Fifth Circuit Decision Demonstrates A Smart Move By Class Counsel And How District Judges Will Reduce Lodestar Requests For Clerical Work, Partial Success, And Work On Unsuccessful Motions.
In Doe v. Fitch, No. 22-60481 (5th Cir. Apr. 11, 2023) (per curiam; unpublished), the Fifth Circuit Court of Appeals was reviewing a district court’s award of attorney’s fees to class counsel under the federal civil rights statute, 42 U.S.C. § 1988, after the parties settled a class action requiring Mississippi to remove 28 individuals from its sex offender registry. (Although Mississippi’s sodomy law was declared unconstitutional in 2003, the state continues to the enforce the statute through its sex offender registry laws.) The district judge reduced plaintiffs’ lodestar request by 15%, awarding more than $400,000 to plaintiffs after their counsel smartly made a 10% voluntary reduction in fees. (The Fifth Circuit opinion does not state the amount of the fee award, but it was reported in a July 28, 2023 post on “Mississippi Today.”)
The Fifth Circuit sustained the fee award under the deferential abuse of discretion standard. The 15% across-the-board reduction was justified due to clerical work by class counsel, plaintiffs’ failure to invalidate the sex registry statute, partial success (not prevailing on an unsuccessful due process claim), and work on an unsuccessful summary judgment motion. However, the district court also was correct to not make further reductions for other work on the due process/equal protection claims because they were intertwined and for using out-of-state counsel.
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