New York Court reluctant to deviate from the lodestar method

Posted on May 4th, 2017 by Legal Fee Advisors

By Sarah Chin.

In the Eastern District Court of New York, a group of plaintiffs filed a motion for attorney fees of $829,885.00 in a wage discrimination action under the Equal Pay Act, the New York Equal Pay Act and Nassau County Government Act. Plaintiffs acknowledged that although the requested fees could be $214,208.35 if calculated under the lodestar method, such an amount was “inadequate” and the Court should instead apply “the percentage of the fund method” or alternatively, apply “an upward enhancement” to the lodestar method in calculating fees. The Court, however, disagreed with the Plaintiffs and applied the lodestar method, without a multiplier, awarding fees of only $145,246.44.

First, the Court discussed two appropriate methods in determining the reasonableness of a fee – (1) the lodestar method (and any applicable multiplier), and (2) the percentage of fund method, also known as the common fund method. The defendants contended that the percentage of fund method is not applicable here because the case is a non-class action suit. The Court noted that in the 2nd Circuit, the “trend” toward the use of the percentage of fund method stems from the courts’ discretion to choose the methods in assessing attorney’s fees in a class action suit or where a common fund exists. The Court concluded that the district court has discretion to depart from the lodestar method in non-class action cases so long as “special circumstances” exist. The Court held that special circumstances exist in non-class action cases if “the settlement agreement creates a fund of a set amount, releases defendants from further liability, or statutory fees are no longer available.” No special circumstances were found to exist in this case with the Court concluding that the lodestar method was the appropriate method to use.

Second, the Court discussed whether the lodestar multiplier initially requested by the plaintiff should be applied to the lodestar. In balancing certain factors such as counsel’s time and labor, the litigation’s magnitude and complexity, and the risk of the litigation, the Court concluded that a lodestar multiplier was not warranted in this case as “there was nothing exceptional about the legal work”.

In reviewing the invoices for reasonableness using a basic lodestar method, the Court found that counsel’s substantial use of block billing rendered it difficult to determine the reasonableness of each entry. The Court applied a 15% across-the-board reduction to the “the number of hours reasonably expended” in the case for the use of block billing. Further, the Court noted that courts in this Circuit regularly reduced attorney’s fees by 50% for travel time and thus, reduced plaintiff’s travel time by same. Accordingly, the Court awarded plaintiffs $145,246.44 in fees and $3,385.85 in costs.

As discussed above, the District Courts in New York have the discretion to depart from the lodestar method under certain circumstances. Unless the case presents as significantly complex or a high-risk endeavor for counsel, the court will be less likely to deviate from the lodestar method. This is an important factor for attorneys to keep in mind when considering the appropriate method of calculating a fee petition, inasmuch as the use of an inappropriate method that yields a higher award than the lodestar method will be greatly scrutinized.


Volpe v. Nassau Cty., No. 12CV2416JFBAKT, 2016 WL 6238525 (E.D.N.Y. Oct. 24, 2016)


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