*1 order court’s Accordingly, decisions strategic their ord and petition habeas Peterka’s federal denying fall wide within evidence present such AFFIRMED. assis- professional of reasonable range state courts’ Accordingly, tance.5 failed to establish that Peterka
holdings respect in this assistance
ineffective to, an unreasonable contrary nor
neither of, federal clearly established
application
law. Charac- Peterka’s Good
C. Evidence of
ter A., by Linda his next friend KENNY argu to Peterka’s respect With B., by friend Winn, next her Kara by counsel were ineffective ment that his Maya C., by next Pace, her Linda present addition investigate and failing D., by Pace, her Phelicia friend Linda family relation loving of his al evidence E., Roth, Theresa Sabrina next friend character, again agree we good ships Silvey, next friend Rebecca her that Peterka failed state courts with the E., by friend Rebec- her next Korrina During performance. deficient establish F., by Silvey, Tanya next friend her ca evi presented phase, counsel penalty G., by next Huff, her Priscilla Carol testimony Peterka’s of through the dence H., Satchel, Roslyn Briana M. Friend and lov a loved that Peterka was mother Pace, on friend Linda her next family, that he was kind of his ing member of all and on behalf behalf their own animals, and that he was to others situated, similarly Plaintiffs- others a photo introduced person. Counsel good Appellees-Cross-Appellants, Fur assertions. illustrate album to these thermore, testified other witnesses two relationship loving Peterka’s about capacity PERDUE, Sonny in his official nature, caring family, gentle his
his Georgia, of State as Governor and charitable acts. deeds good and his Resources Department of Human could have pro Although other witnesses Martin, in Georgia, James State along the same testimony additional vided capacity as Commissioner his official the site of lines, far from many lived Re- Department Human ill and too trial, was and Peterka’s father Georgia, Divi- the State of sources of testify. The deci young to siblings his too Services, Family and Children sion witnesses to seek out additional sion not Jones, in her County, Beverly Fulton not consti does good Peterka’s character Director of capacity as official the state performance, tute deficient Family County Department of Fulton nei respect are in this conclusions courts’ County Services, DeKalb and Children ap to, unreasonable contrary nor an ther Drummond, in his offi- DFCS, Wayne of, Supreme Court cases. relevant plication prejudice failed to establish terka has to- review of the Alternatively, after careful II, con- at 237—is 890 So.2d prong,” Peterka properly con- tality the evidence that of, to, application Court, an unreasonable trary we Supreme by the Florida sidered as determined federal clearly law established Florida conclude cannot United States. i.e., Supreme Court of the by the that "Pe- holding on this Court’s issue— *2 capacity cial of the De Director County Department Family
Kalb Services,
and Children Defendants-
Appellants-Cross-Appellees, County, County,
Fulton DeKalb
Defendants.
Nos. 06-15874. Appeals,
United States Court of
Eleventh Circuit.
July *5 CARNES, HILL,
Before WILSON and Circuit Judges.
CARNES, Judge: Circuit When money asked how much would be him, enough for John D. Rockefeller re- portedly said: “Just a little bit more.”1 The attorneys for plaintiff class case want just more than a little bit more. They want a money lot more they than would receive from multiplying the num- they ber of hours worked this case rate charge. And the gave them a lot more— $4,500,000more—out pockets of the taxpayers Georgia.
Not caught up the district court’s spirit generosity with their money, the Georgia taxpayers (through governor their defendants) and other officials who are have appealed the attorneys’ fees award because of that multi-million dollar en- *6 hancement and for other reasons. The plaintiffs’ attorneys, convinced that generous court was not enough, have cross-appealed (through the class they represent), insisting deserve even $10,500,000 more than the total fees that the court awarded them.
I. Kenny A. eight and other plain named tiffs in this lawsuit are foster children in the custody of Georgia Department of Cohen, Mark H. Sanders, Troutman At- Human Resources. Kenny A. ex rel. lanta, GA, for Defendants-Appellants- Perdue, Winn v. F.Supp.2d Cross-Appellees. (N.D.Ga.2006) III). (Kenny A. In June Corey Fleming Hirokawa, Jeffrey O. 2002, on of a behalf class of all foster Bramlett, Bondurant, Elmore, Mixson & children Fulton and DeKalb Counties Atlanta, GA, for Plaintiffs-Appellees- and a of subclass African American foster Cross-Appellants. children, plaintiffs sued governor,
DHR, commissioner, its Fulton and De- Counties, Kalb each county’s department of family services, and children and the Sharp, Robert M. Legends The (1989). and Lore Wall Street Ninth, First, Four- and and their process Id. departments. of those of each director liberty, priva- to sys- rights alleged Amendment teenth complaint The at 1266-67. foster complaint counties’ The in the Id. association. cy, deficiencies temic and defi- These at 1267. Id. systems. class mem- care of the alleged violations also in- complaint, to the ciencies, according Adoption under the statutory rights bers’ cluded: Act of Welfare and Child Assistance (1) numbers excessive assigning 1994, as Placement Act the Multiethnic poorly and trained inadequately to cases periodic and early as violations well (2) caseworkers; not devel- supervised pro- and treatment diagnosis, screening, of foster number sufficient oping a The Act. Id. state Medicaid gram to ensure screened homes properly violations included asserted law claims (3) identi- safety; children’s plaintiff pro- due substantive members’ the class care for who could relatives fying adult rights under equal protection cess and to an alternative as children plaintiff Constitution, various violations of Georgia (4) institutions; impersonal strangers nuisance, statutes, and claims Georgia information relevant provide failing to contract, inadequate and and breach parents to foster services support and representation. legal ineffective placements foster prevent to in order injunc- declaratory sought complaint (6) failing to de- disrupted; being from attorneys’ fees relief, as well tive anas controls such velop administrative n. 1. Id. at 283 expenses. system that management information expedi- children plaintiff ensures defendants’ denied the The district matched home in foster
tiously placed judg- summary and for to motions dismiss needs; specific meet children’s to III, F.Supp.2d Kenny A ment. appro- (6) timely failing provide Perdue, 1269; A. ex rel. Winn Kenny including planning, priate permanency (N.D.Ga.2005) 1353, 1355 F.Supp.2d that would services failing provide IP); A. 218 F.R.D. Kenny A. (Kenny perma- their achieve enable of all foster the class It certified (7) plain- placing, goals; nency planning County and DeKalb Fulton children inappro- unsanitary, dangerous, tiffs subgroup and the systems, care foster placements; other shelters priate *7 “who foster children and American (8) appropriate African failing provide medical, health, to the risk subject and had, necessary mental or in their to children delayed denied adoption services education their having, (9) teenage separating color,” Kenny and custody; race or of their basis their own from care in foster mothers the case set at and F.R.D. A. siblings fos- separating children III, F.Supp.2d trial, A Kenny for provid- without other from each ter care 1268-69. ing visitation. re- time, court the district same At the Id. Id. 1269. mediation. case to ferred causes of fifteen complaint asserted it, “over later describe would court As that Kenny law. and state federal action under attended parties four months the next Perdue, F.R.D. rel. Winn A. ex sessions mediation separate eighteen I). The fed (N.D.Ga.2003) (Kenny A. 110 hours more than they spent where violations, alleged included law claims eral agree- a settlement out to hammer trying § of the 42 U.S.C. brought under eventually suc- They were Id. ment.” Amendment Fourteenth class members’ Id. cessful. due procedural to substantive rights May
In the district gave court final adequately compensate providers approval to the settlement between the caring for foster children. plaintiff class and Fulton and DeKalb Moreover, State Defendants commit Counties; parties agreed to an attor- to reduced for all manag- caseloads case neys’ fees part case; award of the ers and supervisors; fully implement- the district award, entered single ed statewide automated child it has not appealed. been appeal This welfare system; information and main- arises from the settlement involving the taining or establishing placements and defendants, rest which was ap- related services identified in a “needs proved by the district court in October assessment” to be conducted a neu- Id. The court summarized that tral expert. The settlement in- also settlement way: cludes processes for the supervision of centerpiece Its ais series of thirty-one private agencies contract that provide outcome measures that State Defen- homes and services for children; foster agreed dants have to meet and sustain improvements in parent foster screen- least three consecutive six-month ing, licensing and training, as well as reporting periods. foster parent support and communica- measures, The outcome many of them tion; improvements in case manager requiring phased-in results over a two- training; improvements in processes for year period, seek improve perform- addressing suspected neglect abuse or ance in the following timely areas: com- and suspected corporal punishment of mencement and thorough completion of care; children in foster and improve- investigations of reported abuse or ne- ments in efforts to maximize available glect; regular visits of foster children federal funding. workers; case approval and licensure of Finally, the provides settlement foster homes and placements; other two child specialists welfare will serve as percentage of children who are the vic- independent Court’s accountability tims of substantiated maltreatment agents charged with the responsibility of while in care; foster the percentage of measuring and reporting publicly on the children in foster homes that exceed State compliance Defendants’ with these their licensed capacity; the percentage and other undertakings specified of children experienced who have multi- the Consent Decree. ple moves care; while in foster and peri- judicial odic reviews safety
status of foster children. The 2005 agreement settlement further addition, acknowledged
