party will be awarded fees."). Congress's express

requirement that the courts award fees to fiduciaries who win

delinquent-contribution actions demonstrates an unusually

powerful intent to deter excessive litigation by defendants. A

rule that requires employers to pay the market rate in cases

in which an attorney has discounted her fees for public-

spirited reasons surely serves this goal better than does one

__________

Congress clearly signalled, however, that section 1132(g)(2) be

interpreted in the same way whether welfare or pension plans were

involved. The text of section 1132(g)(2) as enacted is equally

applicable to both types of plans, as was the draft provision that

was before the committee; much of the above-quoted legislative

history is likewise equally applicable to both types of plans.

9 They must therefore invoke 29 U.S.C. s 1132(g)(1), which allows

the court to make a fee award "in its discretion." Id.

under which only fees actually paid out are recoverable. If a

plan receives legal services from its attorneys for free, then

the actual-cost rule would require the delinquent employer to

pay nothing--a result clearly inconsistent both with Con-

gress's desire to deter employers from late payment and with

the statute's requirement that the court "shall" award "rea-

sonable attorney's fees." Likewise, the fact that a plan

receives its legal services at a deep discount should not justify

a similar discount of section 1132(g)(2)'s deterrent effect.10

A second important goal of fee-shifting provisions is to

enable parties to hire "competent counsel" to pursue their

cases. SOCM, 857 F.2d at 1521 (emphasis omitted) (citing

section 1988's legislative history); see also Kay v. Ehrler, 499

U.S. 432, 436 & n.8 (1991). Although this goal is not explicit-

ly stated in the legislative history of section 1132(g)(2), Con-

gress did express a strong desire to "simplify delinquency

collection" and "assist plans in recovering the costs incurred

in connection with delinquencies," Senate Committee Print, at

44, goals that are best served if plan fiduciaries are able to

hire competent counsel. Again, a fee-shifting rule that re-

quires delinquent employers to pay market rates serves this

purpose better than does one under which they pay only the

billed rate.11 In this case, the plan has agreed to pass on the

entire amount of any fee award to its attorneys. Such an

arrangement obviously improves the ability of plans to obtain

__________

10 Indeed, the plans that are closest to insolvency, and therefore

need the deterrent effect of section 1132(g)(2) the most, would be

most harmed by an actual-cost rule, as they are also the group that

is likeliest to seek, and obtain, discounted legal services.

11 Our dissenting colleague says that we assume mistakenly that

"expensive counsel necessarily equals competent counsel." Diss.

op. at 2. We do not deny that there exist expensive, incompetent

counsel; but there is ordinarily a correlation between an attorney's

rates and her competence. The lodestar approach to setting legal

fees is premised on the idea that there is a market for legal

services, in which an attorney's hourly rate is correlated with her

abilities. SOCM similarly assumed that market rate fees are

needed to attract competent attorneys in complex cases. See 857

F.2d at 1521.

high-quality legal representation in the first instance. In-

deed, a plan that is near insolvency--as one of the plans at

issue in this case, the Legal Services Plan, apparently was in

early 199512--might otherwise find it quite difficult to secure

the assistance of competent legal counsel in returning it to

stability. On this point, we note that Congress enacted the

MPPAA in order to stabilize financially ailing ERISA plans,

see House Report, at 52-57; Senate Committee Print, at 1,

and intended section 1132(g)(2) to further that objective, see

Senate Committee Print, at 44 (referring to "the public policy

of this legislation to foster the preservation of the private

multiemployer plan system").

Congress's preeminent purpose, in enacting section

1132(g)(2), to keep ERISA plans solvent also points us in the

direction of reading section 1132(g)(2) in a way that facili-

tates, rather than impedes, private charitable donations to

plans. If an attorney has made a public-spirited decision to

charge a plan a discounted rate, a delinquent employer should

not receive the benefit of this decision. Judge Easterbrook in

the Seventh Circuit has endorsed this point:

Some lawyers dedicate their professional lives to causes

they find admirable and worthy of support--to legal

services for the poor, to the representation of unions.

These lawyers are making contributions to their favored

causes, not in money, but in time.... Using opportunity

cost as the measure of legal services means that the

value of the lawyer's gift inures to the favored cause, and

not to the adversary in litigation.

