Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 1 of 31 PageID: 2224
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`CAMDEN VICINAGE
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`SANTOS ANDUJAR,
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` Plaintiff,
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`v.
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`GENERAL NUTRITION CORPORATION,
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` Defendants.
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` Civil No. 14-7696 (JS)
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`MEMORANDUM OPINION AND ORDER
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`This matter is before the Court on plaintiff’s “Motion for
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`Attorney’s Fees, Costs, [Prejudgment Interest] and Negative Tax
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`Consequences” [Doc. No. 67]. Also before the Court is
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`defendant’s Motion to Strike the Amended Reply Affidavit of
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`Plaintiff’s Counsel” [Doc. No. 81]. The Court received the
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`parties’ extensive opposition and supplemental submissions [Doc.
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`Nos. 68, 75, 76, 78, 83, 84, 88, 89, 90, 92, 107 and 108] and
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`held oral argument. For the reasons to be discussed, plaintiff’s
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`motion is granted in part and denied in part and defendant’s
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`motion is denied. The Court grants a statutory attorney fee of
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`$127,215.00 (lodestar) plus an enhancement of 25% or $31,803.75,
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`for a total attorney fee award of $159,018.75. The Court also
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`awards costs in the amount of $1,823.80, prejudgment interest in
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`the amount of $1,207.64, and negative tax consequences in an
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`amount to be determined. The enforcement of this award is stayed
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`1
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` [Doc. Nos. 67, 81]
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`CAMDEN VICINAGE
`
`
`SANTOS ANDUJAR,
`
` Plaintiff,
`
`v.
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`
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`GENERAL NUTRITION CORPORATION,
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` Defendants.
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`
`
`
`
` Civil No. 14-7696 (JS)
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`
`
`MEMORANDUM OPINION AND ORDER
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`
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`This matter is before the Court on plaintiff’s “Motion for
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`Attorney’s Fees, Costs, [Prejudgment Interest] and Negative Tax
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`Consequences” [Doc. No. 67]. Also before the Court is
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`defendant’s Motion to Strike the Amended Reply Affidavit of
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`Plaintiff’s Counsel” [Doc. No. 81]. The Court received the
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`parties’ extensive opposition and supplemental submissions [Doc.
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`Nos. 68, 75, 76, 78, 83, 84, 88, 89, 90, 92, 107 and 108] and
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`held oral argument. For the reasons to be discussed, plaintiff’s
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`motion is granted in part and denied in part and defendant’s
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`motion is denied. The Court grants a statutory attorney fee of
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`$127,215.00 (lodestar) plus an enhancement of 25% or $31,803.75,
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`for a total attorney fee award of $159,018.75. The Court also
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`awards costs in the amount of $1,823.80, prejudgment interest in
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`the amount of $1,207.64, and negative tax consequences in an
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`amount to be determined. The enforcement of this award is stayed
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`1
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`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 2 of 31 PageID: 2225
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`at least until the Third Circuit rules on defendant’s pending
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`appeal.
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`Background
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`The parties are familiar with the background of this matter
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`so there is no need to set out a detailed summary. The Court
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`incorporates by reference the background set forth in its
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`February 28, 2018 Opinion denying defendant’s motion for a new
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`trial or in the alternative amending the judgment. 2018 WL
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`1087494 (D.N.J. Feb. 28, 2018). Briefly, plaintiff alleged he
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`was terminated from his job as the Manager of a General
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`Nutrition store on account of his age. On October 26, 2017, the
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`jury returned a verdict in plaintiff’s favor finding defendant
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`violated the New Jersey Law Against Discrimination (“NJLAD”).
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`Plaintiff was awarded $123,926 in back pay, $75,000 in emotional
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`distress damages and $60,000 in front pay damages, for a total
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`damage award of $258,926. Judgment in this amount was entered on
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`October 30, 2017. [Doc. No. 66]. On February 28, 2018,
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`defendant’s motion for a new trial or to amend the judgment was
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`denied. [Doc. Nos. 85, 86]. Defendant appealed the decision to
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`the Third Circuit where the appeal is pending.1
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`Plaintiff seeks an award of attorney’s fees, costs and
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`prejudgment interest. Plaintiff also seeks an award for the
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`1 Despite the fact the case is on appeal to the Third Circuit,
`the Court still has discretion to decide this motion. West v.