In “Plaintiff Consent Class is enti- Decree re- *8 quires tled comprehensive to recover its periodic and expenses litigation, of deliv- ery medical, of dental, including attorneys’ and mental reasonable health fees and services children; to foster costs, nontaxable pursuant a detailed to 42 U.S.C. process for improved § 1988 goal-setting, 28(h).” case and Fed.R.Civ.P. The planning periodic and agreement reviews of chil- parties said that the “at- would dren’s status care; while in tempt foster limits without court intervention to resolve placement on the of children in proper emer- the amount of Class Counsel’s fees gency shelters and group expenses homes and and litigation.” of If parties the institutions, protections and against could agreement, reach an then “[t]he overcrowding homes; foster and the amount of any award shall be determined establishment of reimbursement rates to by the accordance with the re- inappropriate, be factor would ing the skill proce- and law applicable of quirements argued. the defendants dures.” of all the overruled court district the The Because happened. what That hourly rates to the objections of defendants’ the amount on agree could not parties attorneys. Id. at plaintiffs’ by the sought court the for a motion filed fees, class the hourly rate full each granted It 1285. Id. award. and a determination make to for to from ranging $215 $495 2,500 requested, by accompanied It was 1269-70. at their on depending attorneys, plaintiffs’ from records, by affidavits billing of pages Id. 1284- at experience. and skill relative class, the and for counsel lead the two request- reduce did not court attorneys 85. The area five Atlanta from affidavits themof though some even ed rates all Id. case. not involved who were Atlanta of instead rates New York were of a total sought motion The attor- of the though some rates, and even that Half of Id. fees. $14,342,860 in Low- (for Robinson example, Marcia neys compensate towas amount, $7,171,434.30, recently attorneys) the two lead one of ry, for paralegals and their attorneys hourly rate a smaller had awarded been to they claimed 29,908.73 hours exactly the case on another for work rates those sought; they rates worked Likewise, the at 1284-86. type. Id. same other Id. The to $495. from ranged $75 requested in full approved court to be sought was $7,171,434.30 work. for paralegal to $150 rates job $75 for award fee of the enhancement Id. at Id. done. well sustain partially did The to some objected defendants The the number objection to the defendants’ the number and to requested
hourly rates attorneys claimed plaintiffs’ that the hours down broke They Id. claimed. of hours at 1274. Id. the case. on worked to have rec- billing of submitted 2,500 pages the defendants agreed The court repre- of hours categories fifteen into ords billing counsel’s entries case, some and stages different senting hours vague were records categories of those in fourteen argued billing cate- the fifteen for nine claimed expended had attorneys nine exces- Those were excessive. gories necessary reasonably was than more hours (1) preparing were: categories sively billed Id. class. represent effectively disclosures; mandatory complaint ar- also defendants n. 5. & 1273-74 injunction preliminary (2) litigating bill- on the entries many of the gued analyzing docu- (3) motion; producing support vague too ing records motions; discovery (4) ments; litigating at 1274. compensation. claim (6) other; pre- (5) each conferencing with award be fee request As for (7) re- reports; witness expert paring enhance- a million $7 means doubled judgment mo- summary sponding arguing objected, ment, the defendants (9) trial; travel. (8) tion; preparing cases the rare not one that this 1274-84,1286. Id. at appropri- be would an enhancement which and ex- vague dealt with The court fee enhancing the They argued ate. non- one for ways, two billing cessive would obtained *9 results on the based travel hours. other for and the hours travel plaintiffs’ skill of because improper reduc- 15% across-the-board made “an It al- would the case litigating attorneys related non-travel number in tion account into taken ready have been Id. counsel.” by plaintiffs’ claimed hours count- Double hourly rates. their setting 1218
at 1286. This 15 percent reduction other case during its 27 years on 4,371.22 amounted to being hours sliced off the bench.” Id. at Finally, 29,141.46 total number of court non-travel said that an enhancement appro- was hours for priate which the attorneys had request- because “the evidence establishes ed compensation. plaintiffs’ terms, In dollar success in this case was truly exceptional.” amounted $1,040,176.92 to reduction of a Id. non-travel attorneys’ related fees. To reasons, For these and based on the remedy vagueness and excessive bill- affidavits of some Atlanta area attorneys problem ing hours, as it related to travel urging the court to enhance the fee award the court rate, halved hourly thereby (even did), more than it the court multi- effectively halving the number of travel plied $6,012,802.90 fee by 1.75, award hours that compensated were from 767.27 thereby enhancing it percent 383.64, which amounted to a reduction $4,509,602.00. Id. at 1290. That enhance- $118,460.75. When travel and non-trav- ment boosted the total fee award to el fees are together, considered the court $10,522,405.08. Id. $7,171,434.30
reduced the overall fee re- II. quest by $1,158,631.40,which amounted to an overall percent. reduction of 16 After In reviewing the decisions of the reductions, the total award was district court raised in this appeal and $6,012,802.90before enhancement. cross-appeal, we questions look at of law anew but we review the court’s findings of On the applicability anof enhancement only fact for clear error. Atlanta Journal to the fee request, the court overruled the & Constitution v. City Atlanta Dep’t objections. defendants’ Id. at 1288. The Aviation, (11th 1283, 442 F.3d Cir. court found that plaintiffs’ attorneys 2006). The abuse of discretion standard were entitled to an enhancement because applies to the district court’s determination hourly their rate did “not take into account of the number of compensable billable (1) the fact that class counsel were re- hours, rate at which plaintiffs’ quired to advance expenses case of $1.7 counsel is compensated, the award of costs million over three-year a period with no and expenses, and the enhancement deci ongoing (2) reimbursement, the fact that sion. See Am. Civil Liberties Union of class counsel not paid on an on-going Barnes, v.Ga. 423, (11th 168 F.3d basis as the work being performed, Cir.1999); Richardson v. Ala. State Bd. of (3) the fact that class counsel’s ability Educ., 935 (11th F.2d 1248-49 Cir. to recover a fee and expense reimburse- 1991). In applying the abuse of discretion ment were completely contingent on the standard, keep we in mind that a “[w]hen (footnote outcome of the case.” Id. omit- discretion, court has there are usu ted). ally range of choices may make and The district court also found that “the affirmed; still be there only is not one superb quality of representation [counsel’s] right choice for the court to make.” Blas far exceeded what could reasonably be ex- land, Lee, Bouck & Inc. v. City N. pected for the standard hourly rates used Miami, (11th 283 F.3d Cir. to calculate the [fee].” Id. at 1288-89. 2002); Toto, McMahan v. 256 F.3d commented “[q]uite simply, (11th Cir.2001) (same). This is true brought counsel higher degree though “even we would gone the oth skill, commitment, dedication, pro- way er had it been our call.” Rasbury v. fessionalism to litigation than the Internal Serv., Revenue 24 F.3d Court has seen displayed by (11th the attorneys Cir.1994).
1219 under attorneys’ fees reasonable recover by def court course, district “[a] Of provides section § That 42 U.S.C. makes when discretion its abuses inition action, this like that in part in relevant States, v. United Koon of law.” an error to enforce seek one, the where 2047, 2035, 135 100, 81, S.Ct. 116 518 U.S. 42 under U.S.C. rights their constitutional Delo, Schlup v. (1996); accord 392 L.Ed.2d discretion, may court, 1983, in its “the § 870, 851, 130 333, S.Ct. 298, 115 513 U.S. other than party, prevailing allow J., (O’Connor, concur (1995) 808 L.Ed.2d fee attorney’s States, a reasonable United of dis abuse (“It paradigmatic ais ring) 1988(b). § 42 U.S.C. of the costs.” part on judgment base its a court to cretion con the defendants law.”). appeal may In their We view of erroneous dis its court abused district dis tend that if the discretion of an abuse find also conten first Their ways. in three cretion proce proper follow failed court trict not should court district tion is determination, based making its dures attorneys all awarded have fact that of findings upon an award they claimed. expenses photocopying clear erroneous, committed clearly at 1294- III, F.Supp.2d 454 Kenny A. See Breeden, v. Johnson judgment. error not would probably we Although Cir.2002); (11th Sun- 1308, 1326 280 F.3d ex the claimed amount the full award Co. Assurance Corp. v. Sun America Life the matter deciding if we were penses Cir.1996); (11th 1325, 1333 Can., 77 F.3d say that instance, cannot we the first Paine Eastman Blythe v. BankAtlantic doing its discretion abused court district (11th 1045, Inc., 1048 Webber, 12 F.3d so. Cir.1994). Y. III. defendants’ to the turn now We plain cross-appeal In their argu their contentions, starting with other abused court the district contend tiffs calcu court erred district ment (1) by not respects: in two its discretion most “The amount. the lodestar lating common fund common applying determining the point starting useful result have doctrines, would which benefit is the number fee a reasonable amount than higher substantially litiga on reasonably expended a fee award ed in of hours (2) by not received; they by a reasonable one multiplied tion 424, $801,864.40 Eckerhart, 461 U.S. for the v. Hensley them rate.” compensating 1939, L.Ed.2d 1933, expenses. witness expert spent on formula (1983). product of those The each resolved court district The Stierheim, F.3d v. “lodestar,” Loranger its affirm and we correctly, issues two curiam), Cir.1994) (per (11th 776, 781 rea the basis on of them decision fee- of our light guiding is “the which A. Kenny opinion. in its soning contained Burlington City shifting jurisprudence,” 1270-72, 1291-92. III, F.Supp.2d 562, 112 U.S. Dague, 505 (1992). L.Ed.2d IY. long no defendants Although the in the settle- conceded defendants component hourly rate pre- had er contest class agreement ment calculation,2 court’s to the district entitled and was litigation
vailed no occasion we Accordingly, appeal. object in the did defendants 2. The matter, do mean but we pass were too requested on that hourly rates as an issue raised they have not high, but *11 1220
they do contend that
the district court
VI.3
compensated
attorneys for
The defendants’ final conten
an unreasonable
of
number
hours. As we
tion is that the district court should not
explained,
have already
the court essential-
granted
plaintiffs’ attorneys a $4.5
ly cut the total
of
number
hours submitted million enhancement to the million lode
$6
percent
16
vague
because
entries and
star amount. That contention can claim
billing.
excessive
supra
See
at 1217-18.
the favor of a presumption, and not a weak
We have
held
billing
where the
rec-
one
either. The
in
Court has
voluminous,
ords are
here,
are
structed us that
there is a “strong pre
district
may
make a reasonable
sumption” that the lodestar figure, without
across the board reduction in hours in-
any adjustment,
is the reasonable fee
stead
engaging in the pick and shovel
Dague,
award.
562,
505
U.S.
necessary
work
to make a
precise
more
2641;
Pennsylvania
Del. Valley
Citi
determination. See Loranger, 10 F.3d at
Air,
zens’ Council
Clean
546,
478 U.S.
so,
783. Even
argue,
565,
defendants
106
3088, 3098,
The
106 S.Ct. at
court’s
where
reduction of
only
applicant
fee
has
percent
shown that
without
submitted hours
an
adjustment
upward
appear charitable,
does
of the lodestar
maybe even exces
amount
the fee would be
sively so,
unreasonable,
in favor of the plaintiffs’ attor
Dague,
U.S.
matter in
instance,
the first
we
say
cannot
that the result the district court reached
In order to appreciate just how rare and
was outside the range of permissible
exceptional a case must
be
an enhance-
choices
this record. See Cook ex rel. ment of the lodestar amount to
permis-
Estate
Tessier v.