Barrow v. Falck, 977 F.2d 1100, 1105 (7th Cir. 1992). In this

case, of course, the Trustees' attorney would receive any fees

in excess of the amount billed; but the Trustees would benefit

indirectly from such an award (as the award would presum-

ably make it easier for them to obtain competent counsel in

__________

12 In January, 1995, the Legal Services Fund's assets stood at

$1,218. The Fund's present attorneys responded by adjusting their

billing; they charged only when collection efforts were successful,

and asked only their "regular hourly rate or a percentage of the

amount actually collected, whichever was less."

the future), and JPR would not benefit at all.13 This ap-

proach also accords with the Supreme Court's consistent rule

that under fee-shifting statutes legal services are to be given

their market value, irrespective of the contractual arrange-

ments between attorney and client. See Blanchard v. Berger-

on, 489 U.S. 87, 93 (1989) ("Should a fee agreement provide

less than a reasonable fee ..., the defendant should never-

theless be required to pay the higher [market-based]

amount."); Blum, 465 U.S. at 893-96; see also Central States,

Southeast and Southwest Areas Pension Fund v. Central

Cartage Co., 76 F.3d 114, 116 (7th Cir.), cert. denied, 117 S.

Ct. 56 (1996) (citing this principle in reading section

1132(g)(2) to permit an award of attorney's fees at market

rates to an organization represented by salaried staff coun-

sel); Louisiana Power & Light Co. v. Kellstrom, 50 F.3d 319,

328 (5th Cir. 1995).

JPR argues that the singular purpose of section 1132(g)(2)

is to make plans whole, and that a fee award that exceeds the

amount actually charged by a plan's attorneys is inconsistent

with this purpose. Making plans whole is indeed one impor-

tant purpose of section 1132(g)(2). See Senate Committee

Print, at 44 (stating that the section's intent is to "assist plans

in recovering the costs incurred in connection with delinquen-

cies"). But, as we have established, section 1132(g)(2) has

other, equally important goals, which are best served by a

__________

13 Under the collateral-source rule, "[p]ayments made to or bene-

fits conferred on the injured party from other sources are not

credited against the tortfeasor's liability, although they cover all or

a part of the harm for which the tortfeasor is liable." Restatement

(Second) of Torts s 920A (1979). This rule would seem to apply by

analogy to in-kind donations of an attorney's services. Charitable

contributions are ordinarily treated as a collateral source like any

other, for precisely the reason identified by Judge Easterbrook, the

desire to ensure that the benefit of the gift accrues to the donee,

not to the tortfeasor. See 4 Fowler V. Harper et al, The Law of

Torts s 25.22 at 661-63 (2d ed. 1986); see also Hudson v. Lazarus,

217 F.2d 344, 346-47 (D.C. Cir. 1954) (in a case under D.C. law,

applying the collateral-source rule to free care received at a veter-

ans' hospital).

market-rate award. Furthermore, there is a real sense in

which a market-rate award may be a peculiarly appropriate

instrument by which to make the Funds whole. An ERISA

plan may have only a finite pool of discounted or free legal

assistance available to it; once this pool is used up, the plan

will then be required to pay higher rates for legal services.

Compelling a plan to draw on its limited stock of discounted

legal help thus has meaningful costs to the plan, and should

be compensable.14

We also reject JPR's argument that this case is governed

by Eddy v. Colonial Life Ins. Co. of America, 59 F.3d 201

(D.C. Cir. 1995). In Eddy, we interpreted a different ERISA

fee-shifting provision, section 1132(g)(1). Under that provi-

sion, in any action under subchapter I of ERISA "by a

participant, beneficiary, or fiduciary," a court may, "in its

discretion," make an award of a "reasonable attorney's fee

and costs of action to either party." 29 U.S.C. s 1132(g)(1)

(1994). Subchapter I of ERISA can support a wide range of

actions, including actions to enforce Plan terms or to recover

benefits, suits for breach of fiduciary duty, actions to obtain

information from plans, and equitable proceedings. See 29

U.S.C. ss 1132(a), 1132(c). Eddy concluded that the pre-

sumption applied under civil-rights fee-shifting statutes that

successful plaintiffs should receive an attorney's fee award

should not apply to section 1132(g)(1). JPR points to Eddy's

observation that ERISA protects economic interests, while

the civil rights statutes protect "dignitary as well as economic

interests," 59 F.3d at 204, and claims that the same logic

argues against applying SOCM to this case.

