Counsel Fees As A Remedy

Counsel Fees - Remedies Spring 2015
George W. Conk
Adjunct Professor & Senior Fellow,
Stein Center for Law & Ethics
gconk@law.fordham.edu
Room 8-122
212-636-7446
Counsel Fees fall 2014 remedies
How lawyers fees are set
Free market pricing

lodestar/reasonable and
customary
Court rules
Court decisions in fee-shifting

and common fund cases
Statutes
The American Rule

Each party bears its own
costs
What policy
considerations support the
rule? Or militate against
it?
When does the loser pay?
Courts of equity
By contract
Statutory exceptions to
American Rule
Counsel fees as an item of

damage
Breach of fiduciary duty

Legal malpractice loser pays
As an item of damage
As a matter of policy
- e.g. egregious conduct
- matrimonial
- breach of fiduciary duty
N.J. Rule 4;42

(1) In a family action
(2) Out of a fund in court.
(3) In a probate action, if

probate is refused
(4) In an action for the

foreclosure of a mortgage, (rates
specified)
(5) In an action to foreclose a tax

N.J. Rule 4;42

(6) In an action upon a liability
or indemnity policy of insurance,
in favor of a successful claimant.
(7) As expressly provided by
these rules with respect to any
action, whether or not there is a
fund in court.
(8) In all cases where attorney's
fees are permitted by statute.
Statutory limitations
Statutes: e.g. fees barred in
Veterans claims, limited (e.g.
$200 in UI appeals), PD `pool
attorneys , 14B NY, Federal
panel fees, appointments by
courts per Gideon v. Wainwright
Cap and review: Social security
disability
Awarded by court: e.g. workers
compensation
Contingent tort fee limits
Fees, costs, taxed costs,

disbursements, prejudgment interest
Taxed Costs
Counsel fees
Expert witnesses, discovery

expenses
as part of the costs
Fee shifting statutes standards vary
* ERISA 29 USC 1132: - by
participant or beneficiary
discretionary
some degree of success on the

merits.
But in a collection action

mandatory
10
EAJA 28 U.S.C. 2412
Under the Equal Access to Justice

Act, a court in a civil action against
the United States shall award to a
prevailing party other than the
United States fees and other
expenses . . . incurred by that party
if the position of the United States
was not substantially justified.
Cap: $125 + COLA
11
Most commonly used fee shifting

statutes
Title VII in its discretion..to

prevailing partyincluding
expert fees as part of the costs
42 U.S.C. 1988
State Laws against

discrimination
12
Buckhannon Legislative history

The House Report to 1988 states
that "the phrase 'prevailing party' is
not intended to be limited to the
victor only after entry of a final
judgment following a full trial on the
merits, " H. R. Rep. No. 94-1558
Senate Report explains that "parties
may be considered to have prevailed
when they vindicate rights through a
consent judgment or without formally
obtaining relief"
13
Buckhannon v. WVA (2001)
Catalyst theory rejected

Prevailing means that there is a
court-ordered change in the legal
positions of the parties.
- judgment or consent order
- legislative history ambiguous
- counsel fees should not be a
second major litigation
14
Buckhannon - Dissent
Until today parties who obtained

the relief they sought ..ordinarily
qualified as prevailing parties so
that courts had discretion to
award them costs and fees
15
Buckhannon Scalia concurring)
there is all the differnce in the

world between a rule that denies the
extraordinary boon of attorneys fees
and a rule that causes the law to
be the instrument of wrong
exacting the payment of attorneys
fees to the extortionist
16
Patent cases - 35 U.S.C. 285
Patent infringement fee shifting is:
- discretionary
- exceptional cases
- intentional infringement cases
- the patent troll problem

17
Copyright cases 17 USC 505
In any civil action under this title, the

court in its discretion may allow the
recovery of full costs by or against
any party other than the United
States or an officer thereof.
Except as otherwise provided by this
title, the court may also award a
reasonable attorneys fee to the
prevailing party as part of the costs.
18
FRCP 23 common fund
(h)ATTORNEY'S FEES AND

NONTAXABLE COSTS.
In a certified class action, the

court may award reasonable
attorney's fees and nontaxable
costs that are authorized by law
or by the parties agreement.
19
FRCP 54 Judgment (d) Costs; Attorneys

Fees
(2) Attorney's Fees.