`Keve, 721 F.2d 91, 95 n. 5 (3d Cir. 1983).
`2
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`negative tax consequences resulting from the judgment. Plaintiff
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`requests a lodestar of $130,500 in fees, plus an enhancement of
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`50%. Plaintiff also requests $1,823.90 in costs, $2,481.42 in
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`prejudgment
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`interest
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`and
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`$69,443.00
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`for
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`negative
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`tax
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`consequences.
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`Defendant
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`asserts
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`various
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`objections
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`to
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`plaintiff’s requests which will be discussed herein.
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`For present purposes it is important to discuss how
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`plaintiff’s counsel proposes to compute his final fee.
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`Plaintiff’s retainer agreement provides he is to be paid a
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`contingency fee of 45% of the net recovery. At first plaintiff
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`contended he was entitled to the full amount of his Court
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`awarded fee plus his contingency fee. In other words, a dual fee
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`recovery.2 Plaintiff proposed to pay a 1/3 referral fee of his
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`45% net recovery to his referring attorney. In addition,
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`plaintiff proposed to pay a 1/3 referral fee of the Court’s fee
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`award to the referring attorney.3 Defendant did not object to
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`2 Based on the jury’s verdict, the computation of net recovery is
`$258,926.00 – $1,823.80 = $257,102.20. Counsel’s 45% share is
`$115,695.99. If the proposed lodestar ($130,500) is added to
`this amount, counsel’s fee totals $246,195.99. This total does
`not include counsel’s proposed enhancement. Under this proposal
`plaintiff would only receive $141,406.21.
`3 To the extent defense counsel argues counsel’s affidavits are
`inconsistent with representations made at oral argument, the
`Court accepts plaintiff’s representations made on the record.
`Further, to be frank, the record is not entirely clear as to the
`referral fee to be paid. At oral argument the Court first
`understood the fee would be 1/3 of counsel’s 45% contingency
`fee. See March 23, 2018 Oral Argument Transcript (“Tr.”) at 6:4-
`11. However, later on counsel indicated he pays a referral fee
`of 1/3 of 33%. Id. at 14:10 to 25:25. The Court reads the
`3
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`counsel’s proposed dual recovery but argued this should be taken
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`into account when determining whether a lodestar enhancement
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`should be awarded and the percentage.4
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`After the Court questioned counsel’s proposed dual recovery
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`and asked for supplemental briefs on the issue, counsel
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`transcript to mean in personal injury cases the referral fee is
`1/3 of 33%. Whether plaintiff’s referral fee is 1/3 of 33% or
`45% is immaterial to the Court’s decision.
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` 4
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` The Court disagrees with plaintiff’s counsel’s recent statement
`that “there is a fundamental misunderstanding” as to how
`plaintiff initially proposed to calculate his attorney fee. See
`July 5, 2018 Letter Brief (“LB”) at 1, Doc. No. 107. At oral
`argument the Court inquired how counsel intended to calculate
`his fee. Counsel unequivocally indicated he would receive 45% of
`the net jury award after costs were paid, plus 100% of the Court
`awarded fee.
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`THE COURT: … It’s correct that Mr. Andujar is not
`going to see a penny of whatever the Court awards in
`attorney’s fees, right?
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`MR. PESCATORE: True.
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`Tr. at 26: 12-14, Doc. No. 106; see also id. at 4:6-12:
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`THE COURT: [I]f you’ll indulge me, I’ll hear your
`argument, but I just had a couple of questions that I
`wanted to get clarified first.
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`Plaintiff, defendant I believe argues that under the
`retainer agreement you’re going to get paid 45 percent
`of the net recovery of the verdict, plus whatever
`award this Court grants for the successful outcome in
`the case.
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`Is that in fact correct?
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`MR. PESCATORE: It is correct under the agreement as
`it’s written.
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`4
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`submitted a new proposal to calculate his attorney fee. See
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`Plaintiff’s July 5, 2018 LB. Counsel now proposes that he is
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`entitled to 45% of the jury award plus 45% of the attorney fee
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`award. According to counsel, plaintiff will not only receive 55%
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`of the jury award, but also “fifty-five cents (55¢) on every
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`dollar awarded, including any award of attorney’s fees and
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`costs.” Id. at 1.5 Defendant opposes plaintiff’s new computation
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`as excessive. See July 17, 2018 LB, Doc. No. 108.
