ANDUJAR v. GENERAL NUTRITION CORPORATION

Filing 109

MEMORANDUM OPINION AND ORDER Granting in part and denying in part plaintiffs Motion for Attorneys Fee, Costs, [Prejudgment Interest] and Negative Tax Consequences [Doc. No. 67]; Denying defendants Motion to Strike the Amended Reply Affidavit of Plaintiffs Counsel [Doc. No. 81] and Staying plaintiffs enforcement of this award until after the Third Circuit rules on defendants appeal. Signed by Magistrate Judge Joel Schneider on 8/20/18. (dd, )

[Doc. Nos. 67, 81]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
SANTOS ANDUJAR,
Plaintiff,
Civil No. 14-7696 (JS)

v.
GENERAL NUTRITION CORPORATION,
Defendants.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on plaintiff’s “Motion for
Attorney’s Fees, Costs, [Prejudgment Interest] and Negative Tax
Consequences”

[Doc.

defendant’s

Motion

to

Plaintiff’s

Counsel”

No.

67].

Strike
[Doc.

Also

the

No.

before

Amended

81].

The

the

Court

Reply

Affidavit

Court

received

is
of
the

parties’ extensive opposition and supplemental submissions [Doc.
Nos. 68, 75, 76, 78, 83, 84, 88, 89, 90, 92, 107 and 108] and
held oral argument. For the reasons to be discussed, plaintiff’s
motion is granted in part and denied in part and defendant’s
motion is denied. The Court grants a statutory attorney fee of
$127,215.00 (lodestar) plus an enhancement of 25% or $31,803.75,
for a total attorney fee award of $159,018.75. The Court also
awards costs in the amount of $1,823.80, prejudgment interest in
the amount of $1,207.64, and negative tax consequences in an
amount to be determined. The enforcement of this award is stayed
1

at least until the Third Circuit rules on defendant’s pending
appeal.
Background
The parties are familiar with the background of this matter
so there is no need to set out a detailed summary. The Court
incorporates

by

reference

the

background

set

forth

in

its

February 28, 2018 Opinion denying defendant’s motion for a new
trial

or

in

the

alternative

amending

the

judgment.

2018

WL

1087494 (D.N.J. Feb. 28, 2018). Briefly, plaintiff alleged he
was

terminated

from

his

job

as

the

Manager

of

a

General

Nutrition store on account of his age. On October 26, 2017, the
jury returned a verdict in plaintiff’s favor finding defendant
violated the New Jersey Law Against Discrimination (“NJLAD”).
Plaintiff was awarded $123,926 in back pay, $75,000 in emotional
distress damages and $60,000 in front pay damages, for a total
damage award of $258,926. Judgment in this amount was entered on
October

30,

2017.

[Doc.

No.

66].

On

February

28,

2018,

defendant’s motion for a new trial or to amend the judgment was
denied. [Doc. Nos. 85, 86]. Defendant appealed the decision to
the Third Circuit where the appeal is pending.1
Plaintiff
prejudgment

seeks

interest.

an

award

Plaintiff

of

attorney’s

also

seeks

fees,
an

costs

award

for

and
the

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
1

negative tax consequences resulting from the judgment. Plaintiff
requests a lodestar of $130,500 in fees, plus an enhancement of
50%. Plaintiff also requests $1,823.90 in costs, $2,481.42 in
prejudgment

interest

consequences.

and

Defendant

$69,443.00
asserts

for

negative
objections

various

tax
to

plaintiff’s requests which will be discussed herein.
For

present

purposes

it

is

important

to

discuss

to

compute

his

final

plaintiff’s

counsel

proposes

Plaintiff’s

retainer

agreement

provides

he

is

to

be

how
fee.

paid

a

contingency fee of 45% of the net recovery. At first plaintiff
contended

he

was

entitled

to

the

full

amount

of

his

Court

awarded fee plus his contingency fee. In other words, a dual fee
recovery.2 Plaintiff proposed to pay a 1/3 referral fee of his
45%

net

recovery

to

his

referring

attorney.

