A test of a $10 million attorneys’ fee
on Apr 6, 2009 at 12:38 pm
The Supreme Court agreed on Monday to define when a team of lawyers does such a superb job in a difficult case that it should get a sizeable markup beyond the basic amount of fees earned.  The case, in fact, may test whether such a multiplier is ever allowed. The outcome could affect the award of fee enhancements under more than 100 federal laws that allow the winners in a wide array of civil cases to recover their lawyers’ fees.
At issue is a $10,522,405.08 fee recovery that a federal judge in Georgia awarded to attorneys who won a sweeping challenge to abuse and neglect of children in state-supervised foster homes. The case is Perdue (govenor of Georgia) v. Kenny A., et al. (08-970). It will be argued in the next Term starting in October.
The judge, citing his 27 years on the federal bench, said the childrens’ lawyers “brought a higher degree of skill, commitment, dedication and professionalism to this litigation than the Court has seen displayed by the attorneys in any other case.”  The judge found a basic (“lodestar”) fee of $6,012,802.90, and then tacked on a 1.75 upward adjustment. The Eleventh Circuit Court upheld the fee.
The state of Georgia, taking the case on to the Supreme Court, argued that the results that lawyers get in a case, and the quality of the work that they do on the case, are factors that should figure only in calculating the basic, or “lodestar,” fee award. It is double counting, the petition argued, to take results and performance into account again by adding a multiplier.
The Court granted review of this question: “Can a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on qualify of performance and results obtained when these factors already are included in the lodestar calculation?” (The Court denied review of a second question, testing whether enhancement could ever be allowed after a judge had reduced the lodestar claim for seeking payment for too many hours of work.)
The case, involving some 3,000 foster children in Georgia’s two largest counties, Fulton and DeKalb, began in June 2002 and concluded with a consent decree more than three years later. In the deal, the state agreed to take 31 separate steps to improve the lot of foster children, including such commitments as prompt investigation of reports of abuse or neglect, regular visits by caseworkers, licensing of foster homes, limits of each home’s capacity, and prompt delivery of medical and dental care.
The two sides, however, did not agree on attorneys’ fees for the children’s lawyers, as prevailing in the case. The team of lawyers for the children sought a lodestar award of more than $7.1 million, plus an enhancement that would double the award to more than $14.3 million.  The state contended that the team had sought payment for too many hours; the judge agreed, and reduced the lodestar by an across-the-board reduction of hours — thus lopping off some $1 million in fees, resulting in the lodestar amount of $6.1 million.
This was the only case the Court granted for review on Monday.
Among a series of orders denying review, the Court turned aside two cases seeking clarification of the role the jury is to be in the sentencing phase of death penalty cases. Specifically at issue in McLaughlin v. Missouri (08-822) and Anderson v. Louisiana (08-948) is how the Court’s 2000 decision in Apprendi v. New Jersey and sequels apply when a jury is asked to impose death, rather than life, as a sentence. As usual, the Court gave no reason for refusing to hear those cases in the face of a claimed conflict among lower courts on the issue.