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`Discussion
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`The parties do not dispute that a party that prevails on a
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`NJLAD claim is entitled to a reasonable attorney’s fee award.
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`N.J.S.A. 10:5-27.1. There also is no dispute that plaintiff is a
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`prevailing party since plaintiff succeeded on a “significant
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`issue in litigation which achieve[d] some of the benefit the
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`parties sought in bringing suit.” P.N. v. Clementon Board of
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`Education, 442 F.3d 848, 855 (3d Cir. 2006)(citation and
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`quotation omitted). In addition, the parties do not dispute the
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`starting point in the attorney’s fee analysis is to determine
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`the lodestar amount. Lanni v. New Jersey, 259 F.3d 146, 149 (3d
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`Cir 2001). The lodestar is computed by multiplying the
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`reasonable hourly rate by the reasonable number of hours
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`expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
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`5 Under this proposal, 45% of the jury verdict ($116,516.70) plus
`45% of the proposed lodestar ($58,725.00) totals $175,241.70.
`Counsel proposes to add to this amount his 50% enhancement.
`5
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`lodestar is presumptively reasonable but may require subsequent
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`adjustment. United Automobile Workers Local 259 Social Security
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`Dept. v. Metro Auto Center, 501 F.3d 283, 290 (3d Cir. 2007).
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`1. Hourly Rate
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`Plaintiff asks for an hourly rate of $450. The Court finds
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`this rate is reasonable and appropriate in the case. A
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`reasonable hourly rate is calculated according to the prevailing
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`market rate in the community. S.D. v. Manville Bd. of Educ., 989
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`F. Supp. 649, 656 (D.N.J. 1998). “This burden is normally
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`addressed by submitting the affidavits of other attorneys in the
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`relevant legal community, attesting to the range of prevailing
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`rates charged by attorneys with similar skill and experience.”
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`Id. A court should assess the skill and experience of the
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`prevailing party’s attorneys and compare their rates to the
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`rates prevailing in the community for similar services by
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`lawyers of reasonably comparable skill, experience, and
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`reputation. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
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`1990). The party seeking to recover attorney’s fees has the
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`initial burden of “producing sufficient evidence of what
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`constitutes a reasonable market rate for the essential character
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`and complexity of the legal services rendered in order to make
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`out a prima facie case.” Lanni, 259 F.3d at 149.
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`Plaintiff’s
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`counsel’s
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`certification,
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`affidavits
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`and
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`representations reveal he is an experienced and skilled
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`6
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`employment law litigator. Richard M. Pescatore, Esquire, has
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`been admitted to the Bar for over 30 years and he has been a
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`Certified Trial Attorney since the mid-1990’s (Certification of
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`Counsel (“Cert.”) ¶4, Doc. No. 67-1). Counsel has handled
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`hundreds of employment law cases. Amended Affidavit (“Am. Aff.”)
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`¶6, Doc. No. 78. Further, counsel has submitted the affidavits
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`of three (3) experienced South Jersey employment law litigators
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`who attest to the fact $450 per hour is a reasonable hourly rate
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`in the South Jersey legal community for an attorney of Mr.
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`Pescatore’s skill and experience. See Exhibit B to Plaintiff’s
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`Motion, Doc. Nos. 67-5, 68.6 Based on plaintiff’s submissions,
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`the Court will award plaintiff’s counsel an hourly rate of
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`$450.00 per hour.
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`Defendant argues counsel’s hourly fee should be rejected
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`because counsel did not provide information concerning his
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`skill, experience, reputation and employment experience.
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`Defendant’s Opposition Brief (“Opp.”) at 6, Doc. No. 75. The
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`Court disagrees. As noted, plaintiff’s counsel’s certification
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`and affidavits attest to this information. Notably, defendant
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`does not otherwise challenge plaintiff’s $450.00 per hour fee.
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`Accordingly, the Court rules that plaintiff’s $450.00 per hour
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`fee for the work done on this case is reasonable and
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`appropriate.
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`6 The three attorneys are Michelle J. Douglas, Kevin Costello and
`Allan Richardson.