Monroe
sible
days,
Sheriff
these
a review of the evolution
Fla.,
County,
(11th
F.3d
1103-04
of Supreme Court thinking in this area is
Cir.2005); Cooper
Co.,
v. Southern
390 necessary.
history
The
of the issue is one
(11th
F.3d
711-12
Cir.2004); Rasbury,
of early,
tentative statements indicating
increase the basic fee award.
plaintiffs’ counsel in taking the case on a
898-99, 104
Id. at
S.Ct.
contingency basis could
justify
ever
an en
The Blum Court then moved on to the
hancement of the lodestar.
Id. at 901 n.
next factor:
17,
5. The
Dague
fees in
were
pursuant
awarded
the language of
attorneys’
these
fees statutes
to the Solid
Disposal
7002(e),
Waste
§Act
42
are "similar to that many
other federal fee-
6972(e),
§
U.S.C.
and the Clean
statutes;
Water Act
shifting
our case law construing
505(d),
§
1365(d).
§
33 U.S.C.
Dague, 505
what is a
applies
'reasonable' fee
uniformly to
559,
U.S. at
1225
being per
work
as the
basis
going
B.
(3)
class coun
formed,
fact that
million enhance-
court’s $4.5
The district
expense
to recover
fee
ability
sel’s
figure
lodestar
million
ment to
$6
contin
completely
reimbursement
with
squared
case cannot
present
case.FN8
the outcome
on
gent
have dis-
we
decisions
Supreme Court
¶¶5-8;
(Chandler
Fellows Decl.
Deck
explicit-
did
cussed.
¶¶ 7-12;
¶¶
Rawls
5-8;
Deck
Knowles
to,
effect
give full
mention,
less
much
ly
¶ 25;
¶¶
Bram-
5-8;
Deck
Lowry
Deck
the lodestar
strong presumption
¶¶ 7(a)
10,13-14.)
&
lett Deck
therefore
fee and
reasonable
amount is
Dague,
See
awarded.
to be
the fee
cannot be
enhancement
FN8. A lodestar
Burling
(“We
City
contingency alone.
have
at 2641
based on
U.S.
Dague, 505 U.S.
ton
presumption
a strong
established
case,
(1992). In
howev
120 L.Ed.2d
fee, and
the reasonable
represents
only
er,
nonrecovery
one
is
risk
who
applicant
the fee
upon
placed
which,
together, estab
taken
factors
several
beyond what could
of show-
the burden
than that
well
level of service
seeks more
lish a
rates claimed.
expected for the
reasonably be
necessary
adjustment
that such
ing
fee.”
of a reasonable
1288 & n.8
III,
F.Supp.2d
Kenny
determination
A.
omitted)); Dela-
omitted).
and citation
three fac
(citations
None of the
(quotation
S.Ct. at
Valley 478
U.S.
ware
court relied
the district
tors
the lode-
(“A
strong presumption
is a
the award
boosting
justify
passage
of reasonable
product
figure
star
doing so.
basis
proper
—the
represents
a reasonable
times
hours
rate —
wholly consistent
fee is
a ‘reasonable’
list,
fee-shifting
top of
from the
Starting
usual
behind
the rationale
*16
of
quality
present
in the
one
court’s reliance
statute,
including
which
case.”).
performance,
superior
service
conflicts
thing,
same
essentially the
are
on several fac-
relied
court
The district
that
teachings
Supreme Court’s
with the
dollar
the multi-million
granting
in
tors
ac-
adequately
considerations
those
figure, most
to the
enhancement
the rea-
determining
in
“either
counted
following passage
are cited in
which
of
on the
expended
hours
number of
sonable
opinion:
from its
hour-
setting
reasonable
litigation
First,
establishes
the evidence
“unnecessary to
it is
rates,”
ly
by class
rendered
of service
performance
superior
the fee for
enhance
extraordinary
counsel,
including their
statutory purpose
serve
to
order
resources, was
capital
commitment
legal assis-
to secure
enabling plaintiffs
legal
consumers
to
far
what
superior
I,
Valley
478 U.S.
Delaware
tance.”
marketplace
At-
legal
services
3098;
id.
also
see
to receive
reasonably expect
lanta could
(“Hence, plaintiffs
if
calcu-
in the lodestar
rates used
for the
lawyer
a
engage
to
possible
...
find
shows
the evidence
Specifically,
lation.
he
statutory assurance
based on
in the lode-
used
hourly rates
fee,’
purpose
paid ‘reasonable
will be
into account
take
not
do
star calculation
has been
fee-shifting statute
behind
were re-
(1)
class counsel
fact that
satisfied.”).
case,
district court
In this
expenses
$1.7
case
to advance
quired
per-
stellar
“the
considered
specifically
with no
three-year period
over
million
throughout
counsel
(2)
formance
reimbursement,
the fact that
ongoing
approving
case”
long and difficult
this
an on-
paid on
not
class counsel
hourly rates,
their
which reached
totally contingent upon
$450
prevailing
III,
lead counsel. Kenny
$495
A.
action.
F.Supp.2d at
Having already
Jeffrey Bramlett,
O.
the other lead coun-
been used to
amount,
increase the lodestar
sel, testified by affidavit that: “The hourly
the quality of the services rendered and
rates set forth in Exhibit 1 correctly re-
superior performance could not also be
flect the hourly
my
rates
law firm current-
used to enhance the award above the lode
ly charges and
from
collects
clients who
star amount that had been calculated using
hire
perform
us to
legal services on a
higher
those
rates. See
Hourly
Standard
Rate
However,
basis.”
It was after the Hourly successful Standard settlement Rates are predicated had achieved, been they after knew on the assumptions how that the client will they well performed, had after they pay knew in full on a day cycle, 30-60 degree difficulty involved, and after counsel is required not to shoulder any they knew how much capital resources and significant financial risk of unreim- legal effort had been required that bursed expense, case and that counsel plaintiffs’ attorneys asked for rates will paid currently regardless of the they thought they deserved. Over result ultimately Here, achieved. Class objections defendants, the dis- Counsel was forced to advance case ex- trict gave them those rates in full. penses approaching million pro- $1.7 It did reduce a single hourly rate for tect interests, the Class’ largely because any attorney or paralegal so much as a State Defendants refused Plaintiffs’ sug- penny.6 gestion of a neutral case record review In requesting their hourly rates, (and that would have saved both sides lead counsel for the plaintiffs represented State) ultimately the duplicative cost. that those adequate, rates were subject to Here, Class Counsel was forced per- considerations specified, compen- sonally advance Plaintiffs’ portion of sate them. Marcia Lowry, Robinson one that cost in the face of State Defendants’ counsel, the two lead testified by affida- vigorous assertion that it would not and vit that: could not Here, be recovered. Class *17 The hourly standard rates reflected in Counsel’s recovery any cost, of let alone 2 fair, Exhibit are reasonable, and con- fee, was utterly dependent upon the con- sistent with hourly rates in the Atlanta tingency of a successful Here, result. market for price the of legal services of Class Counsel was forced to invest more comparable quality rendered in cases than $8.85 million professional of time demanding skill, similar judgment and out-of-pocket and expense over a three- performance. These standard hourly year and-one-half period with no assur- not, rates do however, take into account ance any recovery. the fact that class counsel required was in this case to There is no advance the indication entire that Mr. $1.7 Bramlett’s expense million of prosecuting regular firm’s this hourly case anywhere rates are for the class, benefit the or the near fact the low side of the Atlanta legal that class counsel’s compensation was market or even the midpoint.
6. The district court did hourly cut the rates the way court’s of correcting for the attor half, for travel time in but not in neys' order to billing III, excessive Kenny of time. A. Instead, the lower rates. the reduction F.Supp.2d was at 1284. point is Particularly instructive counsel lead two that the position The reasoning in Court’s the hourly- some that the is affidavits in their took no enhance- could be that there concluding figure the lodestar calculate used to rates of a nature contingency the ment for would clients paying rates the same were that the attor- the risk case—for represent They each charged. been have the costs for paid all would not be neys fully compensate rates would that those ed they expend- the time and they dis advanced the facts that for three except them 563, 112 S.Ct. U.S. at “(1) Dague, 505 ed. See opinion: in its listed trict risk always a there is 2641. Because required to were counsel that class fact lost, en- permitting be a case will over million expenses $1.7 case advance risk degree of on the hancements based reim no ongoing period with three-year lodestar that calculation would mean counsel (2) bursement, that class the fact in a inquiry contin- never end would as the on-going basis on an paid not were decided, that, case, the Court (3) and gent-fee the fact and being performed, was work Likewise, unacceptable. be a fee would ability to recover class counsel’s in delay for enhancements permitting com were reimbursement expense and incurred expenses for compensation the outcome contingent on pletely that calcula- would mean rendered services III, F.Supp.2d at A. Kenny case.” merely be would tion of step last presumptive step, not the first unacceptable. That would be process. three con those delay any first two said that Finally, we have factors, payment delayed services rendered professional for siderations payment for bases rates permissible if the fact is offset award, comple an enhancement at the prevail a fee enhancing those that used are every usually class virtually instead of required in case tion would time the traditional at the were in effect by one rates covered lower action Norman, a rare is done. See It fee-shifting statutes. work the earlier federal delay (“[W]here rights there is those whose where F.2d at § action time cost of take into account finance should violated the court been of inflation the effects money and Attorneys for the value of litigation. cur compensation have to always award generally of cases almost types these rates.”). than at historic and do rather litigation rates rent cost of advance most, hourly rates case, their time In this payment receive case after the effect simply those That is used were completed. the case until (See completed. delays in been If the had the beast. nature of 6) (“The set hourly rates for R32:495:Ex.C^ payment costs reimbursement *18 the reflect correctly in Exhibit inevitably entail forth cases these services charges currently firm hourly my rates an enhancement, would there justified hire us who clients from and collects case. We every in almost enhancement a Standard on legal services perform Supreme be, the because cannot know basis.”). covers two That Hourly Rate must em that we us instructed has Court relied the district factors three the en against strong presumption ploy rates hourly determining that the rare them to and confine hancements enhancement and an underinclusive were at 505 U.S. Dague, case. exceptional III, 454 A. Kenny warranted. was 2641; Delaware 562, at 1288. F.Supp.2d 565, 106 at 3098. 478 U.S. In summary, none three factors the district court enumerated as a
The third factor was the contin
basis for determining that
professional
gent nature of the
Enhancing
case.
services rendered
counsel
on contingency
flatly
based
is
for
superior
“far
bidden
to what
Dague
decision.
consumers of
The dis
legal
trict court
under
services in
legal
impres
marketplace
mistaken
sion
Dague
rule
Atlanta could
only
reasonably expect
forbids
an
to receive
enhancement based on contingency
for the
alone.
rates used in the lodestar calcula
Id. at 1288 n. 8. The
tion,”
rule is not so
III,
limited.
