Plaintiffs-Appellants appeal from an order of the United States District Court for the Northern District of New York (Sharpe,
J.),
approving the settlement of a class action arising from alleged violations of the their constitutional rights, but awarding less than the requested fee to their attorneys from the common fund established by the settlement. Rather than base its attorneys’ fees calculation on a percentage of the fund, the district court elected to calculate fees using a variant of the lodestar method described by this Court in
Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany,
BACKGROUND
On October 19, 2001, this Court issued its decision in
Shain v. Ellison,
On June 29, 2004, Appellants Nichole Marie McDaniel and Lessie Lee Davies filed a complaint in the United States District Court for the Northern District of New York on behalf of themselves and others similarly situated, asserting that the Schenectady County Sheriffs Department maintained a policy, implemented by senior officers including Appellees Harry Buffardi, Gordon Pollard, and Robert Elwell, of strip-searching all individuals who were incarcerated at the Schenectady County Jail and placed in jail clothing, regardless of the crime with which they were charged. The complaint sought compensatory and punitive damages, as well as declaratory and injunctive relief. The parties vigorously litigated this action for a period of more than three years, with various attorneys for the plaintiff class spending more than 1000 hours working on the case.
Throughout the course of the litigation, Appellees maintained that the class members were merely “required to change into jail uniforms in the presence of a corrections officer of the same sex” and that the Schenectady County Jail had no formal policy of strip searching all detainees. Ultimately, however, they agreed to the terms of a settlement, pursuant to which Appellees agreed to substantial injunctive relief and the creation of a settlement fund totaling $2.5 million. The settlement agreement, signed on July 31, 2006, indicated that Appellants’ counsel would petition the court for an award of attorneys’ fees “in the amount not to exceed 26%” of the total settlement fund, and also provided for the separate reimbursement of administrative expenses.
During the litigation of this case, counsel for Appellants also acted as counsel for the plaintiffs in two other actions — each initiated prior to the filing of the complaint in this case — alleging that other counties in New York maintained impermissible strip search policies.
See
Complaint,
Kahler v. Rensselaer County,
No. 1:03-cv-1324,
On September 5, 2007, the district court in this case conducted a final fairness hearing regarding the proposed settlement agreement, during which it issued an oral decision regarding the acceptability of the agreement. In determining the proper fees to be awarded to counsel from the common fund, the court noted its duty to act as “a guardian of the rights of absent class members” and the resulting need to “approach fee awards with an eye to moderation.” Oral Decision at 9. Further observing that the calculation of a reasonable fee was committed to its sound discretion, the court indicated that “[i]n the past, both the lodestar and the percentage of fund methods have been available to district judges in calculating attorneys’ fees in common fund cases,” and provided a brief explanation of each approach. Id. at 9-10. As the court noted, under the lodestar method:
[T]he district court scrutinizes the fee petition to ascertain the number of hours reasonably billed to the class and then multiplies that figure by an appropriate hourly rate[.] [Ojnce that initial computation has been made, the district court may, in its discretion, increase the lodestar by applying a multiplier based on other less objective factors such as the risk of litigation and the performance of the attorneys.
Id.
at 9. The court stated that the percentage method, by contrast, involves setting “some percentage of the recovery as the fee,” and recognized that, whether using the percentage method or lodestar method of calculating attorneys’ fees, a court is guided by the factors articulated by this Circuit in
Goldberger
in determining a “reasonable common fund fee.”
Id.
at 9-10;
see Goldberger
The district court then embarked upon a discussion of this Court’s decision in
Arbor Hill Concerned Citizens Neighborhood
Association
v. County of Albany,
*414 The better course [and] the one most consistent with attorneys’ fees jurisprudence is for the district court, in exercising its considerable discretion, to bear in mind all of the case specific variables that this court and other courts have identified as relevant to the reasonableness of attorneys’ fees in setting a reasonable hourly rate. Accordingly, the reasonable hourly rate is the rate a paying client would be willing to pay.