Eddy was a straightforward application of Fogerty's com-

mand to consider the purposes of a fee-shifting statute in

__________

14 For this reason, the dissent is mistaken in suggesting that we

are offering a "windfall" to those plans that decide to keep the

excess of a fee award over the amount billed. Diss. op. at 2. If

only a limited amount of discounted legal help is available to a plan,

then drawing on that pool of legal help has an opportunity cost to

the plan. When the pool runs out, the plan will need the supposed

"windfall" to pay its lawyers.

deciding whether to apply caselaw developed under another

fee-shifting provision. See Eddy, 59 F.3d at 205 (citing

Fogerty ). ERISA's legislative history contained no evidence

that Congress's goals in enacting section 1132(g)(1) would

have been furthered by establishing a presumption in favor of

awards to successful plaintiffs. See id. (This is no surprise,

given the smorgasbord of proceedings in which section

1132(g)(1) may be invoked.) In the absence of legislative

history, Eddy considered the broad purposes of ERISA; it

cited the civil rights laws as an example of a category of

statute that would justify a presumption in favor of an award

of fees, and contrasted the dignitary interests protected by

the civil rights statutes with the economic interests furthered

by ERISA. In this case, by contrast, the legislative history

and specific purposes of section 1132(g)(2) both point towards

allowing market-rate fee awards. We therefore need not, as

we did in Eddy, resort to considering the general nature of

ERISA as a statute protecting economic interests.

2. Detecting Public-Spirited Discounts

Having decided that the policies underlying section

1132(g)(2) support an allowance to the Trustees of fees at

market rates, assuming the fees actually paid were discount-

ed for public-spirited reasons, the task remains of deciding

whether the fees paid did in fact reflect a public-spirited

discount by the counsel. We leave this task initially for the

district court, with a brief discussion of the guiding principles

of law.

We explained in Covington that the fee applicant bears the

burden of demonstrating that a fee incorporates a public-

spirited discount:

[T]he attorney must show that his or her custom of

charging reduced rates is in fact attributable to "public

spiritedness." Implicit in this line of inquiry is the

assumption that the law was not written to subsidize

attorneys who charge below-market rates because they

cannot command anything more. And a defendant is

free to rebut a fee claim on these terms in cases in which

this issue is posed. We recognize that, in some cases,

this may be a difficult line of inquiry, for an attorney who

cannot command market rates invariably will have a

"custom" of charging rates below the market. This

problem is diminished with respect to attorneys who

charge variable rates (both at and below the market, with

the latter attributable to public-spirited goals).

Covington, 57 F.3d at 1108. We concluded that it was within

the district court's "sound discretion" to determine whether

an attorney had public-spirited reasons for charging reduced

rates. Id.

Deciding whether an attorney has a public-spirited reason

for a representation should not be all that difficult. An

important part of this inquiry will focus on whether the fee

charged in fact differs significantly from the market value of

the attorney's services. We discuss the process of deciding

the correct market rate for an attorney's services in the next

section of this opinion; because the district court may find it

easier to decide the market value of an attorney's work than

to analyze her motivations, it may be appropriate to perform

this analysis first.

Turning to the question of the attorney's motivations, we

emphasize that it is only necessary for the attorney to show

that public-spiritedness was a principal reason for the dis-

count, and not that it was the only reason. It is rare to find a

person who has only one reason for the things she does, and

the presence of other motivations need not vitiate an attor-

ney's public-spiritedness. Client development and attorney

training, for instance, are accepted corollaries of pro bono

representation. See Esther F. Lardent, Structuring Law

Firm Pro Bono Programs, The Law Firm and the Public

Good 59, 72 (Robert A. Katzmann ed., 1995). Nor does the

possibility of a fee award necessarily taint an attorney's

motives. Such an award will only be forthcoming if the

attorney wins, and will be no more than the amount the

attorney could have obtained for her time on the free market.

An attorney who was principally motivated by the desire to

make money would not rely on such awards, but would seek

out clients who were able to pay the full market rate, so that

she could be assured of being paid at that rate whether she

won or lost.

As officers of the court, attorneys will presumably not be

inclined to misrepresent their reasons for granting a discount,

and we assume that it will only rarely be necessary to second-

guess those reasons. An affidavit from the client may also

help to establish that the client understood that the fee it was

being charged reflected a public-spirited discount, even if it

may not have been expressly stated that this was the case.

In some circumstances, however, there may be a clear expla-

nation for a discount other than a desire to serve the public

good (or market forces, which are taken into account in the

market-rate inquiry). For instance, an attorney who gives a

discount to a relative would need to make a strong showing

that the discount was actually motivated by the public inter-

est, and not by familial ties. We leave to the district court, in

the first instance, the task of deciding the motivations of the

Funds' attorneys.