Kenny A.
454 F.Supp.2d at
Supreme
Court’s description
1288,
of the
permissible
is a
basis
enhancing
scope of its holding
wiggle
leaves no
room.
the lodestar amount. An enhancement
The Court stated that it was “concluding based on them is
with
inconsistent
control
that no contingency enhancement whatev
ling Supreme Court decisions.
er is compatible with
fee-shifting
stat
utes at
Dague,
issue.”
bring relatively meritless claims. See id.
more than a restatement of the district
2642;
S.Ct. at
see also id. at
position
court’s
that the lodestar amount
566,
That,
reasoned,
the Court
First,
would be bad.
the district court itself found that
Dague,
at
U.S.
112 S.Ct. at
plaintiffs’
2643.
attorneys had
vague
submitted
“the
and
of counsel”
experience
and
skill
fifteen
nine of
and overbilled
records
“presumably
representation”
of
quality
more
to cut
the court
forcing
categories,
amount, and
in the
claimed,
lodestar
fully reflected
they
off those
4,700 hours
than
for
bases
independent
as
than
cannot serve
more
thus
$1
of
a reduction
amounting to
Delaware
award.”
at
the basic fee
supra
increasing
time. See
of billable
million
at 3098
indicated,
I,
106 S.Ct.
if
at
Valley
478 U.S.
And,
we have
as
1217-18.
omitted);
also
citation
see
too kind
was
(quotation
court
the district
anything,
(“In short, the
at
respect. See
in that
at
attorneys
id.
all,
aside,
most, if
includes
Any
figure
kindness
1219-20.
at
supra
constituting
held
a ‘reason-
Court
factors
Valley I the
relevant
Delaware
fee,
unnecessary
number
it is
large
attorney’s
a
“elimination
able’
that
un
superior perform-
that
grounds
on the
to enhance the
hours
fee for
unreasonable,
unproductive
statutory pur-
or
to serve
necessary,
in order
ance
con
legal
court’s later
to secure
enabling plaintiffs
supportive
pose
is not
added)).7
repre
remaining hours
(emphasis
that
clusion
assistance.”
” Dela
quality.’
‘superior
work of
sented
567, 106
at
I,
S.Ct.
478 U.S. at
Valley
court
ware
the district
final reason
The
2,n.
at 554
id.
generally
See
3099.
was
million enhancement
gave for
$4.5
holding
The
reflects
n. 2.
at 3093
in this
was
case
success
“plaintiffs’
that
and exces
bad
idea that
sense
III,
common
A.
Kenny
truly exceptional.”
law-
superb
with
inconsistent
billing is
sive
was so
result
1289. The
F.Supp.2d at
to consid
failed
court
The district
yering.
said,
years
“After
that:
the court
good,
findings.
inconsistency in its
that
er
judge,
attorney and federal
practicing
aas
case
any
other
unaware
fundamental,
is
the Court
second,
more
a
such
achieved
class has
plaintiff
which
on
reliance
district court’s
about the
point
comprehensive
on such
result
as a
favorable
representation
quality
that, but the
only
Not
scale.”
lodestar amount
enhancing the
for
ground
“even if
also said
counting and
to double
amounts
is
in a trial
prevailed
had
deci-
Supreme Court’s
contrary to the
they would
case,
it is doubtful
we have
I. As
in Delaware
sion
‘intricately detailed
relief
obtained
decision
in that
already explained,
contained
as that
comprehensive’
supe-
for
an enhancement
reversed
1289-90.
Id. at
Decree.”
Consent
special
“the
holding
performance,
rior
much
reading,
infers too
which
Id. That
ValleyI also said
Court in
7. The
words,
license courts
would
two
concerning
from
considerations
"[b]ecause
perform-
superior
for
enhancements
repre-
award
party’s counsel’s
prevailing
aof
per-
any
where
case
ance
results
reason-
normally are reflected
sentation
anything
than
better
or result
rate,
per-
formance
quality of
the overall
able
"normal,” thereby contradict-
"ordinary” or
used to
not be
ordinarily should
formance
is a
that there
clear instruction
ing
lodestar,
danger
the Court’s
removing any
thus
adjust the
”
against an enhancement
strong presumption
Valley 478
counting.' Delaware
'double
rarely be
they should
and that
reason
Judge Wil-
106 S.Ct. at
U.S.
565, 106 S.Ct.
Id. at
any reason.
granted for
words
concurring opinion reads the
son’s
incon-
reading would also be
3098. That
"ordinarily" to eviscerate
"normally" and
has said
the Court
of what
much
sistent
that "it is unneces-
instruction
clear
Court’s
example, the
contradicting, for
subject,
superior perform-
the fee
sary
to enhance
teach-
Court's later
implication of the
clear
statutory purpose of
to serve the
in order
ance
1230-31.
Dague
See
case.
ings in the
legal assistance.”
infra
enabling plaintiffs to secure
*20
1230
To the extent that
Blum,
pose.
See
893-95,
465 U.S. at
rewarded
counsel with an
S.Ct.
1546-47.
enhancement for obtaining better results
Some of the discussion in
Dague
than the class would have received had the
opinion is useful in understanding why en
case been
merits,
resolved on the
that is hancements
should
be given for mer
plainly wrong. The purpose of the fee-
its-exceeding results. As we have re
statutes,
shifting
as
Supreme
Court
counted, in that
case the
explained
I,
Valley
Delaware
“to en
rejected the idea of enhancements for con
private parties
able
to
legal
obtain
help in tingency or risk of
part
loss in
because
seeking
injuries
redress for
resulting from permitting them
provide
would
attorneys
the actual or threatened violation
specif
with some incentive to bring relatively
ic federal laws.”
478 meritless
Dague,
claims.
505 U.S. at
U.S. at
judicial process’ for persons with civil 563, 112 Id. at rights grievances.” (quoting H.R.Rep. No. A result that (1976))). 94-1558, at obtains more or bet reason, For that ter relief than plaintiffs fee award are should entitled “result[] fees which receive is, under are the law to adequate to attract extent competent counsel, it exceeds their but entitlement produce which do not on the merits, windfalls to at analogous torneys.” Blum, to relief on a 893-94, 465 U.S. at meritless claim. as Dague S.Ct. at Just instructs us that (quoting S.Rep. 94-1011, fee No. awards (1976), should not reprinted as underwrite efforts to obtain 5913). relief U.S.C.C.A.N. where none is due law, under the neither they should underwrite efforts to Stated from the other di receive more or better relief than that due rection, the fee-shifting statutes are not under the law. Just as the societal costs designed provide representation that for fee awards for non-meritorious claims will win more than a ap correct high, are too so also are they too high for plication of substantive and remedial law results that exceed what the law allows. entitles them to receive. Their purpose is Just encouraging non-meritorious not to provide representation that will se claims cannot objective have been an of the cure settlement relief that is more “intri fee-shifting provisions, neither can encour cately detailed and comprehensive,” Kenny aging go results beyond what the law III,A. 454 F.Supp.2d than the allows have objective. been an plaintiffs would have received if their claims put had been To litigated to judg manner, final either-or superb ment. purpose statutes, results are what a most either fair application of assuredly, is not to provide plaintiffs produces, law which they means that representation that dazzles or not truly bedazzles are “superb,” are results the district court judge. Fee awards that exceed what the law allows and should be calculated in a way that furthers that reason beyond the purpose of the the purpose of the fee-shifting statutes; fee-shifting statutes. Those statutes are they should not be used to encourage or designed provide a reasonable fee for a reward results that beyond go pur- result, reasonable not an extraordinary fee *21 ex- possible the That exhausts luck. good the law what beyond goes that for a result re- excessively favorable for litigated planations were claims the if provide would awarding an en- sults, supports the merits. none on conclusion correct their to hancement. merits-exceeding way. A at it this Look product the must be plaintiffs
result combination, following the one, or some relied to court The district by plaintiffs’ lawyering superior factors: five affidavits four of the on some extent by defendants’ counsel, lawyering bad in case attorneys court, plaintiffs’ that counsel, making decision poor similar who do held in from their friends obtained luck. The or dumb III, lawyering F.Supp.2d A. superior Kenny I that work. Delaware proper not a counsel is found that plaintiffs’ The district 1290.8 Val- attor an enhancement. Atlanta basis for “disinterested affiants S.Ct. at 478 U.S. ley clearly finding errone That neys.” Id. cause possible So, the first 3098-100. two one of the argument, At oral ous. cannot merits beyond the go that results conceded lead counsel Nor an enhancement. justify to used be attor these only had recruited he not that that argued be plausibly can it affidavits but neys provide to windfall, and reap to ought attorneys of them supplied some he had also past more pay to have to ought defendants their help boost affidavits with similar should, because they otherwise than fees fee awards.9 own side. defense on the lawyering bad those support the need from Aside enough from suffers defendant Surely a them, signed lawyers who support who it be- against granted additional relief a financial interest have the affidavits without representation of inferior cause in this case award the fee keeping surcharge to pay a making the defendant as high possible. it as every like case having privilege side for the other useful the more award is fee higher this Nor can lawyering. of bad the victim been signing lawyer for the precedent bewill as cheek, that tongue out argued, with it be high fee seeks a when he the affidavit plain- reward increased should be fees are The affiants his own cases. award the side that being on attorneys for tiffs’ “disinterested.”10 but anything judging or from bad to benefit happens you told me if be shocked I would Court: why, in its discussion It is unclear for one of affidavits, an affidavit you dis had never filed court omitted the district Goldberg. Ralph signed by one them. cussion III, For F.Supp.2d at 1290. and that Kenny A. be shocked See You would Bramlett: it in But, we include completeness, will the fact is sake but be incorrect. would highly discussion. lawyers our are four of these all affidavits indicate highly competent, Four of five experienced, regularly as attorneys practice who from the Atlanta market— practiced law in attorneys’ fee depending lawyers plaintiffs' keeping highly interested And Court: John Chan- exception is The lone awards. high multipliers as up rates dler, although indicates whose affidavit possible— as defense side on the has been of his work most Ah. Bramlett: plain- for some counsel has also served he classes. tiffs’ opinion concurring states 10.Judge Wilson's reasonably contended cannot that “[i]t lawyers who selected those Who 9. Court: judge in this experienced the able experts? served as possibility considered case never out. I sought those witnesses I Bramlett: benefit an indirect ... could derive affiants say— didn't mean the Court *22 The lodestar amount will never adequate suffice Yet, and full compensation.”13 we attorneys know those practice who assertions are not this As area. true. noted, we already the district court They always believe, will sincerity, all found that had inflated the num they that jus- deserve more and that ber of hours for they which were due system tice will function they better if are compensation in most of billing the fifteen paid Lawyers more. who handle these categories a substantial amount. kinds of cases cannot be disinterested wit- III, Kenny A. F.Supp.2d nesses because are financially inter- 1286; supra at 1217-18. The court’s find ested. To this is not lawyers state to slam ing, which being Court, is affirmed this in general plaintiffs’ or lawyers particu- hours submitted were not reason lar. It simply recognizes that because a key premise able contradicts every self-interest is hard-wired into human