Walker v. Giuffre, 209 N.J. 124 (2012). In Walker and Humphries v. Powder Mill Shopping Plaza, two different Appellate Division panels had each ruled that restrictive principles governing attorneys’ fee awards under federal fee-shifting statutes, as expressed in Perdue v. Kenny A., ___ U.S. ___, 130 S.Ct. 1662 (2010), were to be applied to fee awards under New Jersey’s fee-shifting statutes such as the Consumer Fraud Act (implicated in Walker, a putative class action) and the New Jersey Law Against Discrimination (implicated in Humphries). Plaintiffs in both cases sought and were granted review, and the Court consolidated the two cases. In a lengthy opinion that recapped the history of fee-shifting standards in New Jersey state court, Justice Hoens, writing for a unanimous Supreme Court, rejected Perdue and instead reaffirmed that Rendine v. Pantzer, 141 N.J. 292 (1995), furnishes the standards for awards under New Jersey fee-shifting statutes. I argued this case for the successful plaintiff in Walker.
Justice Hoens reviewed in detail the decisions in Rendine and Perdue, as well as the history of fee-shifting in both federal and New Jersey courts. That history is one in which our Supreme Court has gone its own way, adopting fee-shifting standards that are more liberal than those of the United States Supreme Court, in recognition of the need to attract competent counsel to take on risky public interest-oriented litigation.
Though the opinion is long and scholarly, and an excellent reference for the law of attorneys’ fees, the essence of the decision is this: “there are no decisions relied upon in Perdue that were not considered, and rejected, by this Court in Rendine. There is, in the end, nothing in this most recent pronouncement of the United States Supreme Court that causes us to vary from the approach we have previously adopted.” That was precisely the argument that plaintiff made. As a result, Justice Hoens “reiterate[d] that the considerations we identified in Rendine remain those that guide the analysis of fee-shifting provisions found in our statutes.”
In Walker, the Court remanded to the Law Division to reconsider other aspects of the fee award there. In Humphries, Justice Hoens reversed the decision below and granted the request of plaintiff’s counsel there for a 50% enhancement of his lodestar fee. That was a disability access case that “sought relief that was almost entirely equitable in nature.” Plaintiff did not seek damages, but requested only changes in the premises to make them accessible, which would benefit not only herself but others similarly situated. In those circumstances, “and compared to Rendine’s usual and ordinary range for a contingency enhancement [an “ordinary range” of 5-50% and a “typical range” of 20-35%], the requested fifty percent was eminently reasonable” and was awarded by the Court without the need for further proceedings.
The 50% enhancement approved in Humphries certainly is not a cap. That percentage falls within the “ordinary” range under Rendine. Rendine allowed up to a 100% enhancement, especially in cases where equitable relief is the primary remedy sought. As Justice Hoens noted in Walker, “the highest end of the permissible range for contingency enhancement is appropriate for cases in which the relief sought was primarily equitable in nature.” Thus, Humphries might have resulted in a larger enhancement had plaintiff sought one.
In damages cases too, the risks of the particular case and the other highly case-sensitive Rendine factors may, and should, properly call for an enhancement that is out of the “ordinary” range. The message of Walker is that our Supreme Court rightly continues to recognize the need to give attorneys adequate incentives to bring cases under statutes that the Legislature has chosen to implement with a fee-shifting provision. Courts at all levels must keep that need always in view, and must craft (and explain the reasons for) a fee award and an enhancement that helps achieve the goal of attracting competent counsel.
One interesting wrinkle is the applicability of Rendine to class actions. Rendine was not a class action. Thus, the Court there did not consider the additional layer of risk that attends a class action, namely, the risk that a class will not be certified or will be decertified if certification is granted. The Court discussed this issue in colloquy with me at the oral argument in Walker, but did not need to reach it in its opinion. There is certainly reason, in a proper case, for the Court to allow an enhancement of greater than 100%, the top end of the Rendine scale, in class actions, in recognition of the additional risks that class action cases pose.