3. Determining the Market Rate

As we explained in Covington, a party who avers that the

rate charged by her attorneys incorporated a public-spirited

discount must offer evidence as to the correct market rate for

the attorneys' services. The party must both "offer evidence

to demonstrate [her] attorneys' experience, skill, reputation,

and the complexity of the case" and "produce data concerning

the prevailing market rates in the relevant community for

attorneys of reasonably comparable skill, experience, and

reputation." 57 F.3d at 1108. In setting the market rate, the

district court should consider what rate would be commensu-

rate with the attorneys' skill and experience, and with the

quality of the attorneys' work. To cite one of the dissent's

examples, if a firm uses a case as a training-ground for young

attorneys, the district court might find that the discounted

rate charged by the firm reflected the attorneys' inexperi-

ence, and is the actual market value of the attorneys' services.

Because the district court is most familiar with the quality of

the attorneys' work, we will defer to its reasonable assess-

ment of that work's market value.

Both the Trustees and JPR submitted evidence on prevail-

ing market rates and on the skill and experience of the

Funds' attorneys. Because the district court did not reach

the question of the appropriate market rate, we will not

discuss these two factors further; Covington contains a de-

tailed discussion of these questions. See Covington, 57 F.3d

at 1108-10. We leave the issue of the prevailing market rate

to the initial discretion of the district court.

C. Fees for This Appeal

Finally, the Trustees seek an award of the attorney's fees

expended in prosecuting this appeal. As a rule, in fee

disputes, if an award of attorney's fees is appropriate in the

underlying litigation, such an award is also appropriate for a

successful appeal (or defense of an appeal) of an issue relating

to the fee award itself. This is so because, for fee-shifting

provisions to serve their purposes (which may include, de-

pending on the particular provision at issue, improving access

to the courts, encouraging or discouraging certain types of

litigation, or making litigants whole), their beneficiaries must

be assured that they will be able to collect the fee awards that

they are due. See American Federation of Government

Employees v. FLRA, 994 F.2d 20, 22 (D.C. Cir. 1993) ("No

matter what the purpose of an attorney's fee provision ...

the availability of 'fees for fees' is essential to carrying out

Congress's goal in including the provision in the first place.").

This rule is fully applicable to fee awards under section

1132(g)(2). See Building Service Local 47 Cleaning Contrac-

tors Pension Plan v. Grandview Raceway, 46 F.3d 1392, 1404

(6th Cir.1995) (finding that fees for successful appeals of

attorney's fee disputes are recoverable under section

1132(g)(2)); Operating Engineers Pension Trusts v. B & E

Backhoe, Inc., 911 F.2d 1347, 1356 (9th Cir. 1990) (same).

The Trustees cannot be said to be successful in their appeal

of the attorney's fee issue, however, until they establish on

remand that their attorneys did indeed discount their fees for

public-spirited reasons. Cf. Hanrahan v. Hampton, 446 U.S.

754, 758-59 (1980) (party is a "prevailing party" under section

1988 only by virtue of success on the merits, not success in

obtaining remand on appeal); Waterman Steamship Corp. v.

Maritime Subsidy Board, 901 F.2d 1119, 1122 (D.C. Cir.

1990) (in a fee-shifting case under the Equal Access to Justice

Act, observing that "award of EAJA fees for corrective

efforts that yield no real-world benefit would reduce the

normal deterrent to litigative nit-picking").15 If the Trustees

do meet success on remand, the district court should make an

additional award of fees reflecting those legal expenses the

Trustees incurred in their appeal of the attorney's fees issue

(but not that of the audit fees issue).

III. Conclusion

We affirm the district court's conclusion that the Trustees

were not entitled to audit fees. The language of the Default

and Payment Clause cited by the Trustees does not cover the

routine audit that is at issue in this case. As to the auditor's

services in the litigation before the district court, we affirm

the district court's conclusion that the Trustees failed to

provide adequate documentation of the need for this work.

We conclude, however, that the district court was mistaken

in finding that section 1132(g)(2) necessarily limits the Trust-

ees to recovering their actual legal fees. If the Trustees can

establish that their attorneys charged them a discounted rate

for public-spirited reasons, they may recover a fee award at

the market rate, rather than at actual cost. If the district

court finds on remand that the Trustees are entitled to an

__________

15 Section 1132(g)(2) does provide that "in any action under this

subchapter ... in which a judgment in favor of the plan is awarded,

the court shall award the plan ... (D) reasonable attorney's fees

and costs of the action...." 29 U.S.C. s 1132(g)(2). The decision

of this court vacating and remanding the district court's ruling on

the fees issue is denominated a "judgment," see Fed. R. App. P. 36,

and could be said to be "in favor of the plan" in the sense that the

Trustees have achieved the relief that they sought from this court

on the issue they appealed. But a more natural reading of "judg-

ment" in this context limits it to the original proceeding before the

district court, in view of the subsequent listing of the content of the

award, which includes "the unpaid contributions," interest, and

liquidated damages, in addition to "attorney's fees and costs of the

action."

award of fees at market rates, the district court should also

make an award of fees incurred by the Trustees in bringing

their appeal of the attorney's fees issue.