cir- one of lawyer’s affidavits. cuitry, group no is disinterested when it All five of the urged affidavits the dis- question comes to the of what members of trict court to enhance the fee award based group paid. to be H.L. Menck- Cf. on the fact counsel ad- en, (John A Little Book in Major C vanced the cost of expenses.14 That is Co.1916) (“It Lane is hard to believe that a permissible basis for an enhancement. telling man is the truth you when know supra See All of 1226-28. the affidavits you would you lie if were his urged the court to enhance the fee award place.”). because of the risk contingency factor.15 That, too, impermissible is an factor for an Aside from the obvious self-interest of enhancement, as the concurring opinion in affiants, the contents of the affidavits this case concedes. See at 1247-48 infra that were filed in this case are also flawed (Wilson, J., concurring specially). The Su- in other ways. example, For in each of preme Court itself specifically has ruled it them the solemnly affiant swore that the out. supra See at 1228. Four of the amount of compensable time claimed in affidavits even urged the court to its base “reasonable,”11 case was was “reason- fee award on the common fund or common able, fair, fully compensable,”12or was doctrines,16 benefit which the district court “fair, reasonable, fully deserving correctly of concluded legally permis- was not benefit precedential from the high value of a Ralph of Goldberg); (R32:495:Ex.F:4-5) (affi- (Wilson, J., fee award.” See at 1248 Chandler); davit (R32:495:Ex.G:4-5) of John infra concurring specially). Actually, the able and (affidavit Fellows, Jr.); of Henry D. experienced judge district court himself ex- (R32:495:Ex.H:4-5) (affidavit of C. James plicitly found attorneys affiant Rawls). finding, "disinterested.” That which under- any affidavits, lies gave credit the court to the 11) (R32:495:Ex.D:6-8, (affidavit 15. Ralph clearly just erroneous. It is not true. Knowles, Jr.); (R32:495:Ex.E:5-6) (affidavit I. Ralph Goldberg); (R32:495:Ex.F:4-5) (affi- (R32:495:Ex.F:4) (affidavit 11. of John Chan- Chandler); davit of (R32:495:Ex.G:4-5) John dler); (R32:495:Ex.G:4) (affidavit Henry D. (affidavit Fellows, Jr.); of Henry D. Fellows, Jr.); (R32:495:Ex.H:4) (affidavit of (R32:495:Ex.H:4-5) (affidavit of James C. Rawls). James C. Rawls). (R32:495:Ex.E:4-5) (affidavit 12. Ralph Goldberg). (R32:495:Ex.D:8) (affidavit 16. of Ralph I. Knowles, Jr.); (R32:495:Ex.F:5) (affidavit of (R32:495:Ex.D:5) (affidavit Ralph I. Chandler); (R32:495:Ex.G:4-5) (affida- John Knowles, Jr.) omitted). (emphasis Fellows, vit Henry Jr.); D. (R32:495:Ex.D:6-8, 11) (affidavit (R32:495:Ex.H:5) (affidavit Ralph C. James Knowles, Jr.); (R32:495:Ex.E:5-6) I. (affidavit Rawls). much the in- III, matter how no permissible, A. Kenny See possible. or even sible seg- particular of this 1270-72; terested members supra at 1219. F.Supp.2d might want them be. of the Bar in all ment expressed opinions The fact Supreme Court supra at 1228-31. See on consid based the affidavits were five of by affidavits. cannot be overruled decisions makes factors improper of several eration court based finding of *23 erroneous, it ren and clearly affidavits on those placed court any reliance ders the enhance that Our conclusion we of discretion. As an abuse affidavits in this case amount to ment paradig be a would recognized, “[i]t one will that improper does mean for a court of discretion abuse matic any circum appropriate under never be view of an erroneous judgment on its base has If, as the stances. Allen, F.3d 515 McNair v. the law.” us, proper calculation instructed Cir.2008) (11th (internal omit marks 1173 little room” “very leaves lodestar amount Delo, at ted) 513 Schlup v. U.S. (quoting enhancements, proper may be which J., (O’Connor, concur 870 cases, De “exceptional” in “rare” and only Koon, 518 U.S. see also ring)); 478 U.S. laware (“A by court defini district at 2047 S.Ct. little room— where is that an when it makes its discretion tion abuses exceptional are those rare and what Hall, law.”); v. States United error think can may fit within it? We cases that Cir.2003) (11th (explaining 1320, 1323 F.3d some. “based on decision is if court that a district attorney’s an example, that Suppose, for an law, then it is definition an error federal vindicates representation discretion”). no an It is less abuse as a unpopular client rights of a district court abuse of discretion for a loss of stand attorney suffers result that are affidavits on its decision base his damages community which ing in the as legally erroneous based themselves kind of situation income. The practice and sumptions. by Judge mind was discussed we have in no would otherwise, there be Johnson, Jr., Were not on albeit Frank M. limit to them. and no enhancements end to Ac amount. enhancing a lodestar issue of mem- an established every case where In the en came before discussion tually, the he an enhancement Bar ber seeks fee-shifting statute § 1988 actment of colleagues are who get able to his will deciding be in the context and was as as high fee awards keeping interested be awarded that should amount of fees stating that sign affidavits possible equi of its the exercise through the court adequate repre- thing Allen, that will ensure only NAACP power. table is a multi- that one in cases like (M.D.Ala.1972), sentation in rele F.Supp. 703 aff'd And Cir.1974). enhancement. some (5th dollar million In F.2d 614 part, vant those inter- judges credit will attorney should much deciding how attorneys.” as “disinterested affiants ested receive, Judge Johnson stated: plaintiffs black representing lawyer [A] none of multi- of this and none But case, or discrimination employment in an defects in and serious ple, specific, likely to is litigation, any rights civil in this case filed that were affidavits community os- social, political and suffer fundamental the more obscure should multiplied, This likelihood tracism. for su- which is enhancements point, one present course, such in a case are not and results performance perior which high-rank- have sued ment the district court awarded in ing state alleged officials and have this case does.
proved racial discrimination. Even Representing children who find them- more to an damaging attorney involved selves in foster care is not the same as litigation in such is the probability that representing activist atheists in the Bible he will estranged from other mem- Belt or pedophiles anywhere. plain- bers of his who profession unwilling attorneys not, tiffs’ case do in, to participate or even lend moral not, reasonably could claim to have suf- to, support seeking to suits vindicate the professional ostracism, fered social or public good. nor victory do contend their here Id. at 710. will damage somehow their legal practice. hope We three-and-a-half decades contrary, To the vindicating rights after those words were written in the Al- helpless children is the *24 accomplish- kind of len attorneys case represent who victims ment that brings professional accolades of racial discrimination no longer suffer and enhances standing one’s in the com- social, political, professional ostracism. munity. It enhancement, is to that type attorneys But represent who other types one, monetary instead of a that the attor- of plaintiffs might. It could to an happen neys must look for beyond satisfaction attorney represents who a pedophile at- $6,012,802.90 they are already receiv- tacking a sexual offender registration law ing for their work in this case. grounds, Due Process or perhaps to an Bramlett, And Mr. one, for has done so. attorney in a small Bible Belt town who The “Attorney Profile” on his law firm’s succeeds in having popular public a reli- website boasted of his “track record of gious practice enjoined contrary to the results in class litigation,” action listing Establishment Clause. Whether those cir- three of his biggest successes.17 The one cumstances, and others we have not men- that was discussed the most was described tioned, proper would be ones for enhancing as follows: the lodestar amount are issues for other Prosecution of action in conjunc- class days. For now it enough is to recognize tion with New Rights, York’s Children’s possibility point and to out in resulting systematic Inc. reform of “rare” and “exceptional” circumstances State of Georgia’s dysfunctional foster that we have mentioned would be more system care and establishing that foster likely to fit “very within the room” little children right have a to counsel. Supreme Court has told us is left The judge federal presided who enhancements. over Delaware Valley 478 Georgia’s case for foster U.S. children 3098. The wrote of the performed work Court decisions on fee-shifting do legal not clearly preclude team led Jeff and Marcia enhancement of the Rob- Lowry inson amount those of New York’s circumstances. Childrens’ And an Rights, enhancement Inc.: circum- “[Plaintiffs’ those counsel stances is likely brought less to higher result a degree skill, double com- counting, or mitment, encourage to meritless law- professionalism dedication and suits, go beyond or to the basic purpose litigation than the Court has seen the fee-shifting statutes than the enhance- displayed by attorneys in any other Bondurant, LLP, Mixson & Elmore Jeffrey (last _torts_lawyer_bramlett.html visited Dec. Profile, O. Attorney Bramlett http://www. 8, 2007). atlantageorgiatriallawyers./attorneys/business major litigation efforts has “directed the bench years on its 27 during case throughout the United States jurisdictions practicing as a years .... After 58 is of child judge, major the Court reform designed promote attorney and federal (R32:495:Ex.B:2.) a case which any other systems.” welfare unaware such a favor- achieved class has plaintiff and the Executive Lowry founded Ms. comprehensive on such result able Rights Group, of the Children’s Director 1289-90.[18] F.Supp.2d scale.” 454 that advocates non-profit organization Bram- that Mr. recounted also profile The organi- The of children. litigates on behalf Jurispru- P. Tuttle Elbert received the lett that, among other explains zation’s website Anti-Defamation from the Award dence action Rights files class things, “Children’s fair justice and “for dedication League of classes of abused lawsuits on behalf He people.”19 all received treatment contact with children who have neglected also chosen and he was in 2007 award to enforce systems, welfare public child Bar Georgia State as President-elect of these law- rights. goal legal their honors came Those year.20 same functioning of state improve the suits is to helped he judgment after the year ... .”21 systems child welfare It in this lawsuit. was entered secure largely that is any organization As with that, Mr. Bramlett’s anything, if appears grants, dependent upon donations as well prestige, standing professional *25 afford to hide its Rights cannot Children’s have been enhanced earning ability, as his shy achievements, it has not been of the lead as one of his service as a result case. In at it achieved in this about what children. the foster for counsel the course press releases over least four for the counsel foster other co-lead The lawsuit, trumpeted Rights Children’s case has not suffered in this children “some doing for it done and what had liveli- standing or professional reduction citizens,”22 vulnerable most of Atlanta’s it, To her work either. because of hood so proclaimed “[a]fter proudly and it has in this case contrary, what she did promises and broken years of failure many credentials, reputation, her furthered her given these state, this lawsuit has by the lifework, purpose of and the chosen her a voice.”23 neglected children abused and Lowry Robinson Marcia organization. her of the dis- one organization described