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`7
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`2. Reasonableness of Fees
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`The parties do not dispute plaintiff is entitled to a
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`reasonable attorney’s fee as a prevailing party in the case. As
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`noted, the lodestar provides the starting point for determining
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`a reasonable attorney's fee. Lanni, 259 F.3d at 149. The
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`lodestar is calculated by multiplying a reasonable hourly rate
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`by the number of hours the moving counsel reasonably billed for
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`the litigation. Id. A district court may discount any hours that
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`it deems unreasonable, including those considered to be
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`“excessive, redundant, or otherwise unnecessary[.]” See Hensley,
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`461 U.S. at 433. Although the Court has substantial discretion
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`to determine what constitutes a reasonable billing rate and
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`reasonable hours, once the lodestar is determined it represents
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`the presumptive reasonable fee. Lanni, 259 F.3d at 149.
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`After the lodestar amount is calculated a court has
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`discretion to adjust the fee up or down based on a number of
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`different factors. Id. at 151; Pub. Interest Research Group
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`of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).
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`These factors include, but are not limited to: (1) the time
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`and labor required; (2) the novelty and difficulty of the
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`questions; (3) the skill required to perform the legal
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`service properly; (4) the preclusion of employment by the
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`attorney due to acceptance of the case; (5) the customary
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`fee; (6) whether the fee is fixed or contingent; (7) time
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`8
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`limitations imposed by the client or the circumstances; (8)
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`the amount involved and the results obtained; (9) the
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`experience, reputation, and ability of the attorneys; (10)
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`the “undesirability” of the case; (11) the nature and length
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`of the professional relationship of the clients; and (12)
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`awards in similar cases. Hensley, 461 at 429-30 n.3.
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`A plaintiff’s fee petition must be specific enough to
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`allow the court to determine if the hours claimed are
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`unreasonable for the work performed. Washington v. Phila.
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`County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir.
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`1996). Nevertheless, exacting detail is not necessary:
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`“a fee petition should include some fairly definite
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`information as to the hours devoted to various general
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`activities, e.g., pretrial discovery, settlement negotiations….
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`However, it is not necessary to know the exact number of minutes
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`spent nor the precise activity to which each hour was devoted
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`nor the specific attainments of each attorney.” Id. at 1037-38
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`(citation and quotation omitted). The time to prepare and
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`present an application for fees is recoverable. Maldonado v.
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`Houstoun, 256 F.3d 181, 187 (3d Cir. 2001). The lodestar and
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`Hensley reduction analysis applies to the claimed fees to
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`prepare a fee petition. Id. at 188.
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`3. Lodestar Analysis
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`9
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`Plaintiff submitted two sets of time sheets documenting
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`his time. The first set is attached to plaintiff’s motion
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`(Doc. No. 67, Exhibit A) and includes time from 3/17/14 to
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`11/6/17. The total requested lodestar is $111,150.00. The
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`second set of time sheets is attached to plaintiff’s
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`supplemental affidavit (Doc. No. 88, Exhibit A) and includes
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`time from 11/8/17 to 3/13/18. The total requested lodestar is
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`$19,350.
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`Defendant challenges the reasonableness of plaintiff’s
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`fees in several general respects. Defendant’s arguments are
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`rejected. To the extent defendant argues this was a
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`straightforward simple case, the Court disagrees. Although
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`plaintiff and defense counsel have likely litigated more
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`complex cases, the case was not routine. Discovery was
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`contentious and the Court had to address and resolve
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`challenging discovery disputes. In addition, plaintiff
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`successfully opposed defendant’s motion for summary
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`judgment and participated in a three-day trial. To his
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`credit, plaintiff’s counsel (as did defense counsel)
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`zealously represented his client. Mr. Andujar deserved
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`nothing less. Plaintiff’s counsel would have been shirking
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`his professional responsibilities if he took “shortcuts.”
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`In support of his fee application Mr. Pescatore
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`submitted his detailed timesheets. After reviewing
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`counsel’s time entries in detail, the Court finds counsel’s
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`10
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`time was well spent, reasonable and appropriate. Counsel
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`will not be penalized because he runs a small office and
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`does not have the benefit of a large staff of young
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`attorneys. Under the circumstances, counsel’s “hands on”
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`approach to the litigation was reasonable, necessary and
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`appropriate.
