"court may consider contingency, but only as one of many competing factors in arriving at a reasonable fee"
How later courts described this case
- "court may consider contingency, but only as one of many competing factors in arriving at a reasonable fee"
- incorrect application of law is an abuse of discretion
- review is for abuse of discretion
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789 (2002)
48 F.3d 456, 457 (9th Cir.1995), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 799, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002).
The opinion
*461 LEAVY, Circuit Judge,
dissenting.
Judge Hogan followed the method of calculating attorney’s fees by starting with the lodestar as required by Starr v. Bowen, 831 F.2d 872 (9th Cir.1987), and Straw v. Bowen, 866 F.2d 1167 (9th Cir.1989). He then considered the factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.1975), which include contingency fee contracts as a consideration. In light of Judge Hogan’s analysis, I cannot concur in the majority’s decision to remand for a recalculation.
The majority remands, not because the district court incorrectly departed from our precedent by considering the contingency fee contract presumptively reasonable, but on the basis that the district court failed to consider the agreement at all. Specifically, the majority finds that the “district court apparently based its decision on a belief that it is impermissible to afford any consideration at all to contingency.” Op. at 460. The majority bases its conclusion on the fact that the district court cited to fee-shifting eases, although § 406(b)(1) is not a fee-shifting statute. Id. at 460. The district court’s analysis, however, clearly distinguished between fee-shifting and § 406(b)(1) eases. Having made the distinction, the district court then discussed the plaintiffs argument that his particular talents and exclusive practice warranted an enhancement. The record does not permit the conclusion that the district court rejected any consideration of the inherent contingency of this type of litigation, nor of the contingent fee contract at issue. Thus, the record does not permit the inference that the district court abused its discretion in finding $4,117.50 to be a reasonable fee. To the contrary, the record shows that the district court carefully considered the plaintiffs arguments as well as the settled Ninth Circuit precedent.
In my view, the district court is being told to consider what it has already considered. I would affirm.