(A) Claim to Be by Motion. A claim for
attorney's fees and related nontaxable
expenses must be made by motion
unless the substantive law requires
those fees to be proved at trial as an
element of damages.
20
FRCP 54 (2)(B) Motion for Attorneys Fees
(ii) specify the judgment and the

statute, rule, or other grounds entitling
the movant to the award;
(iii) state the amount sought or provide
a fair estimate of it; and
(iv) disclose, if the court so orders, the
terms of any agreement about fees for
the services for which the claim is
made.
21
R. P. C. 1.5 - A Reasonable Fee
(a) A lawyer shall not make an

agreement for, charge, or collect
an unreasonable fee or an
unreasonable amount for
expenses.
22
RPC 1. 5 FACTORS
1) the time and labor required,

the novelty and difficulty of the
questions involved, and the skill
requisite to perform the legal
service properly
(2) the likelihood, if apparent to
the client, that the acceptance of
the particular employment will
preclude other employment by
the lawyer
(3) the fee customarily charged
in the locality for similar legal
23
(4) the amount involved and the

results obtained
(5) the time limitations imposed
by the client or by the
circumstances
(6) the nature and length of the
professional relationship with
the client
(7) the experience, reputation,
and ability of the lawyer or
lawyers performing the services
(8) whether the fee is fixed or
24
OBannon v. NCAA Sherman Act
Plaintiffs challenged the rules barring

student athletes from receiving a
share of the revenue that the NCAA
and its member schools earn from
the sale of licenses to use the
student-athletes names, images,
and likenesses in videogames, live
game telecasts, and other footage.
25
15 U.S.C. 26 Private Actions
Any person, firm, corporation, or

association shall be entitled to sue
for and have injunctive relief
against threatened loss or damage
by a violation of the antitrust laws
In any action under this section in
which the plaintiff substantially
prevails, the court shall award
the cost of suit, including a
reasonable attorney's fee, to such
plaintiff.
26
The lodestar
Reasonable
rates
x
reasonable hours
=
The lodestar
27
Not only fees, but attitudes shift

City of Burlington v. Dague, 112 S. Ct. 2638 (U.S. 1992)
JUSTICE SCALIA delivered the opinion of the Court.
Just as the statutory language

limiting fees to prevailing parties
bars a prevailing plaintiff from
recovering fees relating to claims on
which he lost, so should it bar a
prevailing plaintiff from recovering
for the risk of loss.
28
Factors in setting the lodestar
(1) the novelty and complexity of the

issues
(2) the special skill and experience
of counsel
(3) the quality of representation ...
(4) the results obtained
Morales v. City of San Rafael, 96 F.3d
359 (9th Cir. 1996)
29
Setting and adjusting the lodestar
Plaintiffs counsels historical

hourly rates are reasonable by
any measure.
Why historical rates?
Plaintiffs counsels historical
hourly rates are all the more
reasonable in light of the novelty
and complexity of the issues, the
results obtained, and the high
risk of non-recovery
Is this a contingent fee
30
Financing the litigation

Recoverable costs:
$5,555,739
Of which Taxed costs: $215,
709
(28 USC 1920)

How did they finance this?
Should they recover interest for $
disbursed?
For all their overhead?
31
Baxter v. Crown Petroleum (N.D. Tex.)
A reasonable fee
Lodestar
- Johnson factors
Contingent fee
32
Buckhannon v. WVA (2001)
Who is a prevailing party?
The catalyst theory Is it extortion?
change in legal position
parties have prevailed when they

vindicate rights through a consent
judgment or without formally
obtaining relief
33
Contingent fees
Lawyers working on spec
34
Contingent Fees R. 1.5
Generally permitted
Must be written retention

agreement
Basis of calculation must be

stated
Litigation expenses deducted or

not
35
Contingent Fees - generally

The norm for plaintiffs in PI
cases, workers compensation, SS
disability, subrogation claims,
debt collection
Closely regulated in PI cases by
statute and rule
Barred in
- criminal defense
- marriage dissolution & child
support cases
36
R. 1.5 (d) A lawyer shall not
Enter into an arrangement for,