The of children’s welfare litigated on behalf has landmark deci- rulings as “a trict court’s century. She quarter than a for more Ques- LLP, Frequently Asked Rights, Bondurant, Jeffrey 21. Children’s & Elmore Mixson 18. tions, Profile, http://www.childrensrights.org/site/Page http://www. Attorney Bramlett O. (last visited Lawsuit Server?pagename=faq# atlantageorgiatriallawyers.com/attorneys/ 5, 2008). (last June business_torts_lawyer_bramlett.html vis- 8, 2007). Dec. ited Release, Rights, New Set- Children's Press 22. Legal Right Coun- tlement Guarantees LLP, Bondurant, Jeffrey & Elmore Mixson 19. De- Neglected Children in for sel Abused Profile, http://www. Attorney Bramlett O. Georgia, http://www.childrens County, Kalb atlantageorgiatriallawyers.com/attorneys/ rights.org/pdfs/press_releases/DeKalbCounty (last vis- business_torts_lawyer_bramlett.html 5, 2008) (last June 20231.pdf visited Settle3% 8, 2007). Dec. ited Release, Rights, Settle- Children’s Press LLP, Bondurant, Jeffrey Mandates & Elmore Class-Action Lawsuit Mixson ment Atlanta, Profile, http://www. Foster Care Attorney Sweeping Reform of Bramlett O. 5, 2005), http://www.childrens Georgia (July atIantageorgiatriallawyers.com/attorneys/ (last rights.org/pdfs/press_releases/07-05-05.pdf vis- business_torts_lawyer_bramlett.html 5, 2008). (last 8, 2007). June visited Dec. ited sion nationally huge victory and a for the (“Clearly, S.Ct. at 3099 rights neglected of abused and children.”24 Valley was able to obtain counsel without It later referred to the “groundbreaking any promise of reward extraordinary case, agreement” settlement adding performance.”). agreement “appears to be first The enhancement, multi-million dollar nationally, its kind expect we beyond over and the full lodestar sum children throughout Georgia perhaps Lowry received, Ms. and her organization country elsewhere will benefit.”25 involuntary, amounts to an federal court The accomplishments of Rights Children’s ordered contribution from taxpayers in this case were discussed its annual Georgia non-profit organization. to a The report: “In fight we took the perverse irony figure, of the seven neglected America’s abused and chil- gratuity ordered in this case is that eight dren” to states.26 Georgia is listed in reduces the amount of state funds avail- report eight as one of the states where able to care for what Rights Children’s Rights Children’s fight.”27 took “the itself has described as some Georgia’s point Lowry is not that Ms. and her citizens,” “most very vulnerable group organization every don’t have reason to organization pro- dedicated to boast about their role in this case. The tecting. point is that their work in this case is For all of the discussed, reasons we have something that is in their interest to boast were we free to decide the issue we would about. It is not something that requires readily conclude that the district court’s more than the per hour that Ms. $495 $4,500,000 award of a enhancement to the Lowry received to attract her and her lodestar amount in this case is an abuse of organization to this case. This area of the discretion, because it is based on an erro- law is the sea in which sail and class neous view of the law and reflects a clear *26 action lawsuits are their chosen vessel. It judgment. error of they
is what They do. submitted three- fourths of the billable in hours this lawsuit. C. Except for relatively the insignificant trav hours, Unfortunately, el under they paid prior the high at the panel precedent rates demanded. rule we are suggest To not free to that the prospect huge issue, of a decide the monetary enhancement bonus was but must needed to attract instead them to this follow this lawsuit is Court’s earlier decisions only absurd, but it in also City demeans the NAACP v. Evergreen, 812 F.2d (11th dedication Lowry of Ms. Cir.1987), and her organization.1332 and Norman v. Cf Delaware Valley 478 U.S. at Housing Authority Montgomery, 836 . Release, Inc., 24. Press Rights, (last Children's In releases/3197_001.pdf visited June Nation, Ruling First of its Kind in 2008). Federal Judge Georgia in Neglected Rules Abused and Right Children Have Attorney to an While in Inc., Rights, 26. Report, Children's Annual at (Feb. 8, 2005), Custody State http://www. (2006-2007), http://www.childrensrights. childrensrights. org/pdfs/press_releases/02-08- org/pdfs/Annual% 20Report% 202006-2007. (last 05.pdf 2008). visited June (last pdf 2008). visited June Release, Inc., Rights, Press Children's Inc., Rights, Landmark Right Settlement Children’s Report, Guarantees the Annual Legal (2006-2007), Counsel for Neglected Abused and Chil- http://www.childrensrights. Atlanta, (Feb. 13, 2006), dren Georgia org/pdfs/Annual% 20Report% 202006-2007. http://www.childrensrights.org/pdfs/press_ (last pdf 2008). visited June on factor Cir.1988). based an enhancement of those (11th Both F.2d Supreme light princi- of these be made after the should were issued decisions of en- subject the spoke on ples.FN6 last Court representation
hancements Blum, assumption of how- The basic FN6. results, which was superior and ever, taken court will have that the district Valley I case. into ac- the benefit obtained such as factors of the rea- determination count in its initial case, attor- the NAACP In the that the is no indication sonable fee. There enhance- percent a 50 requested neys had In in this case. done so district court has amount, which was of the lodestar ment fact, limited appears the district court assertion based, “the part, to its of the results obtained consideration its prevailing and unsuc- to the the great benefit determination that obtained was relief remand, separable. On claims were cessful represent- Evergreen citizens of black account all take into district court should NAACP, 812 success.” exceptional ed put forth considerations relevant court de- the district After F.2d at 1336. determining effect of the re- NAACP in appealed request, obtained, nied well as the effect of as sults factors, remanded, calcula- on its initial Johnson other this Court vacated attorney's It should fee. of a reasonable tion opinion court’s district because part “[t]he has shown the NAACP then consider whether factor that all the last not address does initial of that grounds for an enhancement enhance- justified argued NAACP calculation. was of the relief obtained ment —that (citations NAACP, at 1337 & n. 6 F.2d of Ever- citizens to the black benefit great omitted). exceptional suc- represented green and pre- attorneys for In Norman in- remanding, In cess.” Id. requested had rights plaintiffs civil vailing structed: of the lodestar enhancement a substantial findings make should district court [T]he “quality of part on the based in amount grounds put each regard Norman, 836 provided.” warranting representation NAACP forward request denying find- relate those at 1297. In F.2d an enhancement re- determination “that its ultimate court found substantial ings to note, however, remanding, was issue. We if the lawsuit even were obtained sults held Court has them,” that an unnecessary to but obtain be of obtained would fact the results “because inappropriate enhancement *27 num- large to a far-reaching significance efforts of duplication of possibility of not usually grounds is of people ber charged improperly possibility ob- enhancement, the results because re- This Court 1297-98. Id. at hours.” factors, tained, the Johnson one be- of the enhancement the denial versed calcu- subsumed in normally will be applied.” standards were wrong “the cause therefore, and, fee a lation of reasonable at 1306. Id. indepen- provide not an usually should ex- so, Court the Norman doing In award. increasing the fee dent basis were the results obtained that “[i]f plained Blum, 886, 900, Stenson, 104 465 U.S. some enhancement then exceptional, L.Ed.2d 891 1541, 79 S.Ct. at 1302 for.” Id. called might be enhanced, (1984). may be The award at 564- Valley 478 U.S. (citing Delaware exceptional however, “in some cases 3098). It also stated 65, at 106 S.Ct. 897, at 1548 success.” are are results “[exceptional results 435, 103 Hensley, 461 U.S. (quoting rare,” not ordinary, unusual or of the out 1940). re- district court’s The law expected, “[t]he because that are those appropriateness of the consideration usually is faithful to teachings, its and so final in light fees awarded of the results unexpected outcome is not through litigation.”). obtained context of extant substantive law will not The NAACP and Norman decisions ordinarily exceptional.” Id. These both vacated district denying court orders among were the remand instructions superior enhancements for results and is- Norman case: sued remand instructions. Those instruc- Any begins enhancement with finding tions, Norman, especially the ones in con- exceptional; the results were a holding superior stitute results district court has also failed to address coupled superior performance can be
this issue with reference to the extant the basis for an enhancement of Accordingly, substantive law. the lode- we re- mand for reconsideration. In adjusting star amount. For the reasons we have lodestar, earlier, as has been noted already explained length, we are con- the court must take into account the vinced that holding wrong is and conflicts significance of the results obtained with relevant Supreme Court decisions. relation sought. to those It is at this Nonetheless, as a later panel we are point may that the court wish to make Mitchem, bound to follow it. Hurth v. adjustments for unsuccessful theories (11th 857, Cir.2005) (“[W]e F.3d dismissal of the case as to some parties. permitted to reach a result contrary to prior panel’s
Even if the court found the decision merely results because we obtained exceptional, to be no enhance ”); are convinced it wrong is .... Smith v. ment for these justified results would be (11th Corp., GTE 236 F.3d Cir. unless the court also finds that class 2001) (“The idea of an exception to the representation counsel’s superior prior panel precedent rule where a subse- that which would have been expected quent panel prior convinced the one Blum, considering requested. the rates wrong reached the result —for whatever 899, 104 465 U.S. at S.Ct. at 1549. reason —is also inconsistent with a number Norman, 1306; 836 F.2d at accord Ass’n of decisions in which panels of this Court Neptune Inc., Disabled Ams. v. Designs, obediently prior followed panel prece- (11th Cir.2006) (dicta) 469 F.3d dents were convinced wrong.”); (“The may adjust then the lodestar (“In id. at 1304 summary, the parties’ al- to reach a more appropriate attorney’s fee, argument ternative boils down posi- to the variety factors, based on a including the tion that [a decision of this incor- Court] degree success rectly interpreted applied [a (footnote omitted)); suit.” City Villano v. .... prior panel decision] Beach, Boynton 254 F.3d precedent clearly rule po- forecloses their (11th Cir.2001) (dicta) (“If the court deter- sition.”); Carver, Wascura v. 169 F.3d mines that the result obtained was an ex- *28 (11th Cir.1999) (“Wascura 687 argues that result, cellent then the award of fees ‘will the reasoning of [a decision of this Court] encompass all hours reasonably expended is unclear inadequate and support to its litigation, on the and in indeed some cases holding. We have no occasion to pass on of exceptional an success enhanced award ” criticism, that because we are (citation bound may justified.’ omitted)); decision regardless [that] Whisenant, of whether Duckworth v. we 97 F.3d (11th Cir.1996) (dicta) it.”); (“After agree with Steele, 1399 United States v. deter- (11th mining Cir.1998) (en the above, lodestar amount 147 F.3d the 1318 banc) (“Under court is adjust entitled to the amount of prior precedent rule, our a
1239
I is
nothing but dicta.
