holding that in determining the reasonableness of attorney's fees under federal fee shifting statutes, courts may not enhance the fee award above the "lodestar" amount to compensate attorneys for assuming the risk of receiving no payment for their services if the lawsuit failed
How later courts described this case
- holding that in determining the reasonableness of attorney's fees under federal fee shifting statutes, courts may not enhance the fee award above the "lodestar" amount to compensate attorneys for assuming the risk of receiving no payment for their services if the lawsuit failed
- stating that allegations of a subchapter III violation made § 6972(b) notice requirements inapplicable to entire “hybrid”12 suit so long as alleged RCRA- violations were “closely related,” such as claims that arise “from the operation of a single facility”
- explaining that "our case law construing what is a `reasonable' fee applies uniformly" to fee-shifting statutes that use similar language, including, inter alia, 42 U. S. C. § 1988 and 42 U. S. C. § 2000e-5(k) (Civil Rights Act of 1964)
- holding that the contingency aspect of a case cannot be considered when determining a statutory fee award
Written by the judges who cited it.
Later courts went against this
Questioned by Clarence Edgar Murphy v. Georgia Power Co., 247 F.3d 1313 (2001)
505 U.S. 557, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992), which called into question the use of contingency enhancements under federal fee-shifting statutes.
Questioned by Mangold v. California Public Utilities Commission, 67 F.3d 1470 (1995)
However, although Dague arguably calls into question California’s continued reliance on Serrano, we cannot decide that the California Supreme Court will necessarily adopt Dague as California law for its fee-shifting statutes.
Disagreed with by William Joyce v. Federated National Insurance Company, 228 So. 3d 1122 (2017)
We also reject Justice Scalia’s reasoning in Pague that enhancement for contingency “would likely duplicate in substantial part factors already subsumed in the lodestar.” 505 U.S. at 562, 112 S.Ct. 2638.
Disagreed with by Swedish Hospital Corp. v. Shalala, 1 F.3d 1261 (1993)
We disagree with the proposition that Burlington and King mandate an unenhanced lodestar approach in common fund cases.
Disagreed with by Guam Society of Obstetricians & Gynecologists v. Ada, 100 F.3d 691 (1996)
We disagree with defendants’ contention that" a multiplier may never be applied to increase a fee award after Dague.
Distinguished
Distinguished by Plas M. Allen v. Donna E. Shalala, Secretary of Health and Human Services, 48 F.3d 456 (1995)
However, Dague and Davis are inapplicable to the instant case.
The opinion
Justice O’Connor,
dissenting.
I continue to be of the view that in certain circumstances a “reasonable” attorney’s fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take a case in the first place. See Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 483 U.S. 711, 731-734 (1987) (Delaware Valley II) (O’Connor, J., concurring in part and concurring in judgment). As Justice Blackmun cogently explains, when an attorney must choose between two cases — one with a client who will pay the attorney’s fees win or lose and the other who can only promise the statutory compensation if the case is successful — the attorney will choose the fee-paying client, unless the contingency client can promise an enhancement of sufficient magnitude to justify the extra risk of nonpayment. Ante, at 568-569. Thus, a reasonable fee should be one that would “attract competent counsel,” Delaware Valley II, supra, at 733 (O’Connor, J., concurring in part and concurring in judgment), and in some markets this must include the assurance of a contingency enhancement if the plaintiff should prevail. I therefore dissent from the Court’s holding that a “reasonable” attorney’s fee can never include an enhancement for cases taken on contingency.
*576 In my view the promised enhancement should be “based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the 'riskiness’ of any particular ease.” 483 U. S., at 731 (emphasis omitted). As Justice Blackmun has shown, the Court’s reasons for rejecting a market-based approach do not stand up to scrutiny. Ante, at 574. Admittedly, the courts called upon to determine the enhancements appropriate for various markets would be required to make economic calculations based on less-than-perfect data. Yet that is also the case, for example, in inverse condemnation and antitrust cases, and the Court has never suggested that the difficulty of the task or possible inexactitude of the result justifies forgoing those calculations altogether. As Justice Blackmun notes, these initial hurdles would be overcome as the enhancements appropriate to various markets became settled in the district courts and courts of appeals. Ante, at 573.
In this case, the District Court determined that a 25% contingency enhancement was appropriate by reliance on the likelihood of success in the individual case. App. to Pet. for Cert. 132-133. The Court of Appeals affirmed on the basis of its holding in Friends of the Earth v. Eastman Kodak Co., 834 F. 2d 295 (CA2 1987), which asks simply whether, without the possibility of a fee enhancement, the prevailing party would not have been able to obtain competent counsel. 935 F. 2d 1343, 1360 (CA2 1991) (citing Friends of the Earth, supra). Although I believe that inquiry is part of the contingency enhancement determination, see Delaware Valley II, supra, at 733 (O’Connor, J., concurring in part and concurring in judgment), I also believe that it was error to base the degree of enhancement on ease-specific factors. Because I can find no market-specific support for the 25% enhancement figure in the affidavits submitted by respondents in support of the fee request, I would vacate the judgment affirming the fee award and remand for a market-based assessment of a suitable enhancement for contingency.