Part I: Fee Entitlement.
In 2005, Alan Hirsch and Diane Sheehey issued the second edition of “Awarding Attorneys’ Fees and Managing Fee Litigation” through the Federal Judicial Center.
Here, we provide you will their analytical outline of determining whether a fee award is in order under federal fee shifting statutes:
* Was a timely fee request made?
* Is there a prevailing party?
* Is there standing to bring a claim for fees?
* Is there a liable party?
* Are there special circumstances militating against an award?
[On this one, they note that, with “one noted exception,” most federal appellate courts have rejected “special circumstance” factors raised by the defense to defeat a fee award, such factors as: defendant’s willingness to enter into an early settlement; the lawsuit’s conferring a private benefit on the plaintiff but no larger public benefit; the plaintiffs’ ability to pass their litigation costs on to consumers; the plaintiff’s proceeding in forma pauperis while benefiting from court-appointed counsel; the failure of a consent decree to mention fees; an award of injunctive relief only; a third party’s financing the plaintiffs’ suit; and the routine nature of the case. Okay, the “noted exception”? Farrar v. Hobby, 506 U.S. 103, 115 (1992) -- where the plaintiff had limited success by only being awarded nominal damages.
* Is there a fee waiver? [Waiver of fees as an express part of a settlement agreement or consent decree].
This is Part I. Part II will focus on Calculating the Amount of the Award--lodestar and procedural aspects of a fee petition. Stay with us, you will get Part II soon in an upcoming post.