We previously wrote here about the ability of a winning party to also recover its attorney’s fees. This post addresses the common core doctrine and its effect on such a recovery.
Why is the common core doctrine important?
In a lawsuit, a plaintiff will often have asserted multiple claims or sued multiple defendants.
Sometimes, a party wins the case on some (but not all) claims. Similarly, a plaintiff may win the case against some (but not all) defendants.
When an award of attorney’s fees is requested, the losing defendant(s) will point to the fact that the plaintiff’s attorney spent time on unsuccessful claims and/or failed to win against all defendants.
That is where the common core doctrine comes into play.
Where does the doctrine come from?
In Hensley v. Eckerhart, 461 U.S. 424 (1983), the plaintiffs succeeded on some, but not all, of their civil rights claims.
When the plaintiffs requested an award of attorney’s fees, the defendants objected on the grounds that some of the plaintiffs’ claims failed.
Specifically, the defendants wanted the lower court to (i) take the total number of claims asserted, (ii) divide the total fees by that number, and (iii) then multiply the quotient by the number of successful claims.
By way example only, assume the plaintiffs asserted three claims but only prevailed on one of them. Further assume that the total legal fees were $90,000.
Under the Hensley defendants’ approach, the court would divide $90,000 by three, resulting in a quotient of $30,000. Then, the court would multiply $30,000 by 1 (the number of successful claims) and only award $30,000 of fees.
The district court rejected this approach. In doing so, the court explained: “Under this method no consideration is given for the relative importance of various issues, the interrelation of the issues, the difficulty in identifying issues, or the extent to which a party may prevail on various issues.”
On appeal, the Eighth Circuit agreed and affirmed the district court’s decision.
The defendants then appealed to the United States Supreme Court.
The Supreme Court’s ruling.
The Supreme Court began by examining case law where the plaintiffs had essentially achieved complete success, although having lost on some minor issues.
Those cases supported the notion that all of the attorney’s fees were recoverable.
The Supreme Court noted, however, that those cases were not particularly helpful in awarding fees where the plaintiff had more limited success.
The Court explained: “In some cases a plaintiff may present in one lawsuit distinctly different claims for relief that are based on different facts and legal theories.”
“In such a suit, even where the claims are brought against the same defendants – – often an institution and its officers, as in this case – – counsel’s work on one claim will be unrelated to his work on another claim. Accordingly, work on an unsuccessful claim cannot be deemed to have been expended in pursuit of the ultimate result achieved.”
But, the Court continued, “in other cases the plaintiff’s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel’s time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis.”
“Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.”
In summary: “Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified.”
“In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.”
“Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.”
Building upon the Supreme Court’s ruling, courts now generally refer to claims that are “inextricably intertwined and involve a common core of facts or are based on related legal theories.”
There is no single test for applying this rule. But, some examples include:
– McCown v. City of Fontana, 550 F.3d 918, 923 (9th Cir. 2008): Although plaintiff’s claims were brought on the basis of different legal theories against different defendants, they all arose from a common core of facts, namely, his arrest on June 2, 2004. Therefore, the district court did not abuse its discretion when it treated all the claims, successful and unsuccessful, as arising out of a common core of facts.
– Coutin v. Young Rubicam Puerto Rico, Inc., 124 F.3d 331, 342 (1st Cir. 1997): “A plaintiff should receive significant fees when he has won a partial victory on a civil rights claim while receiving substantially the relief he there sought, though the jury awards it on a factually or legally related pendent state claim.”
– Brodziak v. Runyon, 145 F.3d 194, 197 (4th Cir. 1998): Here, the magistrate judge awarded only 40 percent of the requested fees and costs based on a determination that Brodziak prevailed on only 40 percent of his claims. This reasoning contravenes the principle set forth in Hensley that awards of fees and costs should not be based simply on the ratio of claims raised to claims prevailed upon.
– Love v. Associated Newspapers, Ltd., 611 F.3d 601, 614 (9th Cir. 2010) [applying the doctrine to an attorney’s fees provision in a contract].
Often, when drafting a Complaint, a plaintiff’s attorney will include as many claims as she can think of, fully expecting many of them to fall by the wayside.
That is not an unreasonable approach.
But, in a case where a prevailing plaintiff may also recover attorney’s fees, additional thought should be given before including weaker claims in the Complaint. Such would only give defense counsel a basis for arguing that the plaintiff did not substantially prevail in the lawsuit.
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