*415 Drawing upon “the factors ... outlined,” the District Court then determined that application of the percentage method would be inappropriate, choosing instead “to determine what amount [was] reasonable using the factors articulated in Goldberger and the most recent Arbor Hill decision.” Id. at 12. Regarding the first Goldberger factor, the time and labor expended by counsel in the course of prosecuting the case, the district court recognized that “class counsel put substantial time and effort into this case,” but also concluded that this time and effort was sufficiently compensated by awarding fees determined by the attorneys’ ordinary hourly rates. Id. at 12-13. Moreover, the court indicated that a multiplier was inappropriate in light of the fact that counsel had previously worked on two similar cases in the same judicial district, in which “some of the ground work for this litigation was already established.” Id. at 13. As to the second factor, the complexity of the case, the district court determined that the case at bar was “not particularly complex” as it was “an ordinary civil rights case in which liability appeared] reasonably certain.” Id. With regard to the third factor, the risks involved in the particular litigation, it found that “liability was reasonably certain” and that although “there was risk on the issue of damages,” that risk was of little importance to counsel, who would have been statutorily entitled to attorneys’ fees as the prevailing party in a § 1983 action, even if only nominal damages were awarded. Id. at 13-14. The court further noted that, as to the fourth factor, the quality of representation, counsel “did a fine job,” but were adequately compensated by the ordinary hourly rate counsel charged. Id. at 14. As to the fifth factor, the portion of the overall settlement allocated to attorneys’ fees, the percentage arising from its use of the Arbor Hill method (roughly 13%) was “squarely within the range of reasonable percentages in such a case” as the instant one. Id. With regard to the last Goldberger factor, public policy, the district court took note of “the compelling public policy reasons for keeping an eye on attorneys’ fees in class action cases.” Id. at 15. Finally, the court briefly noted that Arbor Hill also required a district court to consider whether the burden of litigating the case had precluded an attorney from accepting other gainful employment.
After this discussion, the district court repeated its decision not to employ the percentage method or apply any type of multiplier to the fee calculated by multiplying the attorneys’ hourly rates by the number of hours worked. At the same time, the court observed that it was awarding attorneys’ fees based upon the rates *416 ordinarily billed by class counsel, even to the extent that those rates were substantially higher than the prevailing rate in the Northern District of New York. This method yielded attorneys’ fees in the amount of $344,795. The district court also allowed the reimbursement of $9,001.50 in litigation expenses and $107,000 in administrative expenses. The total award thus amounted to $460,796.50.
After counsel for Appellants objected to the reduction of their fees, the district court clarified its reliance upon Arbor Hill in the following fashion:
What I’m saying about Arbor Hill is this, I’m simply dispensing with the classic definition of the lodestar method. If that were to be applied as the way it was consistently applied, it would be irrelevant where an attorney was from, it would be what the prevailing rate is for attorneys in this area. That’s the aspect of Arbor Hill that I’m dispensing with when I say that’s no longer the standard of what constitutes a reasonable attorney’s fee. That is as substantial an explanation why some of the fees as calculated in the fee schedule submitted by class counsel, they would have exceeded that traditional rate in the Northern District of New York. I’ve not discounted them as a result of that. That’s the impetus of the Arbor Hill decision.
Oral Decision at 26-27.
On November 5, 2007, the district court issued a final decision and order approving the settlement and explicitly incorporating the content of its oral decision, including the award of attorneys’ fees. The court slightly increased the total amount to be paid to counsel, granting attorneys’ fees in the amount of $343,744.50, reimbursement of litigation expenses in the amount of $10,053.31, and administrative expenses in the amount of $107,233.40, resulting in a final award of $461,031.21.
This appeal followed.
DISCUSSION
We review a district court’s award of attorney’s fees for abuse of discretion,
Goldberger v. Integrated Res., Inc.,
In challenging the district court’s attorneys’ fee determinations, Appellants make several arguments. First, they contend that the district court committed legal error by failing to calculate attorneys’ fees using the percentage method, suggesting “[t]he percentage method is the presumptive, preferred method” in this Circuit. Appellants’ Br. at 9. Second, Appellants suggest that the district court improperly relied on Arbor Hill to justify its decision not to use the percentage method, since that ease and others cited by the court involved statutory fee shifting rather than *417 a common fund. Third, they assert that, whether or not the district court was within its discretion in employing a modified-lodestar method to calculate attorneys’ fees, it committed errors in its application of the Goldberger factors, including the use of an unprecedented factor to penalize counsel for their experience in litigating similar cases. We consider each of these arguments in turn.
I. The District Court’s Decision Not to Employ a Percentage-of-Fund Method
Appellants contend that the district court failed to consider basing its calculation of attorneys’ fees on a percentage of the fund secured by counsel, that it flouted a “clear trend in the law towards [using] the percentage method,” Appellants’ Br. at 11, and even that it defied an instruction by the Supreme Court in
Blum v. Stenson
requiring the use of the percentage method in common fund cases,
see
Appellants’ assertion that the district court “refused to consider using the percentage method at all,” Appellants’ Br. at 15, is factually incorrect. The court described both the lodestar method and the percentage method of calculating attorneys’ fees in its bench decision before indicating that it would apply a variant of the former.