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`Although not clear, defendant seems to argue the
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`sixteen (16) hours plaintiff’s counsel spent to prepare for
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`trial was excessive since counsel allegedly only presented
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`“minimal testimony and evidence.” Opp. at 8. This argument
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`is rejected. The Court finds 16 hours is a reasonable
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`expenditure of time given that plaintiff’s counsel not only
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`had to prepare his case, but he also had to prepare to
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`rebut defendant’s case. Defendant is fortunate plaintiff’s
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`counsel used his time wisely and only spent 16 hours to
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`prepare for trial.
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`Defendant argues the Court should disallow hours spent
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`on “purely clerical and administrative entry tasks[.]” Opp.
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`at 9. The Court agrees. However, defendant does not
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`support, other than by general arguments, his contention
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`counsel spent time on clerical and administrative tasks.
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`Defendant argues every time entry for .1 should be
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`disallowed. Tr. at 17:10-15. (“[W]e did not parse every
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`single record[.]”). In addition, defendant argues all time
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`entries for .5 hours or under “indicate[ ] a routine or
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`11
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`ministerial task.” Opp. at 9.7 Instead of considering
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`defendant’s general objections to plaintiff’s time entries,
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`the Court has individually reviewed defendant’s objections
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`and plaintiff’s time entries to determine if they are
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`appropriate. The Court will not issue a carte blanche
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`ruling that all time entries less than .5 should be
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`disallowed. Defendant identified its objections by striking
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`out what it deemed administrative work. See Opp., Exhibit
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`D.
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`Almost all of defendant’s objections are off base. It
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`is plain to the Court that not every time entry of .5 or
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`lower is objectionable. For example, it is appropriate to
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`compensate plaintiff for his initial phone call from his
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`referring
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`attorney
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`(3/17/14
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`-
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`.5),
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`receipt
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`of
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`correspondence from client (3/21/14 - .2) and preparing
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`letters to defendant (3/25/14 - .3, 4/16/14 - .3). Many of
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`counsel’s .1 and .2 time entries are for the receipt of
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`correspondence
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`and
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`communications
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`from
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`the
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`Court.
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`Plaintiff’s counsel should be compensated for this time.
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`This task is not appropriately done by clerical staff.
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`As to plaintiff’s request for fees through November 6,
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`2017, the Court has thoroughly reviewed defendant’s
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`7 Defendant argues these time entries total 112.3 hours and do
`not warrant payment at $450 per hour. Id. According to
`defendant, plaintiff’s counsel only spent 112.30 hours on
`substantive work. Id.
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`12
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`individual objections to plaintiff’s time entries of .5 or
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`less. The Court did not identify any time entries that are
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`objectionable. Plaintiff’s counsel’s “hands on” approach to
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`the case was appropriate. However, the Court will deduct
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`the 6.5 hours ($2,925.00) counsel estimated it would take
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`to prepare his application for fees. The actual time
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`counsel spent on counsel’s fee application is included in
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`the time sheets attached to counsel’s supplemental
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`affidavit.
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`Defendant argues the 12 hours counsel spent to oppose
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`defendant’s dispositive motion was excessive. Id. at 10.
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`The Court disagrees and rules that plaintiff’s counsel’s
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`time was well spent. Thus, the Court approves plaintiff’s
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`lodestar application for $108,225.00 ($111,150.00 -
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`$2,925.00) in fees through November 6, 2017.
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`In addition to the lodestar through November 6, 2017,
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`plaintiff also seeks a fee award for the time spent
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`addressing his fee motion and other work performed from
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`11/7/17 to 3/13/18. As already noted, the time spent to
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`prepare a fee petition is recoverable. So too is the time
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`plaintiff spent to oppose defendant’s post-trial motion.
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`These additional fees are set forth in Mr. Pescatore’s
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`supplemental affidavit. Counsel requests reimbursement for
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`an additional 43 hours or a total lodestar of $19,350. The
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`Court reviewed plaintiff’s time entries and finds that the
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`13
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`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 14 of 31 PageID: 2237
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`.2 time entries on 12/8/17 and 12/13/17 should not be
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`reimbursed
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`because
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`the
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`time
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`was
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`spent
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`on
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`the
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`administrative/clerical task of filing William Martini’s
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`affidavits. Thus, only 42.2 additional hours or $18,990.00
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`in additional fees is awarded.