In

addition,

plaintiff proposed to pay a 1/3 referral fee of the Court’s fee
award to the referring attorney.3 Defendant did not object to

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 6:411. 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
2

counsel’s proposed dual recovery but argued this should be taken
into

account

when

determining

whether

a

lodestar

enhancement

should be awarded and the percentage.4
After the Court questioned counsel’s proposed dual recovery
and

asked

for

supplemental

briefs

on

the

issue,

counsel

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.
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.
4

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?
MR. PESCATORE: True.
Tr. at 26: 12-14, Doc. No. 106; see also id. at 4:6-12:
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.
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.
Is that in fact correct?
MR. PESCATORE: It is correct under the agreement as
it’s written.
4

submitted a new proposal to calculate his attorney fee.

See

Plaintiff’s July 5, 2018 LB. Counsel now proposes that he is
entitled to 45% of the jury award plus 45% of the attorney fee
award. According to counsel, plaintiff will not only receive 55%
of the jury award, but also “fifty-five cents (55¢) on every
dollar

awarded,

including

any

award

of

attorney’s

fees

and

costs.” Id. at 1.5 Defendant opposes plaintiff’s new computation
as excessive. See July 17, 2018 LB, Doc. No. 108.
Discussion
The parties do not dispute that a party that prevails on a
NJLAD claim is entitled to a reasonable attorney’s fee award.
N.J.S.A. 10:5-27.1. There also is no dispute that plaintiff is a
prevailing

party

since

plaintiff

succeeded

on

a

“significant

issue in litigation which achieve[d] some of the benefit the
parties sought in bringing suit.” P.N. v. Clementon Board of
Education,

442

F.3d

848,

855

(3d

Cir.

2006)(citation

and

quotation omitted). In addition, the parties do not dispute the
starting point in the attorney’s fee analysis is to determine
the lodestar amount. Lanni v. New Jersey, 259 F.3d 146, 149 (3d
Cir

2001).

reasonable

The
hourly

lodestar
rate

by

is
the

computed

by

reasonable

multiplying
number

of

the
hours

expended. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The

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
5

lodestar is presumptively reasonable but may require subsequent
adjustment. United Automobile Workers Local 259 Social Security
Dept. v. Metro Auto Center, 501 F.3d 283, 290 (3d Cir. 2007).
1.

Hourly Rate

Plaintiff asks for an hourly rate of $450. The Court finds
this

rate

is

reasonable

and

appropriate

in

the

case.

A

reasonable hourly rate is calculated according to the prevailing
market rate in the community. S.D. v. Manville Bd. of Educ., 989
F.

Supp.

649,

656

(D.N.J.

1998).

“This

burden

is

normally

addressed by submitting the affidavits of other attorneys in the
relevant legal community, attesting to the range of prevailing
rates charged by attorneys with similar skill and experience.”
Id.

A

court

prevailing
rates

should

party’s

prevailing

lawyers

of

assess
attorneys

in

the

reasonably

the

skill

and

and

compare

community
comparable

for

experience
their

similar

skill,

rates

of

the

to

the

services

experience,

by
and

reputation. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
1990). The party seeking to recover attorney’s fees has the
initial

burden

of

“producing

sufficient

evidence

of

what

constitutes a reasonable market rate for the essential character
and complexity of the legal services rendered in order to make
out a prima facie case.” Lanni, 259 F.3d at 149.
Plaintiff’s
representations

counsel’s
reveal

he

certification,
is
6

an

affidavits

experienced

and

and

skilled

employment

law

litigator.

Richard

M.

Pescatore,

Esquire,

has

been admitted to the Bar for over 30 years and he has been a
Certified Trial Attorney since the mid-1990’s (Certification of
Counsel

(“Cert.”)

¶4,

Doc.

No.

67-1).

Counsel

has

handled

hundreds of employment law cases. Amended Affidavit (“Am. Aff.”)
¶6, Doc. No. 78. Further, counsel has submitted the affidavits
of three (3) experienced South Jersey employment law litigators
who attest to the fact $450 per hour is a reasonable hourly rate
in

the

South

Jersey

legal

community

for

an

attorney

of

Mr.

Pescatore’s skill and experience. See Exhibit B to Plaintiff’s
Motion, Doc. Nos. 67-5, 68.6 Based on plaintiff’s submissions,
the

Court

will

award

plaintiff’s

counsel

an

hourly

rate

of

$450.00 per hour.
Defendant argues counsel’s hourly fee should be rejected
because

counsel

did

skill,

experience,

not

provide

reputation

information
and

concerning

employment

his

experience.

