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‘Windfall’ fee reduced by two-thirds

A federal appeals court has reduced a fee award in a civil rights case by two-thirds, from $322,340 to a flat fee of $100,000.

In the face of the plaintiff’s “puritanically modest” jury award of $2,943, the fee award amounted to a “windfall” for the lawyers, the 4th U.S. Circuit Court of Appeals said in McAfee v. Boczar.

A Richmond U.S. District Court awarded the fees to plaintiff Eileen McAfee, who won her federal malicious prosecution case against Powhatan County Deputy Christine Boczar. The deputy arrested McAfee for allegedly refusing to disclose the location of a dog who bit McAfee when she offered the dog a treat. A hospital that treated McAfee reported the dog bite, prompting Boczar to investigate.

McAfee won acquittal of the state court criminal charge. In her follow-up civil rights case, her lawyer, William H. Hurd of Richmond, asked for $365,027 in fees, but Senior U.S. District Judge Robert E. Payne reduced the award by 10 percent after finding “block billing” by the plaintiff’s lawyers. The parties agreed to an award of $10,305 in costs.

The appellate panel upheld denial of qualified immunity to Boczar, saying it was clear the deputy did not know enough about the circumstances of the dog bite to believe McAfee violated the law. The fact that Boczar had made false statements to the state magistrate suggested Boczar understood there was no probable cause.

But McAfee didn’t win big enough to warrant the big fee award. It wasn’t just the substantial disproportionality between the fee award and the verdict, but the lack of litigation success, according to Judge Robert B. King, who wrote the panel’s Dec. 12 opinion.

Although lay observers and even some judges would regard as “exorbitant” hourly rates of $585 for lead counsel Hurd and $365 for associate Stephen Charles Piepgrass, the appellate court saw no abuse of discretion in the rates or in the nearly 997 hours the lawyers billed for the case.

But McAfee’s success in recovering her general out-of-pocket expenses did not justify a fee award of over $300,000 – approximately 109 times the verdict – when considering that she failed to recover any special compensatory damages, or any punitive damages at all, the panel said.

The reviewing court had only to compare McAfee’s “lofty expectations”— she attempted to secure a damages verdict of $500,000 or “something more” – with the jury’s “paltry damages award,” to see the “excessive fee award” was a “windfall,” according to King.

Wary of “further expense and the nonessential use of judicial resources,” the panel directed the fee award reduced by two-thirds, setting it at $100,000 plus costs.

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