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`For the foregoing reasons the Court finds that the
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`appropriate lodestar is $108,225.00 plus $18,990.00 or
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`$127,215.00. The Court also finds the lodestar is
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`reasonable and will not be increased or decreased based on
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`the Hensley, supra, factors.
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`4. Calculation of Plaintiff’s Attorney’s Fee
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`Under New Jersey law a lawyer’s fee must be
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`reasonable. Rule of Professional Conduct (“RPC”) 1.5(a);
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`see also A.W. by B.W. v. Mount Holly Twp. Bd. of Educ., 453
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`N.J. Super. 110, 121 (App. Div. 2018)(even when a plaintiff
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`applies for fee shifting the fee award must be reasonable).
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`Further, in the first instance counsel’s fee or retainer
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`agreement must be examined to determine how his fee should
`
`be calculated. Starkey v. Estate of Nicolaysen, 340 N.J.
`
`Super. 104, 119-20 (App. Div. 2001), aff’d as modified 172
`
`N.J. 60 (2002)(the purpose of a written fee agreement “is
`
`to memorialize the agreement as to quantum of the fee”).
`
`Here, plaintiff initially proposed that he receive his 45%
`
`contingency fee or $115,695.99, plus his Court-awarded
`
`lodestar of $127,215.00. These two amounts total
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`
`
`14
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`
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`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 15 of 31 PageID: 2238
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`$242,910.99.8 Under plaintiff’s new calculation plaintiff
`
`proposes he receive 45% of the total of the judgment plus
`
`the Court awarded fee. These two amounts total $386,141
`
`($258,926 plus $127,215). Counsel’s 45% share of this total
`
`is $173,763.45.9 If the proposed 50% enhancement of the
`
`Court awarded fee is added to this amount, counsel would
`
`receive approximately $237,000.00 in fees. Under counsel’s
`
`new proposal, the net amount payable to plaintiff,
`
`exclusive of interest and negative tax consequences, is
`
`only approximately $210,000.10
`
`
`
`The Court rejects counsel’s proposed fee calculation as
`
`inconsistent with plaintiff’s written fee agreement and the
`
`applicable case law. Plaintiff’s fee agreement states as
`
`follows:
`
`Net recovery is the total recovered on your behalf,
`exclusive of attorney fees, minus costs and
`expenses…. The fee will be as follows: 45% attorney
`fees, computed upon net recovery or $450.00 hourly
`rate which ever is greater. Law firm shall be
`entitled to, as an additional fee notwithstanding
`the above, any increase in fees or enhancements
`allowed by the court.
`
`
`
`Doc. No. 67-8. The agreement states plaintiff is entitled to
`
`45% of the net recovery or the $450.00 hourly rate,
`
`whichever is higher. The net recovery is the total recovered
`
`
`8 This total does not include plaintiff’s proposed enhancement.
`9 As noted, counsel asks for a 50% enhancement of the Court
`awarded fees or the sum of $63,607.50.
`10 The total does not include an amount for interest and negative
`tax consequences.
`
`
`
`15
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`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 16 of 31 PageID: 2239
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`on behalf of plaintiff, minus costs. The amount recovered on
`
`plaintiff’s behalf is the jury verdict, not the jury verdict
`
`plus the Court awarded fees. The agreement, therefore,
`
`provides that counsel’s attorney fee is the higher of the
`
`45% contingency fee on the net jury verdict, or the Court
`
`awarded fee.11
`
`
`
`The Court rejects the argument that when plaintiff’s
`
`fee agreement refers to the “total recovered on
`
`[plaintiff’s] behalf” it refers to the jury award plus the
`
`Court awarded fee and negative tax consequences. Counsel
`
`drafted the fee agreement. If this is what he intended it
`
`should have been specifically stated. Cohen v. Radio-
`
`Electronics Officers Union, Dist. 3, NMEBA, 146 N.J. 140,
`
`156 (1996)(any ambiguity in a fee agreement will be
`
`construed in favor of the client). Indeed, plaintiff’s fee
`
`agreement specifically provides that the net recovery is
`
`“exclusive of attorney’s fees.”