Valley
ware
holding
prior
a
one’s
overrule
cannot
panel
a matter of
wrong.”).
proposition is
it is
794.29 That
though convinced
even
those who
enhance-
necessity for
defend
Wilson,
the
is of
colleague, Judge
Our
performance and
superior
based on
ments
in
decisions
this Court’s
opinion
what the
produces,
the results it
because
correct,
are
and Norman
NAACP
Valley
in the Delaware
instructed us
can
amount
the
enhancements
unnecessary to
I decision is
that “it is
quality
allowed for
should be
superior performance
fee for
enhance the
exceptional
nature
representation
statutory
respect
purpose
we
in order to serve
obtained. While
of the results
views,
unpersuaded
legal assis-
enabling
we are
to secure
those
them.28
478 U.S. at
tance.”
should not
106
3098. We
essentially
concurring
opinion
The
instruction,
Geier
worry about that
in
of the Sixth Circuit
position
adopts
us,
assure
because
concurring opinion
(6th Cir.
Sundquist,
v.
Moreover,
attorney
when an
first ac-
superior performance. Any additional
cepts a
agrees
represent
case and
statements about
particular
evidence
explained
opinion,
As we
performance
earlier in this
rior
exceptional
results. Id.
reargument
Court carried over for
("The
the next
judgment below is therefore affirmed
term the issue of whether an enhancement for
upheld
attorney’s
insofar as it
the award of
contingency
proper.
risk was
See Delaware
fees for the work done in Phases II
IX
1241
I.
all
Valley
They
in Delaware
decision
opinion
in the
later
that come
in that case
holding
Supreme Court’s
hold-
contradict
most,
alternative
are,
additional
superior per
for
(“Furthermore,
un-
that fee enhancements
arewe
id.
ings. See
”
added)).
unnecessary.
results are
formance and
(emphasis
....
persuaded
not,
if
not bound
we were
We would
holding
if the first
stated
Even
rule to do so.
prior precedent
is that
opinion,
I
which
concluding
enhance-
opinions
The
superior perform
for
fee enhancements
appropriate
reasons are
ments for
those
results
unneces
exceptional
ance
mention,
grapple
much
fail to
less
also
two alternative
as one of
sary, is viewed
with,
Dague
of the
decision
part
it.
required
are still
follow
holdings, we
States,
related to
discusses enhancements
333
v. United
See Massachusetts
claims that have
747, 754,
merits of the federal
been
611, 623,
92 L.Ed.
U.S.
in
As we have
the lawsuit.
(1948);
Co. vindicated
Screw Anchor
Richmond
out,
331, 340,
already pointed
supra
see
States,
275 U.S.
v. United
(“It
(1928)
rejecting
in the course
enhancement
I the outcome agree with the would have uphold decision to been fee not, however, award in this ease. I different do had there been specific evidence my share colleague Judge Carnes’ view showing that an enhancement was neees- public grounds. and on benefit That cannot be. Clean Air Valley Citizens’ Council per- superior counsel’s to reflect sary (Delaware I), 478 U.S. id. at See
formance. *32 3088, (1986), that, (“Absent the L.Ed.2d 439 S.Ct. specific evidence isolation, in arguably that rates when charac say [the] cannot read contrary, we fully attorneys having do not as a cate three terizes Blum established ... for these representa- their of the quality gorical against the rule consideration reflect tion.”). representation the results quality 565, at at 3098 obtained. See id. 106 S.Ct. obtained, the results respect to the With (“[W]e in ... specifically held Blum that will factor likewise said that Court and the ‘re ‘quality representation,’ ... within other be subsumed “generally litigation pre from the are sults obtained’ fee,” calculate a reasonable used to factors sumably fully reflected the lodestar pro- normally “it should not and therefore amount, indepen and thus cannot serve as increasing basis for independent vide an increasing for the basic fee dent bases 900, 104 at Id. at S.Ct. the fee award.” Blum, 465 at 898- award.” U.S. (quoting hold, The did not howev- Court 1549-50. 1548-50)). Judge 104 S.Ct. at ob- er, of the results that consideration passage on this is mis Carnes’ reliance In categorically impermissible. tained is an placed for a number of As reasons. position, fact, opposite took the the Court matter, internally initial the statement from reiterating prior its Hens- statement providing while that inconsistent: has ex- plaintiff a obtained ley: “[WJhere indepen “cannot serve as named factors results, attorney should recover his cellent the basic fee increasing bases for dent Normally this fully compensatory fee. award,” the factors also indicates that reasonably ex- all encompass will hours only “presumably” are reflected litigation, and indeed pended on Thus, standing even lodestar amount. en- exceptional success an some cases of alone, provides uncertain statement may justified.” award hancement opinion’s con support Judge Carnes’ for Blum, at 1550 at S.Ct. 465 U.S. omitted) clusion. (internal quotation (quot- marks at at
ing Hensley, 461 U.S.
is not
significantly,
More
statement
1940).
Again, the Court indicated that
merely part
It is
holding
Court.
is whether
consideration
determinative
cit-
Blum and
summarizing
of a discussion
“show[ing] that
contains evidence
record
approval. A review
ing the
case
requires
upward
an
benefit achieved
clear
discussion as a whole makes
adjustment
to the
Id.
fee.”
to alter
purporting
was not
the Court
at 1550.
S.Ct.
Indeed,
way.
in the sentence
Blum
language
is-
immediately following
thus establishes
enhance-
Blum
sue,
holding
restated Blum’s
the Court
quality
representation
for
ments
adjustments
proper “in
are
upward
results,
not warranted
exceptional
while
cases, sup-
‘exceptional’
certain
‘rare’
cases,
sup-
permissible
are
where
most
on the
‘specific evidence’
ported
both
Therefore, to
by specific evidence.
ported
by the lower
detailed findings
record and
fac-
view that these
accept Judge Carnes’
Blum,
(quoting
465 U.S.
courts.” Id.
for an
grounds
can never be
enhance-
tors
1548-50).
ment,
to conclude that
one would have
“specific
evidence”
Court’s references
aspect
repudiated
has
Supreme Court
Blum
portions of
quoted from the
support for that
I find
of Blum.
little
necessary
showing
addressing
opinion cites
Judge Carnes’
proposition.
represen-
quality
based on
enhancement
v. Delaware
language
Pennsylvania
context,
attorneys’
language
performance,
tation.1 Read in this
As to the
“[V]iewing
cannot rea-
stated:
the evidence sub-
by Judge
opinion
cited
Carnes’
Valley to
its
sonably
departure
support
be characterized as a
mitted
Rather,
fees,
petition
attorney’s
it must be construed
there is no
from Blum.
Blum’s, teachings
why
con-
indication
the lodestar did not
as a reaffirmation of
reflecting
cerning
“quality
representation”
provide
a reasonable fee award
”
namely,
representation
....
“results obtained” factors:
presumably
applied
while these considerations are
The same conclusion
to the results
figure,
Valley presented
and cannot
no
reflected in the lodestar
obtained: “Delaware
*33
grounds
specific
as
for an enhancement
evidence as to what made the re-
serve
case,
...
presumption
‘outstanding,’
where that
is the
it obtained
so
nor
sults
may
by
any
evidence.
it
indication that
specific
provide
rebutted
did
the lode-
figure
portion
star
for this
of the case was
portions
Valley
of Delaware
I set-
far below awards made in similar cases
ting forth the
confirm
holding
Court’s
equally superior
where the court found
interpretation.
concluding
In
that the en-
quality
performance.”
of
Id. at
hancement awarded
the district court
Finally,
absolutely, reflected
Judge
opinion also
on lan-
Carnes’
relies
Moreover,
intended to es-
had the Court
guage in which the
en-
Court described
rule,
its entire discussion
tablish such
superior performance
hancements for
in the record
concerning
“unnecessary”
purposes
enabling
the deficiencies
legal
the lower
to secure
assistance. See
findings
the lack of
id. at
1247
superior
legal
to what consumers of
195 far
Hyatt
Apfel,
v.
exceptional”);
Cir.1999)
(4th
en
188,
(affirming
marketplace
in Atlan
legal
services
F.3d
192
obtained); Forshee
hancement for results
to
reasonably expect
ta could
receive for
527,
Indus., Inc.,
F.3d
532
178
v. Waterloo
rates used in the lodestar calculation.”
Cir.1999)
that,
(8th
justify en
(stating
(Kenny
A.
v. Perdue
Kenny
ex rel. Winn
and re
outstanding service
hancement for
(N.D.Ga.
III),
F.Supp.2d
A.
454
1288
sults,
establish
applicant “must
2006).
conclusion, the
support
In
of that
and the results
rendered
quality of service
cited affidavits submitted
four
rea
to what one
superior
obtained
attorneys
experience in the
with extensive
hourly
expect
light
sonably should
market,
legal
particularly
Atlanta
the number of hours
charged and
rates
id. at
litigation.
area of class action
See
omitted));
(internal
marks
quotation
expended”
attorneys
These
each stated that
Co.,
Quar
Tiffany &
v.
antino
claimed
counsel would
rates
Cir.1999) (“The
(2d
lodestar
F.3d
to reflect the
provide
a fee sufficient
factors,
adjusted based on several
may be
performed.
of the services
For ex
value
results obtained
including
particular
Fellows,
Henry D.
testified:
ample,
Jr.
