Attorney’s fees are an often overlooked, but significant part of any suit brought under the Americans with Disabilities Act (ADA). Under the Civil Rights Attorney’s Fees Awards Act of 1976, the “prevailing party” in any action brought pursuant to the ADA is entitled to a reasonable attorney’s fee award, including litigation expenses and costs. Interestingly, under the Act, a “prevailing party” does not have to prevail at trial or through dispositive motion practice. A favorable settlement for a plaintiff also makes the plaintiff a “prevailing party” under the Act, regardless of the value of the settlement.

 

In the recent case of Lasky v. Moorestown Township, D.N.J., Civ. A. 09-05624, (Mar. 22, 2013), the Honorable Robert B. Kugler of the U.S. District of New Jersey clarified the standard for awarding attorney’s fees under the Act. According to the court “when calculating an attorney’s fee award under the ADA, the ‘lodestar’ method provides the starting point for determining reasonable attorney’s fees.” The lodestar method entails multiplying the number of hours counsel spent working on the case by his or her reasonable hourly rate.

 

In Lasky, plaintiff’s counsel requested $380,468 in attorney’s fees and costs. Plaintiff’s counsel proposed that the court accept $450 as his reasonably hourly rate and award payment for 554 hours of work. Counsel for defendant sought to diminish both plaintiff counsel’s claimed hourly rate and the stated hours worked, arguing that both were excessive.

 

Somewhat troublingly, the court did not reduce plaintiff counsel’s claimed hourly rate by much. The court deemed $400 to be a reasonable hourly rate, citing to plaintiff counsel’s experience and niche practice as an “ADA specialist.” The court made this determination even though plaintiff’s counsel was awarded $360 per hour in another fee award motion in an ADA suit only one year prior. Interestingly, and seemingly with little basis, the court gave deference to plaintiff counsel’s self-proclaimed hourly rate of $400 per hour, as set forth in the case’s retainer agreement.

 

Likewise, the court eliminated only a small amount of plaintiff counsel’s claimed hours worked. Essentially, the court only took umbrage with plaintiff counsel’s claimed time for the motion for attorney’s fees itself. The court noted that plaintiff’s counsel had billed a “whopping 82.3 hours preparing” his motion for attorney’s fees. The court wrote “Plaintiff’s counsel by his own admission has tried countless ADA-related cases and has likely made similar motions whenever his client was the prevailing party. The more than 80 hours Plaintiff seeks payment for, which is roughly equivalent to two weeks of uninterrupted work, far exceed a reasonable number of hours to spend on this motion.”

 

The court deducted 50 hours from plaintiff counsel’s claimed work on his motion for attorney’s fees. After this comparatively minor reduction, the court had no problem awarding costs associated with 497.8 hours—equal to more than three months of uninterrupted work. The total counsel fee awarded by the court was $199,120.

 

Ultimately, the court did not find many of defendant’s arguments persuasive and awarded plaintiff’s counsel the majority of what he asked for. Nearly $200,000 is certainly a large fee award for a relatively straightforward ADA case that did not proceed to trial. The Laskyopinion stands for the proposition that once a party is deemed the “prevailing party,” the opposing party should not be optimistic about the prospect of greatly reducing claimed attorney’s fees. The opinion overall indicates that the potential for the award of costly attorney’s fees in ADA cases is real and significant.

What It Means to You

 

The potential for the award of attorney’s fees should be a consideration in any lawsuit brought under the ADA. Regardless of the damages and value of the underlying case, attorney’s fees have the potential to significantly increase the overall cost to the insured. Therefore, any settlement should take into account the potential for a subsequent fee award. If the case is one in which settlement is likely, it may be prudent to resolve the case early, when the hours invested by plaintiff’s counsel are lower. Another option is to structure the settlement to include fees. In any ADA case, your attorney should advise you of the best course of action, mindful of the potential for fees.