`
`
`11 A dual recovery is not necessarily prohibited. As noted in
`Szczepanski v. Newcomb Med. Ctr., Inc., 141 N.J. 346, 359
`(1995), “statutory-fee awards and fees payable under
`contingent fee agreements are distinct and independent
`concepts”; accord Venegas v. Mitchell, 495 U.S. 82 (1990).
`Further, in U.S. v. Cooper Health System, 940 F. Supp. 2d
`208, 214 (D.N.J. 2013), the Court held that a plaintiff in a
`False Claims Act case could receive statutory and contingency
`fees. The Court wrote: “no New Jersey law or ethical rule
`prohibits a fee structure wherein an attorney receives both a
`contingency fee and statutory fee.” Id. at 222.
`
`
`
`
`16
`
`
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`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 17 of 31 PageID: 2240
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`Further, counsel has not cited a single instance where
`
`a contingent fee included a percentage of the Court awarded
`
`fees.12 On the other hand, defendant has cited persuasive
`
`case law to the contrary. See Sullivan v. Crown Paper Bd.
`
`Co., Inc., 719 F.2d 667, 669-70 (3d Cir. 1983)(holding
`
`attorney entitled only to “recovery of the contingency fee
`
`amount or the statutory fee, whichever is greater”).
`
`“[A]bsent an explicit agreement to the contrary, statutory
`
`fees are not considered part of the total recovery for
`
`purposes of determining the contingency fee, and counsel is
`
`generally entitled to the greater of the two.” Albunio v.
`
`City of New York, 11 N.E. 3d 1104 (N.Y. 2014); see also Lowe
`
`v. Pate Stevedoring Co., 595 F.2d 256, 257 (5th Cir.
`
`1979)(holding that counsel’s fee was limited to the
`
`statutory award because the fee agreement did not
`
`specifically provide for the recovery of a “fee on a fee”);
`
`“Unless otherwise agreed to … fee awards are deducted from,
`
`rather than added to, the sum divided in the determination
`
`of the contingency fee.” Bates v. Kugenko, 100 F.3d 961 (9th
`
`Cir. 1996). This is to “prevent windfall recoveries by the
`
`
`12 But see Zarcone v. Perry, 581 F.2d 1039 (2d Cir. 1978), cert.
`den. 439 U.S. 1072 (1979). This decision is inapposite because
`the case involved a civil rights claim, “of broad significance,
`prosecuted on behalf of a large class, and the prospective
`monetary award, if the suit was successful, would be modest in
`relation to the time, effort and skill required of counsel.”
`Sullivan, supra, 719 F.3d at 670 (quoting Zarcone, 581 F.2d at
`1044)(internal quotation marks omitted).
`17
`
`
`
`
`
`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 18 of 31 PageID: 2241
`
`attorneys of civil rights plaintiffs.” Id. (citation and
`
`quotation omitted).
`
`The cited cases stand for the proposition, adopted by
`
`this Court, that unless a fee agreement specifically refers
`
`to a statutory fee award, counsel may receive either the
`
`agreed upon contingency fee based upon the jury award or the
`
`statutory award, whichever is greater. Counsel may not, as
`
`is requested here, receive a portion of both. Since the
`
`Court awarded fee is $127,215, and counsel’s 45% contingency
`
`fee of the net jury award is $115,695.99, counsel shall be
`
`paid the higher statutory amount.
`
`5. Enhancement
`
`In addition to the lodestar amount, plaintiff asks for an
`
`enhancement of 50% pursuant to Rendine v. Pantzer, 141 N.J. 292
`
`(1995). The Supreme Court in Rendine stated as follows:
`
`We hold that the trial court, after having carefully
`established the amount of the lodestar fee, should
`consider whether to increase that fee to reflect the
`risk of non(cid:173)payment in all cases in which the
`attorney's compensation entirely or substantially is
`contingent on a successful outcome ... we have
`concluded that a counsel fee awarded under a fee
`shifting statute cannot be "reasonable" unless the
`lodestar, calculated as if the attorney's compensation
`were guaranteed irrespective of the result, is adjusted
`to reflect the actual risk that the attorney will not
`receive payment if the suit does not succeed.