” (internal
cita
quotation marks and
....
legal
In
current Atlanta market for
omitted));
Mountain
Cheyenne
Roe v.
tion
services,
Hourly Rates
the Standard
Resort, Inc., 124 F.3d
Conference
specified in the Declarations of Marcia
Cir.1997) (“The
(10th
n.
Jeffrey
Bram-
Lowry
Robinson
O.
adjusted
particu
suit the
figure may be
generally inadequate
lett would be
case, especially
lar circumstances
lawyers
compa-
to induce
insufficient
degree of success achieved
where the
skill,
repu-
judgment, professional
rable
Indus.,
Trinity
exceptional.”); Shipes
experience
perform
tation and
(5th Cir.1993)
(noting
F.2d
necessary
prosecute
services to
a case of
adjustments
based on
upward
the law-
magnitude
on terms where
and results obtained
representation
by specific
ongoing
evi
basis as
supported
yers
paid
where
are not
proper
findings by
record and detailed
performed,
dence on
are re-
being
the work is
*36
courts).
cases,
In
each of these
lower
expenses
to advance case
quired
$1.7
(at
implicitly) that
recognized
court
least
year period
a three
with no
million over
fundamentally
Valley I did not
reimbursement, and the law-
ongoing
en
controlling
regarding
law
alter
expense
ability to recover a fee
yers’
outstanding performance
hancements for
contin-
completely
reimbursement
Judge
opinion thus
and results.
Carnes’
the case.
on the outcome of
gent
only
decades of our
conflicts not
with two
R32:495:Ex.G:7;
Deck,
see also
[Fellows
also with the deci
jurisprudence,
own
but
Deck, R32:495:Ex.D:ll; Chandler
Knowles
courts.
sions of numerous other
Deck,
R32:495:Ex.F:7;
Deck,
Rawls
In the
of three of
view
R32:495:Ex.H:7.]
II.
attorneys,
multiplier
a 1.5-2
was nec-
these
case,
made
the district court
In this
line with
essary
bring the fee award into
to
findings
why
to
the lodestar
detailed
litiga-
action
comparable
in
class
awards
fully
quality
figure did not
reflect
in
Atlanta market:
tions
results
exceptional
and the
representation
required
account the work
Taking into
former,
the court
achieved. As to
for the
results
to achieve the
obtained
rendered
found that “the
of service
case,
in this
the level
class
plaintiff
counsel, including their extraordi-
by class
for
coun-
resources,
and risk entailed
class
expense
capital
nary commitment
prosecute
Judge
opinion
sel
this case over a three-
to
Carnes’
also faults the
year period
recovery
court
failing
give
with
of fee and district
for
to
sufficient
expenses, weight
testifying attorneys’
investment
in
to
in
advanced case
own
actually
securing
high
and fees
awarded
in terest
fee
courts
award
securities,
plaintiffs’
class actions in this
counsel in
But
district
this case.
deter
types
credibility
antitrust and. other
of non-civil minations as to the
and the
rights
presenting comparable
weight
clearly
cases
com-
of testimonial evidence are
risk,
plexity
multiplier
purview
of no less within the
of the district court in
than 1.5-2
amount
these
Childrey
times
circumstances.
See
(11th Cir.1993)
Bennett,
yield
... would
a reasonable fee consis-
997 F.2d
(“[I]t
prevailing prices
tent with
in the Atlanta
province
is the exclusive
legal
legal
compa-
market for
services of
judge
non-jury
trials to assess the cred
rable value.
ibility
assign weight
of witnesses and to
testimony.”).
their
Such determinations
Decl., R32:495:Ex.G:8;
[Fellows
see also
always involve an assessment of the fac
Decl., R32:495:Ex.F:8;
Chandler
Rawls
bearing upon
objectivity.
tors
a witness’s
Decl., R32:495:Ex.H:8.]
reasonably
It cannot
be contended that
Judge
opinion
Carnes’
discounts these
experienced
the able and
judge
ground
affidavits on the
that the factors
this case
possibility
never considered the
identified in them —the lack
ongoing
prominent
affiants —who are
At
payment,
the advancement of case ex-
lanta
attorneys might
be known
penses,
contingent
and the
nature of the
—
counsel,
or that
could de
recovery
fee
and reimbursement —cannot
rive an indirect benefit from
prece-
support an
agree
enhancement.
I
high
dential value of a
fee award. The
that conclusion
pertains
insofar as it
concluded, however,
that these con
contingency.
City
See
Burlington v.
outweighed by
siderations were
fac
other
557, 567,
Dague, 505 U.S.
tors that
probative
bolstered the
value of
(1992)
vations of
III,
Kenny A.
exceptional.”
this case:
a
F.Supp.2d
provided
at 1289. The court
superb quality
court finds that the
[T]he
summary
detailed
of the Consent Decree
far exceed-
representation
of [counsel’s]
that it
parties, finding
entered into
reasonably
expected
ed what could
provided “sweeping
plaintiff
relief to the
hourly rates used to
for the standard
“comprehensive
scope
in its
class” and was
Quite simply,
calculate the lodestar.
coverage.”
Id. Based
and detailed
its
brought
higher
a
de-
plaintiffs’ counsel
considerations, the court found
on these
commitment, dedication,
skill,
gree of
“extraordinary,”
the result achieved to be
litigation
to this
professionalism
“the contentiousness
particularly
light of
displayed by
than
has seen
the Court
litigation, complexity
of the issues
during
attorneys
any
other case
delays
uncertainties and
of further
and the
The foster
years
on the bench.
its
(internal quotation
at 1290
litigation.” Id.
of Fulton and DeKalb Counties
children
omitted).
truly
To underscore the
marks
un-
to have such
were indeed fortunate
outcome, the
nature of the
exceptional
and the
legal representation,
paralleled
“Af
experience:
cited its own
again
it
be remiss if
failed
Court would
attorney
years
practicing
ter 58
counsel for this extraordi-
compensate
unaware of
judge, the Court is
federal
to their clients.
nary level of service
has
plaintiff
in which a
class
other case
III,
1288-89;
Kenny
F.Supp.2d
A.
result on such
achieved such a favorable
(“[B]ased upon the
id. at 1286
see also
comprehensive scale.”
experience and fa
own substantial
Court’s
takes issue with
Judge
opinion
Carnes’
in Atlan
miliarity
prevailing
with the
rates
the remedial
the court’s statement
ta,
observation of the stel
and the Court’s
De-
the Consent
measures established
counsel
performance
lar
go beyond the relief
case,
cree
long and difficult
throughout
they pre-
obtained had
eminently
likely would have
hourly rates
requested
finds the
recognized, how-
they are
at trial. We have
anything,
If
vailed
fair and reasonable.
low.”).
ever,
nature of a re-
unexpected
too
*38
relevant
to the determination
sult is
awards,
it is well
In the area of fee
Norman,
exceptional.
it is
See
whether
court ...
is itself an
established that “[t]he
(“[A]n
that is not
at 1302
outcome
836 F.2d
question
may
consider
expert on the
of extant sub-
unexpected in the context
knowledge
experience
con-
its own
ordinarily
excep-
be
law will not
and stantive
proper
fees
cerning reasonable
tional.”).
exceptional results
finding
In
judgment
... as
may
independent
form an
here,
larly
in
comprehensive
the district court did not err
con-
relief.
It remedies
sidering
agreed
the fact that the remedies
existing
in
numerous
deficiencies
the deliv-
by
own ex-
upon
parties
exceeded its
ery
provides
of foster care services and
scope
as to the nature and
pectations
safeguards against future unlawful conduct
likely
litigation.
relief
to result from this
by
These
no
defendants.
results are
less
(“Exceptional
See id.
results are results
exceptional
Shipes.
than those obtained in
ordinary,
that are
unusual or
out
Additionally,
recognized
we
rare.”).
public
by
benefit created
a lawsuit is
Moreover,
recognized
other courts have
important
an
factor in the determination of
that results similar to those obtained here
City
a reasonable fee award.
In
v.
Villano
justify
can
example,
enhancement. For
(11th
Beach,
Boynton
of a fee this relevant to ment, Housing Authority are principles its and Norman v. (11th of the Con- provisions Through the case. Montgomery, 836 F.2d Cir. Decree, have obtained sent 1988). al- violations for the constitutional
redress my colleagues’ anything I not add do vindicating thereby complaint, leged holding opinions of the discussions class mem- rights of the constitutional acknowledge than to those cases other of the remedial scope bers. Given scholarly they are and well done. defendants, the by the agreed to measures writings will No doubt these additional litigation this is created public benefit jurists might Norman, of interest to who wish at 1302 be 836 F.2d See enormous. proceedings, of class-wide matter in further pursue that vindication (stating than significant more generally any is rights should arise. violation). constitutional
relief for isolated supports further consideration
This excep- that an enhancement
conclusion in this case.4 is warranted
tional success
III. in the dis- no of discretion
I find abuse made award. The court trict court’s fee America, UNITED STATES of did why the lodestar findings detailed Plaintiff-Appellee, representa- fully reflect the case, in this the results achieved tion and LAMONS, Defendant- supported by specif- findings and those Turhan Jamar I Because con- Appellant. ic in the record. evidence court’s decision is that the district clude No. 06-14427. controlling Supreme Court consistent I concur precedents, and Eleventh Circuit Appeals, United States Court only in the result. Eleventh Circuit. July
HILL, concurring: Judge, Circuit judgment. The enhance- I concur court is due to be
ment the district by the are bound
affirmed because we truly exceptional, far pub- opinion argues benefit created here Judge Carnes’ majority exceeding that achieved in by a lawsuit cannot be a lic benefit created III, Kenny type. A. this See supporting because cases of an enhancement factor ("After years prac as a right F.Supp.2d at 1290 every a federal bene- suit that vindicates Therefore, judge, ticing attorney the Court is way. and federal he public fits the in some plaintiff in which a other case argues, taking public benefit into account unaware a favorable result on every achieved such suc- class has result in an enhancement would scale."). Taking comprehensive this disagree. The fact such cessful fee case. I proper under the "re rights account is confers factor into every of federal vindication analysis, which asks whether obtained” public not mean that sults benefit does some the case was "out every present the outcome equal case. The benefit Norman, ordinary, rare.” point. unusual The district case underscores public F.2d at 1302. opinion demonstrates court’s