charge or collect:
1) any fee in a domestic relations
matter, the payment of which is
contingent on divorce or the amount
of alimony or support or property
settlement in lieu thereof
2) a contingent fee for representing a
defendant in a criminal case
37
R. 1.5 Contingent Fees Permitted
(c) in a writing signed by the

client
shall state the method by which

the fee is to be determined,
including the percentage or
percentages that shall accrue to
the lawyer in the event of
38
Expenses
whether such expenses are to be
deducted before or after the
contingent fee is calculated
In the event of loss
must clearly notify the client of any
expenses for which the client will
be liable if the client does not
prevail
39
Accounting
the lawyer shall provide the
client with a written statement
stating the outcome of the
matter and, if there is a
recovery, showing the
remittance to the client and the
method of its determination
40
The criminal defense ban
In Commonwealth v. Facella, 679

N.E.2d 221, 226 (Mass. App. Ct.
1996) defendant was charged with
armed assault with intent to murder
the retainer agreement provided that
defense counsel Beatrice
would be paid an additional $ 15,000
if he negotiated a sentence of no
more than ten years. He did so.
Should such contracts be barred?
41
Contingent Fees - New York

NY CLS Jud 474
PI and wrongful death claim

contingent fees are set by each of
the four Judicial Departments
BUT
Medical malpractice fees are set
by 474
Infant and guardian fees set by
court
42
SUPREME COURT RULES 3rd JUDICIAL DEPT.

ARTICLE 1. APPELLATE DIVISION
SUBARTICLE B. ATTORNEYS
NY CLS Sup Ct 806.13 (a) (2007)
The receipt, retention or sharing

of contingent compensation in
excess of the schedule of fees
shall constitute the exaction of
unreasonable and unconscionable
compensation
43
SUPREME COURT RULES 3rd JUDICIAL DEPT.

ARTICLE 1. APPELLATE DIVISION
SUBARTICLE B. ATTORNEYS
NY CLS Sup Ct 806.13 (a) (2007)
SCHEDULE A
(1) 50 per cent on the first $ 1,000 of the sum
recovered,
(2) 40 per cent on the next $ 2,000 of the sum
recovered,
(3) 35 per cent on the next $ 22,000 of the
sum recovered,
(4) 25 per cent on any amount over $ 25,000

of the sum recovered
44
Extraordinary result
may justify higher
fee
SCHEDULE B
A percentage not exceeding
33 1/3 % of the [net or gross*]

sum recovered
No additional compensation
because of extraordinary
circumstances may be sought
45
How the fee is computed NYCRR

691.20
Net sum recovered

after deducting
expenses and disbursements for
Filing fees
Depositions
Medical records
Expert witnesses
Investigative or other services
UNLESS LAWYER ADVANCES
COSTS
46
How the fee is computed
Taxed costs and interest upon a

judgment are part of the amount
recovered
47
How the fee is calculated
No deduction for liens,

assignments or claims in favor of
hospitals, for medical care and
treatment by doctors and nurses,
or self-insurers or insurance
carriers.
48
How the fee is calculated
Common liens
Medicare
Medicaid (and other public
entitlement)
Assignments of benefits
Union-mgt benefit funds (ERISA)
Workers compensation
49
NY CLS Jud 474-a Contingent fees in claims or

actions for medical, dental or podiatric malpractice
30 % of the first $ 250,000 of the sum

recovered;
25 % of the next $ 250,000 of the sum
recovered;
recovered;
recovered;
10 % of any amount over $ 1,250,000 of
the sum recovered.
50
NY CLS Jud 474-a Extraordinary Circumstances
Trial judge has discretion to fix as

reasonable compensation an
amount greater than 474-a
- in extraordinary circumstances
- without regard to the claimant's
consent
BUT not in excess of that provided
by contract between attorney &
client
Are such reductions in med mal
51
NY Rules of the Appellate Courts

691.20:
Retainer and Closing Statements
2nd Judicial Department
Written retainers, etc. reqd in:

personal injury
property damage
wrongful death
condemnation or change of grade
proceedings
52

691.20 Retainer and Closing Statements
(1) Every attorney who accepts a

retainer or enters into an agreement,
express or implied, for compensation
for services whereby his
compensation is to be contingent in
whole or in part upon successful
prosecution or settlement
Shall, within 30 days sign personally
and file with the Office of Court
Administration of the State of New
York a written statement of such
53
retainer or agreement.