2
In its written decision and order approving the settlement, the court reiterated its decision to use neither a lodestar multiplier nor the percentage method in calculating the fee award. Thus, the “assertion that the district court erroneously refused even to consider using the percentage approach is squarely contradicted by the record.... [T]he court clearly understood that it could have awarded a percentage fee in this case. It simply chose not to do so.”
Goldberger,
Although we have acknowledged that “the trend in this Circuit is toward the percentage method,” it remains the law in this Circuit that courts “may award attorneys’ fees in common fund cases under either the ‘lodestar’ method or the ‘percentage of the fund’ method.”
WalMart Stores, Inc. v. Visa U.S.A., Inc.,
Appellants nonetheless urge this Court to adopt the percentage method as the presumptive approach to fee awards or to abandon the lodestar approach altogether, noting that several other circuits have done so. This court has considered the advantages and disadvantages of the lodestar and percentage methods previously, see
Goldberger,
The lodestar method is not perfect. It creates an incentive for attorneys to bill as many hours as possible, to do unnecessary work, and for these reasons also can create a disincentive to early settlement.
See id.
at 48-49 (citing
Savoie,
But the percentage method has its limitations as well. As we indicated in
Goldberger,
this Circuit’s adoption of the lodestar method was precipitated by the perception that percentage fees “tended to yield too little for the client-class, and an unjustified ‘golden harvest of fees’ for the lawyer.”
Moreover, although the percentage method has the advantage of aligning the interests of plaintiffs and their attorneys more fully by allowing the latter to share in both the upside and downside risk of litigation, it can create perverse incentives of its own, potentially encouraging counsel to settle a ease prematurely once their opportunity costs begin to rise.
See
Coffee,
Understanding the Plaintiffs Attorney
at 687-90. And as in the case of the lodestar method, neither defense counsel nor the actual plaintiffs have much of an incentive under the percentage-of-fund approach to oppose an award of attorneys’ fees, the latter since “[t]hey have no real incentive to mount a challenge that would result in only a ‘minuscule’
pro rata
gain from a fee reduction.”
Goldberger,
In short, neither the lodestar nor the percentage-of-fund approach to awarding attorneys’ fees in common fund cases is without problems. It is for reasons such as those just discussed that in
Goldberger
we declined to “junk” the lodestar method in favor of the presumptive or exclusive use of the percentage method,
see id.
at 47-53, and instead left the decision as to the appropriate method to “the district court, which is intimately familiar with the nuances of the case.”
Id.
at 48. While Appellants assert that there would be a benefit in allowing “district judges ... [to] step away from the business of analyzing and reviewing attorneys’ fee applications,” Appellants’ Reply Br. at 9, we underscore the importance of the district court’s duty “to act as a fiduciary who must serve as a guardian of the rights of absent class members,”
City of Detroit v. Grinnell Corp.,
II. The District Court’s Reliance on Arbor Hill
Appellants also contend that the district court impermissibly relied on this court’s decision in
Arbor Hill Concerned Citizens Neighborhood Association v. County of Albany,
At the start, we note that it is unclear how any error in the district court’s decision to use Arbor Hill’s modified lodestar approach, even assuming such error occurred, could compel a finding that the court should have used the percentage method instead. Given that a district court has the discretion to choose either the lodestar or percentage-of-fund approach in calculating attorneys’ fees, see supra Section I, any error in a court’s application of the lodestar method would not necessitate selection of the percentage method on remand.
To the extent that Appellants’ argument depends on the inference that, had the district court not referenced
Arbor Hill,
Appellants’ suggested 26% fee would have seemed more reasonable, an analysis of
Arbor Hill
and the district court’s reliance on that decision shows that Appellants’ concern is unfounded. In
Arbor Hill,
this Court proposed the use of a modified version of the lodestar approach and recommended abandonment of the term “lodestar” for the alternative term “presumptively reasonable fee.”
Arbor Hill also indicated that the district court in that case had been unduly restrictive in its interpretation of the “forum rule,” though it ultimately upheld the district court’s decision to deny the request of plaintiffs’ counsel to calculate their hourly fees based on their home district, rather than the less expansive prevailing rates in the district where the litigation occurred. See id. at 190-94. In clarifying the forum rule, the Court held that:
[A] district court may use an out-of-district hourly rate — or some rate in between the out-of-district rate sought and the rates charged by local attorneys- — -in calculating the presumptively reasonable fee if it is clear that a reason *421 able, paying client would have paid those higher rates. We presume, however, that a reasonable, paying client would in most cases hire counsel ... whose rates are consistent with those charged locally. This presumption may be rebutted — albeit only in the unusual case — if the party wishing the district court to use a higher rate demonstrates that his or her retention of an out-of-district attorney was reasonable under the circumstances as they would be reckoned by a client paying the attorney’s bill.