Defendant’s Opposition Brief (“Opp.”) at 6, Doc. No. 75. The
Court disagrees. As noted, plaintiff’s counsel’s certification
and affidavits attest to this information. Notably, defendant
does not otherwise challenge plaintiff’s $450.00 per hour fee.
Accordingly, the Court rules that plaintiff’s $450.00 per hour
fee

for

the

work

done

on

this

case

is

reasonable

and

appropriate.
The three attorneys are Michelle J. Douglas, Kevin Costello and
Allan Richardson.
7
6

2.

Reasonableness of Fees

The

parties

do

not

dispute

plaintiff

is

entitled

to

a

reasonable attorney’s fee as a prevailing party in the case. As
noted, the lodestar provides the starting point for determining
a

reasonable

attorney's

fee.

Lanni,

259

F.3d

at

149.

The

lodestar is calculated by multiplying a reasonable hourly rate
by the number of hours the moving counsel reasonably billed for
the litigation. Id. A district court may discount any hours that
it

deems

unreasonable,

including

those

considered

to

be

“excessive, redundant, or otherwise unnecessary[.]” See Hensley,
461 U.S. at 433. Although the Court has substantial discretion
to

determine

what

constitutes

a

reasonable

billing

rate

and

reasonable hours, once the lodestar is determined it represents
the presumptive reasonable fee. Lanni, 259 F.3d at 149.
After

the

lodestar

amount

is

calculated

a

court

has

discretion to adjust the fee up or down based on a number of
different factors. Id. at 151; Pub. Interest Research Group
of N.J., Inc. v. Windall, 51 F.3d 1179, 1185 (3d Cir. 1995).
These factors include, but are not limited to: (1) the time
and labor required; (2) the novelty and difficulty of the
questions;
service

(3)

the

properly;

skill

(4)

the

required
preclusion

to
of

perform

the

employment

legal
by

the

attorney due to acceptance of the case; (5) the customary
fee; (6) whether the fee is fixed or contingent; (7) time
8

limitations imposed by the client or the circumstances; (8)
the

amount

involved

and

the

results

obtained;

(9)

the

experience, reputation, and ability of the attorneys; (10)
the “undesirability” of the case; (11) the nature and length
of

the

professional

relationship

of

the

clients;

and

(12)

awards in similar cases. Hensley, 461 at 429-30 n.3.
A
allow

plaintiff’s fee petition must be specific enough to
the

court

to

determine

if

the

hours

claimed

are

unreasonable for the work performed. Washington v. Phila.
County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir.
1996). Nevertheless, exacting detail is not necessary:
“a

fee

petition

information

as

to

should
the

include

hours

some

devoted

to

fairly

definite

various

general

activities, e.g., pretrial discovery, settlement negotiations….
However, it is not necessary to know the exact number of minutes
spent nor the precise activity to which each hour was devoted
nor the specific attainments of each attorney.” Id. at 1037-38
(citation

and

quotation

omitted).

The

time

to

prepare

and

present an application for fees is recoverable. Maldonado v.
Houstoun, 256 F.3d 181, 187 (3d Cir. 2001). The lodestar and
Hensley

reduction

analysis

applies

prepare a fee petition. Id. at
3.

188.

Lodestar Analysis

9

to

the

claimed

fees

to

Plaintiff submitted two sets of time sheets documenting
his time. The first set is attached to plaintiff’s motion
(Doc. No. 67, Exhibit A) and includes time from 3/17/14 to
11/6/17.
second

The total requested lodestar is $111,150.00. The
set

of

time

sheets

is

attached

to

plaintiff’s

supplemental affidavit (Doc. No. 88, Exhibit A) and includes
time from 11/8/17 to 3/13/18. The total requested lodestar is
$19,350.
Defendant challenges the reasonableness of plaintiff’s
fees in several general respects. Defendant’s arguments are
rejected.