(b) Closing statement; statement

where no recovery.
(1) A closing statement shall be filed in
connection with every claim in which
a retainer statement is required, as
follows: Every attorney upon receiving,
retaining or sharing any [such] sum
shall, within 15 days after such
receipt, retention or sharing, sign
personally and file with the Office of
Court Administration and serve upon
54
the client a closing statement

Retainer agreement, under which

attorney would receive [less than rules
permit] was not enforceable due to
failure to timely file. Connors v. Wildstein
(2 Dept. 2000)
Attorney was suspended from practice

of law for one year .. For failing to
prepare retainer statement for filing
with Office of Court Administration in
personal injury case and by failing to
55
prepare closing
statement Matter
of
N.J. Court Rules, R. 1:21-7 Contingent fees
(c) In any [tort claim for damages] but

excluding statutorily based
discrimination and employment claims,
and the client is not a subrogee, an
attorney shall not contract for, charge,
or collect a contingent fee in excess of
the following limits
56
(1) 33 1/3% on the first $ 500,000 recovered;
(2) 30% on the next $ 500,000 recovered;
(3) 25% on the next $ 500,000 recovered;
(4) 20% on the next $ 500,000 recovered; and
57
25% in case of minors and mentally

incapacitated persons if the case settles
without trial
includes services rendered on any

appeal or review proceeding or on any
retrial, but this shall not be deemed to
require an attorney to take an appeal
58
(f) If at the conclusion of a matter an

attorney considers the fee permitted by
paragraph (c) to be inadequate, an
application on written notice to the
client may be made to the Assignment
Judge for the hearing and determining
of a reasonable fee in light of all the
circumstances.
59
Federal Tort Claims Act

Statutory contingent fee
limits
60
28 U.S.C. 2678. Attorney fees; penalty
No attorney shall charge, demand,

receive, or collect for services
rendered, fees in excess of 25% of
any judgment or [settlement]
or in excess of 20% of any award,

compromise, or settlement (at
administrative adjustment stage]
[28 USC 2672]
61
28 U.S.C. 2678. Attorney fees; penalty
Any attorney who charges,

demands, receives, or collects for
services rendered in connection
with such claim any amount in
excess of that allowed under this
section, if recovery be had, shall
be fined not more than $ 2,000 or
imprisoned not more than one
year, or both.
62
What is a reasonable
fee?
Lodestar
Contingent fee enhancement
63
When fees are shifted
Lodestar
Risk enhancement
Fee shifting statutes
Ch. 3 fees and billing
64
OBannon v. NCAA
65
OBannon v. NCAA
Nice work if you can get it?
Attorneys fees
$46,856,319.46
Clayton Act recoverable costs

$5,555,739.07
The lodestar: $985 - $250/hour
66
Clayton Act fee shifting
15 U.S.C. 26 provides that [a]ny

person.. shall be entitled to sue for
injunctive relief against threatened
loss or damage by a violation of the
antitrust laws . . . . In any action
under this section in which the
plaintiff substantially prevails,
the court shall award the cost of
suit, including a reasonable
attorneys fee, to such plaintiff.
67
Plaintiffs counsels motion for fees

OBannon v. NCAA
Reasonable fees and costs span

every item of service which, at
the time rendered, would have
been undertaken by a
reasonable and prudent lawyer
to advance or protect his clients
interest . . . .
68
NCAA seeks steep cuts in plaintiffs counsel fees
69
NCAA objects to fees for
work prior to September 1, 2012

when Ps theory of the case changed
work done solely to advance claims
upon which Ps did not substantially
prevail
claims that were essentially
abandoned
unnecessary, redundant or inefficient
work
unsupported by plaintiffs billing
records or
70
NJ allows contingent fee

enhancement
Walker v. Guiffre, A-72-10, the Court

reinstates a $99,000 legal fee on the
plaintiff's $650 recovery in a suit
accusing Route 22 Nissan Inc. and
other car dealerships of fraudulently
inflating fees in sales contracts."
In Humphries v. Powder Mill
Shopping Plaza wheelchair access
claim
71