Id. at 191. The Court further indicated that “the reasonableness of a prevailing party’s decision to retain out-of-district counsel is best considered in setting the hourly rate — rather than deciding whether to adjust a presumptively reasonable fee,” since, inter alia, this approach comported with the focus on market rates underpinning Arbor Hill’s “presumptively reasonable fee” approach. Id. at 191-92.
In the instant case, the district court observed early in its bench decision that the Plaintiffs’ suggested fee award of 26% represented, in its estimation, a multiplier of 1.98-2.24 beyond what counsel would have earned based on their hourly rates. Appellants suggest that to the extent the district court’s impression of the multiplier as being too large may have been responsible for its disinclination to base attorneys’ fees on a percentage of the fund, the court’s reliance upon Arbor Hill worked to their detriment. In clarifying its understanding of that case, however, the court indicated that if “[the traditional lodestar method] were to be applied ... it would be irrelevant where an attorney was from, [and the appropriate rate] would be what the prevailing rate is for attorneys in this area.” Oral Decision at 26. The court then stated that “some of the fees as calculated in the fee schedule submitted by class counsel ... would have exceeded [the] traditional rate in the Northern District of New York. I’ve not discounted them as a result of that.” Id. at 26-27. In other words, had the district court not referenced Arbor Hill, and instead relied on its understanding of the forum rule as traditionally applied, Appellants’ suggested 26% fee would have represented an even higher multiplier of the lodestar. If Appellants are correct that the court’s assessment of the multiplier contributed to its decision not to use a percentage-based approach, the court’s reliance on Arbor Hill cannot have hurt them. 6
In any event, we find no error in the district court’s reliance on
Arbor Hill
in this case. At bottom, Appellants’ arguments regarding
Arbor Hill
are founded upon the assumption that the lodestar method applied in the common fund context is distinct from that employed in the statutory fee-shifting context. While it is true some district courts in this Circuit have expressed uncertainty as to the relevance of
Arbor Hill
in common fund cases,
see In re Ramp Corp. Sec. Litig.,
No. 05
*422
Civ. 6521,
To the extent that the specific factors considered by courts in the common fund and statutory fee-shifting contexts are somewhat different,
compare Wal-Mart,
III. The District Court’s Application of the Goldberger Factors
Appellants’ final arguments concern the district court’s application of the case-specific factors elucidated in Goldberger for determining the reasonableness of a common fund fee. Appellants contend that, in addition to committing errors in relation to each of these factors, the district court “invented” an additional factor, holding the attorneys’ experience in litigating strip search cases against them, when in fact their experience should have weighed in favor of a higher fee.
The
Goldberger
factors are applicable to the court’s reasonableness determination whether a percentage-of-fund or lodestar approach is used,
see Wal-Mart,
We address first Appellants’ contention that the district court improperly counted the attorneys’ experience in litigating strip search cases against them when that factor should have counted, if at all, in favor of the higher proposed fee award. Although attorney experience is not explicitly enumerated among the
Goldberger
factors, it is clear that experience might be relevant to several of them, including consideration of the time and effort expended by counsel, the complexity of the litigation, and quality of the representation. In
Goldberger
itself, this Court upheld the district court’s decision to award a lodestar fee with no multiplier in part based upon its observation that the attorneys had been “helped enormously” by the “spadework” performed by federal authorities in actions against the same defendants and because the legal issues presented were not novel.
Here, the advance spadework that assisted counsel in their suit against the County of Schenectady did not involve the previous unearthing of facts regarding the specific defendants, but rather the prior mining of relevant case law and shoring up of legal arguments that the district court reasonably concluded to have occurred during the course of two prior actions alleging unconstitutional strip search policies. The district court’s decision to consider the benefit afforded to counsel by this experience — relevant to several of the Goldberger factors — does not constitute an error of law. Nor does Appellants’ observation that experience might in some cases enable counsel to demand a higher fee make the district court’s conclusion that it cut the opposite way in this case clearly erroneous. Indeed, our prior case law indicates that whether a given factor cuts in *424 favor of or against the use of a multiplier depends heavily on the facts of a case. The level of risk associated with litigation, for example, which is “perhaps the foremost factor” to be considered in assessing the propriety of a multiplier, and typically weighs in its favor, can weigh against the use of a multiplier when the magnitude of risk stems only from a lawsuit’s dubious legal merit. See id. at 54 (internal quotation marks omitted).
