Messier, et al v. Southbury Training, et al
RULING RE: The Legal Standard For Calculating Attorneys' Fees. Signed by Judge Ellen Bree Burns on 10/18/11. (Pesta, J.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD MESSIER, et al.,
SOUTHBURY TRAINING SCHOOL, et al.
NO. 3:94-CV-01706 (EBB)
RULING RE: THE LEGAL STANDARD FOR CALCULATING ATTORNEYS’ FEES
On June 15, 2011, this Court ordered the parties to submit memoranda of law setting
forth their claims regarding whether historic or current rates should be used to calculate the
lodestar figure for an award of attorneys’ fees. The Court concludes that use of the current rates,
rather than the historic rates is appropriate for calculating the lodestar figure in this case.
The law is well-settled regarding the use of current rates for calculating the lodestar
amount in litigation spanning several years. In Missouri v. Jenkins, 491 U.S. 274, 284 (1989),
the Supreme Court held that, in cases spanning several years, courts may apply “an appropriate
adjustment for the delay in payment” because “compensation received several years after
services were rendered . . . is not equivalent to the same dollar amount received reasonably
promptly as the legal services are performed . . . .” In accordance with this precedent, the
Second Circuit has held that, “in order to provide adequate compensation where the services
were performed many years before the award is made, the rates used by the court to calculate the
lodestar should be the current rather than historic hourly rates.” Gierlinger v. Gleason, 160 F.3d
858, 882 (1998). Courts in this circuit have repeatedly held that use of the current rates is
appropriate for calculating the lodestar amount in protracted litigation. See, e.g., Reiter v. MTA
New York City Transit Authority, 457 F.3d 224, 232 (2d Cir. 2006) (“The rates used by the court
should be the current, rather than the historic hourly rates.” [Internal quotation marks omitted]);
A.R. ex rel R.V. v. New York City Dept. of Educ., 407 F.3d 65, 83 (2d Cir. 2005) (“[C]urrent
rates rather than historical rates should be applied in order to compensate for the delay in
payment.”); Leblanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir. 1998) (same); Grant v.
Martinez, 973 F.2d 96, 100 (2d Cir. 1992) (in protracted litigation, the court may calculate all
hours at rates needed to compensate for the delay); NAACP v. Huntington, 961 F.2d 1048, 1049
(2d Cir. 1992) (“[D]istrict courts may use prevailing rates to compensate for delay in payment of
fees previously earned.”); M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp. 2d 233, 248 (D. Conn.
2008) (awarding fees based on current rates for legal work “performed many years ago”).
The court does, however, have the discretion not to apply the current rates if the delay in
the litigation was caused in whole or substantial part by the party seeking fees; see Gierlinger,
160 F.3d at 882; or if use of the current rate does not reflect the loss attributable to the delay.
See NAACP., 961 F.2d at 1049. Failure to use the current rate where appropriate, however,
constitutes reversible error. See Lochren v. Suffolk, 344 Fed. Appx. 706 (2d Cir. 2009).
In the present case, there has been over a seventeen-year delay in the payment of fees
earned by the plaintiffs’ attorneys. Moreover, reviewing the history of this case, the Court
concludes that the delay in the litigation was not due in whole or substantial part to the actions of
any one party. As such, use of current rates, rather than historic rates is appropriate for
calculating the lodestar figure. The issue of what figure constitutes a reasonable current rate for
services will be determined in a future ruling.
/s/ Ellen Bree Burns, SUSDJ
ELLEN BREE BURNS
SENIOR UNITED STATES DISTRICT JUDGE
Dated at New Haven, Connecticut this 18th day of October, 2011
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