The "lodestar" is "the product of reasonable

hours times a reasonable rate"
District Court declared that Dague's "risk of not

prevailing was substantial" and that "absent an
opportunity for enhancement, [Dague] would
have faced substantial difficulty in obtaining
counsel of reasonable skill and competence in
this complicated field of law [Clean Water
Act]."
It concluded a 25% enhancement is
appropriate, but anything more would be a
Fees fall 2014 remedies
72
windfall to the Counsel
attorneys."

We see a number of reasons for

concluding that no contingency
enhancement whatever is
compatible with the fee-shifting
statutes at issue.
73

Just as the statutory language

limiting fees to prevailing parties
bars a prevailing plaintiff from
recovering fees relating to claims on
which he lost, so should it bar a
prevailing plaintiff from recovering
for the risk of loss.
74

To award a contingency
enhancement under a fee-shifting
statute would in effect pay for the
attorney's time (or anticipated time)
in cases where his client does not
prevail.
75

An attorney operating on a
contingency-fee basis pools the
risks presented by his various
cases: cases that turn out to be
successful pay for the time he
gambled on those that did not.
Gambling? Or entrepreneurial riskCounsel Fees fall 2014 remedies
76
Rendine v. Pantzer, 141 NJ 292 (2005)
We are unpersuaded by Justice

Scalia's suggestion in Dague,
supra, that awarding
contingency enhancement under
a fee-shifting statute "would in
effect pay for the attorney's time
(or anticipated time) in cases
where his client does not
prevail." ...
77
In our view the case for

contingency enhancement has
nothing to do with the amount of
time lawyers invest in losing
cases.
It rests on the desire to enable

parties to compete for legal
services in the private market.
78
A more practical approach is that

outlined in the Delaware Valley II
dissent. A court's job is to
determine
1) was the case was taken on a
contingent basis?
2) was the attorney able to
mitigate the risk of nonpayment in
any way?
3) were other economic risks were
aggravated by the contingency of
79
It is the actual risks or burdens

that are borne by the lawyer or
lawyers that determine whether
an upward adjustment is called
for.'
80
We conclude that contingency

enhancements in fee-shifting cases
ordinarily should range between 5%
and 50% of the lodestar fee,
the enhancement in typical
contingency cases should range
between 20% and 35 % of the
lodestar.
81
Enhancements should never exceed

100%of the lodestar
Enhancement of that size will be
appropriate only in the rare and
exceptional case in which
- the risk of nonpayment has not been
mitigated at all,
i.e., where the "legal" risk constitutes
"an economic disincentive independent
of that created by the basic contingency
in payment *
[AND] the result achieved * * * is
Counselof
Fees fall
2014 remedies
significant and
broad
public82 interest.
Aggregate Litigation
Managing the conflicts among
claimants and lawyers
83
Deepwater Horizon an outlier
Any common benefit Class

Counsel fees and costs awarded
by the Court will not be
deducted from Class Members
recoveries, but will be paid by
BP in addition to other class
benefits.
84
Deepwater Horizon an outlier
BP has agreed to pay for the cost

of notice to class members and
the costs of the Settlement
Program administration.
BP has agreed to create a $57
million fund, to be administered
by the Claims Administrator, to
promote tourism and the
seafood industry in the Gulf
Coast.
85
BP Deepwater Horizon PSC Report

Filed 11/07/11
6% reserve for common

benefit work established
86
Principal types of aggregate claims

Class actions (FRCP 23)
- fairness hearings
Single action with multiple

claimants
Quasi class actions/Consolidated

case management
- state mass tort case

management
87
R. 1.8 (g) Conflicts Aggregate

Litigation
A lawyer who represents two or

more clients shall not participate
in making an aggregate
settlement of the claims of or
against the clients, or in a
criminal case an aggregated
agreement as to guilty or nolo
contendere pleas, unless:
88
Aggregate Litigation:
Class Actions
Fees drawn from a common
fund
89
Florin v. Nationsbank of Ga., N.A. p. 180