We therefore vacate the district court's award of attorney's

fees, and remand for proceedings consistent with this opinion.

So ordered.

Randolph, Circuit Judge, concurring in part and dissent-

ing in part: I dissent from the portion of the majority

opinion relating to attorney's fees. In my view, employee

plans are not entitled to recover more than their actual cost

of legal services.

When a plan wins its case, the court "shall award" the plan

"reasonable attorney's fees and costs of the action, to be paid

by the defendant," 29 U.S.C. s 1132(g)(2). It is true that

language like this appears in 42 U.S.C. s 1988 (and countless

other fee-shifting statutes); that Blum v. Stenson, 465 U.S.

886 (1984), interpreted s 1988 to mean that a "reasonable"

fee should be calculated by using the market hourly rate

rather than the rate actually charged; and that Independent

Federation of Flight Attendants v. Zipes, 491 U.S. 754, 758

n.2 (1989), said that similarities in the language of fee-shifting

statutes are a "strong" indicator of similarities in meaning.

But Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994),

"squelched"--to use the Seventh Circuit's word--"[a]ny ten-

dency to treat all attorneys' fees statutes as if they were

insignificant variations on s 1988." Stomper v. Amalgamated

Transit Union, Local 241, 27 F.3d 316, 318 (7th Cir. 1994).

After Fogerty, "[d]ifferent statutes receive individual analy-

sis," or should. Id.

As to the particular statute before us, it seems to me that a

cost-of-service award, in combination with the other provi-

sions in s 1132(g)(2), fully accomplishes "Congress's preemi-

nent purpose ... to keep ERISA plans solvent," maj. op. at

18. Victorious plans are entitled not only to reasonable

attorney's fees and the amount of the delinquent contribu-

tions, but also to double interest on those contributions and to

any other "legal and equitable relief ... the court deems

appropriate." 29 U.S.C. s 1132(g)(2)(A)-(E). In the face of

provisions furnishing ample deterrence for delinquent em-

ployers and ample compensation to victorious plans, I see no

good reason why a plan should also be awarded more than its

lawyers charged it. The majority thinks that unless market-

based fees are awarded, plans will be unable to hire "compe-

tent counsel." Maj. op. at 17. This strikes me as doubly

mistaken. For one thing it assumes that expensive counsel

necessarily equals competent counsel, an equation not borne

out by my experience. For another thing it contemplates

only one kind of fee arrangement--one requiring the client to

turn over the excess to its lawyer. We apparently have that

arrangement in this case. But in other cases the retainer

agreement may be such that the plan, rather than its below-

market-rate lawyer, keeps the windfall. I have no way of

knowing which is the more common fee agreement in these

sorts of cases and neither do the other judges on this court.

My colleagues charge the district court with the duty of

deciding whether the lawyers in this case gave the plan a

discount for "public-spirited reasons." This sounds like a rule

saying that market rates will be awarded only if the lawyers

never expected to receive market rates. A lawyer cannot be

acting out of public spirit in a case, I suppose, if he hopes or

expects to collect the full going rate. At least that is the

theory. Yet once the majority's rule goes into place, every

reasonable lawyer representing an employee benefit plan

against an employer--reasonable because the lawyer has read

my colleagues' opinion--will hope to recover fees at the

market rate. And that is scarcely the only difficulty. Con-

sider the conundrum posed by lawyers who had mixed mo-

tives for taking the case at less than the market rate.

Suppose, for instance, the law firm thought that by represent-

ing the plan at a discount, it was doing some public good;

that besides, the case would help fill in some gaps on the

firm's timesheets; that the case would be a useful training

ground for a young associate or two; that taking the case

might lead to, or help retain, full-fee paying clients; and that

if the firm won, it would wind up getting the going rate

anyway. I suspect that such a range of motives would

typically be uncovered if one probed deeply enough. Then no

one would be able to say where "public spiritedness" ended

and self interest began, or what imaginary scale determines

which outweighs the other. This only reinforces my belief

that s 1132(g)(2)--correctly interpreted--permits victorious

plans to be reimbursed for no more than their cost of legal

services. But as between a rule awarding market rates only

when the below-market lawyer satisfies the majority's motiva-

tional criterion, and a rule awarding market rates in every

case, the latter is clearly the lesser evil, if for no other reason

than it is better to clear up a mess than to create one.