`
`Id. at 337-38. The Supreme Court also wrote:
`
`
`We conclude that contingency enhancements in fee
`shifting cases ordinarily should range between five
`and fifty percent of the lodestar fee, with the
`
`
`
`18
`
`
`
`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 19 of 31 PageID: 2242
`
`enhancement in typical contingency cases ranging
`between twenty and thirty-five percent of the
`lodestar.
`
`Id. at 343. Whether to grant a fee enhancement is committed to
`
`the sound discretion of the trial court. Gallo v. Salesian Soc.,
`
`Inc., 290 N.J. Super 616, 657-60 (App. Div. 1996).
`
`
`
`When determining and calculating a fee enhancement, the
`
`court should consider the result achieved, the risks involved,
`
`and the relative likelihood of success in the undertaking. Furst
`
`v. Einstein Moomjy, 182 N.J. 1, 23 (2004). A fee enhancement is
`
`not necessarily automatic in every case and may be denied to a
`
`successful litigant. See Gallo, 290 N.J. Super. at 660 (“Nowhere
`
`does [Rendine] say that a fee enhancement multiplier must be
`
`awarded in every case.”).
`
`
`
`Plaintiff asks for an enhancement of 50%. At most defendant
`
`proposes an enhancement of 5%. The Court decides a mid-range
`
`enhancement of 25% or $31,803.75 on the $127,215 lodestar is
`
`appropriate. Counsel deserves an enhancement because he achieved
`
`an excellent result and he undertook to represent plaintiff in
`
`this civil rights case without an assurance that he would be
`
`paid.13 Further, the Court considers an enhancement necessary in
`
`order to incentivize competent counsel to represent plaintiffs
`
`such as Andujar who do not present unduly large damage claims.
`
`
`13 The Court disagrees with defendant’s argument that counsel’s
`“Fee Agreement explicitly guaranteed counsel payment[.]” July
`17, 2018 LB at 12. If plaintiff did not succeed at trial or
`settle the case, plaintiff would not be paid any fee.
`19
`
`
`
`
`
`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 20 of 31 PageID: 2243
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`Without the prospect of a potential high fee, the Court is
`
`concerned that hourly or relatively low salaried workers may not
`
`obtain the skilled representation they deserve. Competent
`
`counsel should not only represent those with largesse. See
`
`Norman v. Haddon Township, C.A. No. 14-6034 (NLH/JS), 2018 WL
`
`3536752, at *4 (D.N.J. July 23, 2018). While the Court believes
`
`plaintiff is entitled to an enhancement, it need not be
`
`excessive. This was not an unduly complex case. Nor did counsel
`
`spend an inordinate amount of time on the case. It is unlikely
`
`plaintiff’s counsel had to forego potentially lucrative work on
`
`account of his handling of this case.
`
`Counsel makes much of the fact he will pay a referral fee
`
`in the case. To be blunt, this is irrelevant to the Court’s
`
`decision. Plaintiff’s referral fee is a cost counsel
`
`voluntarily incurred and need not be compensated by defendant.
`
`Counsel’s referral fee is a “cost of doing business” and does
`
`not factor into the reasonable fee defendant has to pay. The
`
`net fee payable to plaintiff’s counsel is not what is at issue
`
`when the Court calculates counsel’s statutory fee award. What
`
`is paramount is whether the total Court award is reasonable.
`
`The amount of the statutory fee award should not be dependent
`
`on how plaintiff allocates his fee. It is axiomatic that a
`
`Court awarded fee must be reasonable. North Bergen Rex
`
`Transport v. TLC, 158 N.J. 561, 570 (1999). The reasonableness
`
`
`
`20
`
`
`
`Case 1:14-cv-07696-JS Document 109 Filed 08/20/18 Page 21 of 31 PageID: 2244
`
`of an attorney fee award is measured by the factors in RPC
`
`1.5(a). Litton Industries, Inc. v. IMO Industries, Inc., 200
`
`N.J. 372, 386-87 (2009). The fact that counsel has to pay a
`
`referral fee is not a relevant factor under RPC 1.5(a).14
`
`
`
`
`
`6. Costs
`
`Under the NJLAD plaintiff is entitled to reimbursement of
`
`his reasonable costs for hi
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