(7th Cir. 1995) Class actions
attorneys' fees from a "common

fund
judge-made exception to the

"American Rule
Judicial discretion -
lodestar method
percentage of recovery method
or some combination of the two

90

Counsel for the class sought
Lodestar $ 1,863,838.75
Enhanced by risk multiplier (1.53)
= $ 2.85 million or 18.45 % of the fund
District court on remand.... allowed the

smallest possible multiplier of 1.01
91

We review the district court's award

of attorneys' fees deferentially
plaintiff class is unrepresented in
the issue of attorneys' fees
court must jealously guard the
interests of the class.
court must also be careful to sustain
the incentive for attorneys on an
"inescapably contingent" basis
92

The risk multiplier is an effort to

mimic market forces.
The district court in essence

found that the attorneys for the
class faced no risk in taking on the
case, that in the end, they were
assured of a paycheck. We
93

the benchmark in common fund

cases is 20 % - 30 %
Usual range 13 % - 20 % for
funds of $ 51-$ 75 million
6-10 % range for funds of $ 75-$
200 million
the multiplier of 1.53 leads to
attorneys' fees of $ 2.85 million about 18.5 % of the settlement
fund
94

the benchmark in common fund

cases is 20 % - 30 %
Usual range 13 % - 20 % for
funds of $ 51-$ 75 million
6-10 % range for funds of $ 75-$
200 million
the multiplier of 1.53 leads to
attorneys' fees of $ 2.85 million about 18.5 % of the settlement
fund
95
Aggregate Tort Litigation

Private agreement or judicial
control?
96
WTC Ground Zero cases
Judge Hellerstein refused to mark

cases settled when the lawyers for
City, contractors and plaintiffs
presented their agreement.
He ordered them to continue to trial,
etc.
He said that not enough money was
going to plaintiffs and too much was
going to lawyers.
Its a quasi class action, he said
97
What should the lawyers do if they

think he is overreaching?
Did the Judge have the right to

approve or disapprove a private
settlement?
Almost all the money is federal funds

(WTC Captive) - does that make a
difference?
98
Plaintiffs lawyers: $30 Million in costs

for 8 years, plus tens of millions for
staff, etc.
Defense took 1,200 deps, spent $200

M
Clients signed standard NY retainer

agreements providing 33 1/3%
contingency
* did Judge Hellerstein have the right
99
R. 1.8 (g) Conflicts Aggregate Litigation

each client gives informed
consent, in a writing signed by
the client.
The lawyer's disclosure shall
include
the existence and nature of all
the claims or pleas involved and
the participation of each person
in the settlement
Does the WTC settlement honor
these principles?
100
Quaere
* are the plaintiffs adequately

informed of the terms of the
aggregate settlement under RPC 1.8
(g)?
* do the opt outs have a realistic

chance?
* will 95% take the settlement?

101
Apportioning fees among

lawyers in MDL litigation
Individually retained lawyers
Lead counsel
State vs. Federal litigation on

parallel tracks
102
Zyprexa
Judge Jack B. Weinstein

467 F. Supp. 2d 256 (EDNY 2006)
103
Federalism: the state court problem
State-Federal Comity
Conflicts of interest due to differing
fee structures
Equity
Litigation misconduct
- state court filings to evade MDL fee
limits and common benefit
assessments
- filings of non-meritorious new
claims
104
Common benefit work by Plaitniffs

Steering committee 1
Discovery
Bellwether trials
Settlement negotiations
8000 cases settled
Claims processing and payment
procedures and implementation
Resolving Medicare and Medicaid
liens (agreement approved by all
states and federal government)
105
Attorneys fee structure
Capping fees
20% of recovery in smaller, lumpsum claims
35% of recovery in all other claims
1% hold-back from the gross
settlement , plus interest on the
escrow fund for Plaintiff Steering
Committee I (PSC 1)
PSC II not set
106
Common benefit fund purpose
Reimburse members of PSC I and

other attorneys for the time and
funds expended by them for the
common benefit of all settling
plaintiffs in
conduct of the litigation
implementation of the
settlement
107
FRCP Rule 11
Provides for sanctions for litigation

misconduct
- costs to adverse party including
attorneys fees
108
Sanctions under New York Law
109
AWARDS OF COSTS AND IMPOSITION OF FINANCIAL

