Wednesday, April 21, 2010
The Supreme Court ruled today in Perdue v. Kenny that an attorney's fee may in exceptional circumstances be increased due to the attorney's superior performance. The case reaffirms the Court's prior rulings and validates an important component of equal access to justice for civil rights plaintiffs.
The case involved the mistreatment and abuse of children in Georgia's foster care system. The plaintiff-class of 3,000 children sought to revamp the system, which failed to provide essential medicines, failed to properly staff facilities, and failed to maintain facilities. These problems resulted in unnecessarily suffered permanent medical conditions, physical assaults, including rape, and even child prostitution, according to the record.
Plaintiffs sought injunctive and declaratory relief for violations of state and federal constitutional and statutory law and attorney's fees under 42 U.S.C. Sec. 1988. That provision authorizes attorney's fees for prevailing parties in federal civil rights actions and thereby helps ensure that civil rights plaintiffs (who often can't afford attorney's fees) can get an attorney to press their case.
After mediation, the parties entered into a consent decree, and plaintiffs' counsel submitted a request for more than $14 million in attorney's fees. The district court awarded lodestar fees of approximately $6 million, representing the attorney's hours worked times the prevailing hourly rate. The court then added a 75% premium onto the lodestar calculation for superior performance. The court justified the premium based upon counsel's significant advance of funds to cover case expenses, counsel's lack of pay for the work during the course of litigation, and counsel's inability to recover fees and expenses without winning the case. But most of all, the district court wrote that plaintiffs' attorneys exhibited "a higher degree of skill, commitment, dedication, and professionalism . . . than the Court has seen displayed by attorneys in any other case during its 27 years on the bench." The premium bumped the total fee award up to about $10.5 million.
The Supreme Court ruled that attorneys for civil rights plaintiffs may be awarded increases to the lodestar in extraordinary circumstances, but that the district court failed to adequately explain how it arrived at the increase in this case. (Justice Alito, for the 5-justice majority, asked, "Why, for example, did the court grant a 75% enhancement instead of the 100% increase that respondents sought? And why 75% rather than 50% or 25% or 10%?")
(Justice Breyer wrote in dissent (joined by Justices Stevens, Ginsburg, and Sotomayor) that the Court should have simply affirmed the district court's award, deferring to its judgment on the fees.)
The case is a limited victory for equal access advocates, as it reaffirms that civil rights attorneys may be awarded increases to the lodestar in exceptional circumstances for superior performance--that civil rights attorneys may be properly compensated for their work, and that poor civil rights plaintiffs, too, can access superior advocates who are appropriately well compensated.