We similarly see no clear error in the district court’s remaining determinations as to the
Goldberger
factors. Appellants find fault with the court’s determination regarding the first factor, that counsel were adequately compensated for their time and effort using their ordinary rates, and suggest that here attorney experience should have weighed in favor of some multiplier. They further criticize the court’s finding regarding the fourth factor, quality of representation, and urge that the fact that class counsel “did a fine job and obtained a good settlement,” Oral Decision at 14, also should have counted in favor of a higher award. We have already addressed the experience argument, and for similar reasons find Appellants’ contention regarding their performance to be insufficient to show clear error. Even in
Goldberger,
where counsel were praised by the district court as “the cream of the profession” whose “genius and dedication were vital in resolving the complexities of the litigation,” this Court upheld a fee award with no multiplier.
Nor are we convinced that
Goldberger
factors two and three, the complexity and risk associated with the litigation, compel a higher fee award than that granted by the court below. In response to the district court’s conclusion that the case was “an ordinary civil rights case in which liability appeared] reasonably certain,” Oral Decision at 13, Appellants contend that the case was “far from simple,” Appellants’ Br. at 24, that this Circuit’s holding in
Shain
regarding the unconstitutionality of misdemeanor strip searches was “far from stable” at the time of their suit,
Id.
at 25 (quoting
McBean v. City of New York,
Appellants’ assertions that the defendants in this case possessed potentially valid defenses and that damages were difficult to prove are similarly insufficient to demonstrate clear error in the district court’s findings with respect to litigation risk. Counsel must do more than “point to ... general hurdles — such as the defenses available to defendants” — and “argue that because their fee was entirely contingent on their ability to overcome such hurdles, they
must,
as a matter of law, be compensated by a fee enhancement.”
Goldberger,
Finally, we reject Appellants’ assertions that the district court erred in its findings as to the fifth and sixth
Goldberger
factors, the reasonableness of the fee in relation to the size of the settlement and public policy considerations relevant to fee awards. Appellants’ argument with regard to the former essentially repeats their “benchmark” assertion that the fee award in this case was too far from the percentage-of-fund awards in similar cases, adding that the district court erred in its assessment that an award equivalent to 13% was “squarely within the range” of typical awards and that Appellants’ suggested lodestar multiplier was at the low end of multipliers that have often been awarded. While Appellants cite to
Nortel
as demonstrating this Court’s concern over a district court’s failure to consider awards in similar cases, that case
upheld
a fee award despite its disparity from other awards.
See
We are mindful that public policy supports the pursuit of meritorious class action litigation to vindicate constitutional rights. Appellants suggest that some reward beyond the ordinary remuneration for legal services is needed to ensure that such suits are brought by competent counsel. “On the other side of the ledger, however, is our longstanding concern for moderation.”
Goldberger,
CONCLUSION
For the foregoing reasons, the order of the District Court appealed from is AFFIRMED.
Notes
. Because unclaimed portions of the fund reverted to the defendant, attorneys' fees as a percentage of the fund actually paid to plaintiffs were ultimately higher.
See Nilsen v. York County,
. While the Arbor Hill panel indicated its preference for abandonment of the term "lodestar” altogether, the approach adopted in that case is nonetheless a derivative of the lodestar method. To emphasize the similar role of both the lodestar method and Arbor Hill’s method as alternatives to the percentage-of-fund approach, we refer to Arbor Hill’s approach as a "variant” or "modified” lodestar method throughout this opinion.
. In addition to the cases and other sources cited
infra, see In re Auction Houses Antitrust Litigation,
. The district court in this case relied on the original version of the
Arbor Hill
opinion.
See
As Appellants note, the district court also referred to other statutory fee-shifting cases, including
Porzig v. Dresdner, Kleinwort, Benson, North America LLC,
. The Court’s dissatisfaction with the term "lodestar” stemmed from its sense that the term had lost its meaning in the sense of a "star that leads,” since the number generated by the first step of the traditional lodestar approach, by definition, did not incorporate case-specific factors that would enable it to correctly approximate a market hourly rate for fees. See id. at 189-90.
. We note in passing that this Court's recent decision in
Simmons v. New York City Transit Authority,
. We do not suggest that concerns present in the common fund and statutory fee-shifting contexts are identical in every respect,
compare Goldberger,