SANCTIONS FOR FRIVOLOUS CONDUCT IN CIVIL
LITIGATION - 22 NYCRR 130-1.1
Costs and reasonable attorneys

fees may be awarded TO a party
injured by frivolous litigation
conduct of
Attorneys
Parties
110

Conduct is frivolous if:

(1) completely without merit in law
and cannot be supported by a
reasonable argument for an
extension, modification or reversal
of existing law;
(2) it is undertaken primarily to
delay or prolong the resolution of
the litigation, or to harass or
111

(3) it asserts material factual

statements that are false.
Frivolous conduct shall include the
making of a frivolous motion for
costs or sanctions under this
section.
112
FRCP 11
(4) Nature of a Sanction.

A sanction imposed under this
rule must be limited to what
suffices to deter repetition of the
conduct or comparable conduct
by others similarly situated.
113
FRCP 11
The sanction may include

nonmonetary directives
an order to pay a penalty into
court
an order directing payment to
the movant of part or all of the
reasonable attorney's fees and
other expenses directly resulting
from the violation.
114
Rule 11 FRCP - sanctions
As to Any paper a lawyer signs or

advocates for the attorney certifies
factual contentions have (or will
have) evidentiary support
denials of factual contentions are
warranted on the evidence or are
reasonably based on belief or a lack
of information
115
28 USC 1927. Counsels liability for

excessive costs
Any attorney ..who so multiplies

the proceedings in any case
unreasonably and vexatiously
may be required by the court to
satisfy personally the excess
costs, expenses, and attorneys
fees reasonably incurred
because of such conduct.
116

Counsel Fees As A Remedy

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Counsel Fees As A Remedy

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Counsel Fees - Remedies Spring 2015

Counsel Fees fall 2014 remedies

How lawyers fees are set

Free market pricing

Court decisions in fee-shifting

The American Rule

When does the loser pay?

Counsel fees as an item of

Breach of fiduciary duty

Legal malpractice loser pays

- e.g. egregious conduct

- breach of fiduciary duty

Counsel Fees fall 2014 remedies

N.J. Rule 4;42

(2) Out of a fund in court.

(3) In a probate action, if

(4) In an action for the

(5) In an action to foreclose a tax

N.J. Rule 4;42

Counsel Fees fall 2014 remedies

Fees, costs, taxed costs,

Expert witnesses, discovery

as part of the costs

Counsel Fees fall 2014 remedies

Fee shifting statutes standards vary

* ERISA 29 USC 1132: - by

some degree of success on the

But in a collection action

EAJA 28 U.S.C. 2412

Under the Equal Access to Justice

Cap: $125 + COLA

Counsel Fees fall 2014 remedies

Most commonly used fee shifting

Title VII in its discretion..to

State Laws against

Buckhannon Legislative history

Counsel Fees fall 2014 remedies

Buckhannon v. WVA (2001)

Catalyst theory rejected

Until today parties who obtained

Counsel Fees fall 2014 remedies

Buckhannon Scalia concurring)

there is all the differnce in the

Counsel Fees fall 2014 remedies

Patent cases - 35 U.S.C. 285

Patent infringement fee shifting is:

- intentional infringement cases

- the patent troll problem

Copyright cases 17 USC 505

In any civil action under this title, the

FRCP 23 common fund

(h)ATTORNEY'S FEES AND

In a certified class action, the

FRCP 54 Judgment (d) Costs; Attorneys

(2) Attorney's Fees.

Counsel Fees fall 2014 remedies

FRCP 54 (2)(B) Motion for Attorneys Fees

(ii) specify the judgment and the

R. P. C. 1.5 - A Reasonable Fee

(a) A lawyer shall not make an

Counsel Fees fall 2014 remedies

1) the time and labor required,

(4) the amount involved and the