To

the

extent

defendant

argues

this

was

a

straightforward simple case, the Court disagrees. Although
plaintiff and defense counsel have likely litigated more
complex

cases,

the

case

contentious

and

the

challenging

discovery

was

Court

opposed

judgment

and

participated

credit,

plaintiff’s
represented

had

routine.
to

disputes.

successfully

zealously

not

in

counsel
his

a

address

In

defendant’s

client.

and

addition,
motion

three-day

(as

Discovery

did
Mr.

was

resolve

plaintiff

for

summary

trial.

To

his

defense

counsel)

Andujar

deserved

nothing less. Plaintiff’s counsel would have been shirking
his professional responsibilities if he took “shortcuts.”
In

support

submitted

his

of

his

detailed

fee

application

timesheets.

Mr.

After

Pescatore
reviewing

counsel’s time entries in detail, the Court finds counsel’s
10

time was well spent, reasonable and appropriate. Counsel
will not be penalized because he runs a small office and
does

not

have

the

benefit

of

a

large

staff

of

young

attorneys. Under the circumstances, counsel’s “hands on”
approach to the litigation was reasonable, necessary and
appropriate.
Although

not

clear,

defendant

seems

to

argue

the

sixteen (16) hours plaintiff’s counsel spent to prepare for
trial was excessive since counsel allegedly only presented
“minimal testimony and evidence.” Opp. at 8. This argument
is

rejected.

The

Court

finds

16

hours

is

a

reasonable

expenditure of time given that plaintiff’s counsel not only
had to prepare his case, but he also had to prepare to
rebut defendant’s case. Defendant is fortunate plaintiff’s
counsel used his time wisely and only spent 16 hours to
prepare for trial.
Defendant argues the Court should disallow hours spent
on “purely clerical and administrative entry tasks[.]” Opp.
at

9.

The

Court

agrees.

However,

defendant

does

not

support, other than by general arguments, his contention
counsel spent time on clerical and administrative tasks.
Defendant

argues

every

time

entry

for

.1

should

be

disallowed. Tr. at 17:10-15. (“[W]e did not parse every
single record[.]”). In addition, defendant argues all time
entries for .5 hours or under “indicate[ ] a routine or
11

ministerial

task.”

Opp.

at

9.7

Instead

of

considering

defendant’s general objections to plaintiff’s time entries,
the Court has individually reviewed defendant’s objections
and

plaintiff’s

time

entries

appropriate.

The

Court

ruling

all

time

that

will

to

determine

not

entries

issue

less

a

than

if

they

carte
.5

are

blanche

should

be

disallowed. Defendant identified its objections by striking
out what it deemed administrative work. See Opp., Exhibit
D.
Almost all of defendant’s objections are off base. It
is plain to the Court that not every time entry of .5 or
lower is objectionable. For example, it is appropriate to
compensate plaintiff for his initial phone call from his
referring

attorney

correspondence

from

(3/17/14
client

-

(3/21/14

.5),
-

.2)

receipt
and

of

preparing

letters to defendant (3/25/14 - .3, 4/16/14 - .3). Many of
counsel’s .1 and .2 time entries are for the receipt of
correspondence

and

communications

from

the

Court.

Plaintiff’s counsel should be compensated for this time.
This task is not appropriately done by clerical staff.
As to plaintiff’s request for fees through November 6,
2017,

the

Court

has

thoroughly

reviewed

defendant’s

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.
12
7

individual objections to plaintiff’s time entries of .5 or
less. The Court did not identify any time entries that are
objectionable. Plaintiff’s counsel’s “hands on” approach to
the case was appropriate. However, the Court will deduct
the 6.5 hours ($2,925.00) counsel estimated it would take
to

prepare

his

application

for

fees.

The

actual

time

counsel spent on counsel’s fee application is included in
the

time

sheets

attached

to

counsel’s

supplemental

affidavit.
Defendant argues the 12 hours counsel spent to oppose
defendant’s dispositive motion was excessive. Id. at 10.
The Court disagrees and rules that plaintiff’s counsel’s
time was well spent. Thus, the Court approves plaintiff’s
lodestar

application

for

$108,225.00

($111,150.00

-

$2,925.00) in fees through November 6, 2017.
In addition to the lodestar through November 6, 2017,
plaintiff

also

seeks

a

fee

award

for

the

time

spent

addressing his fee motion and other work performed from
11/7/17 to 3/13/18. As already noted, the time spent to
prepare a fee petition is recoverable. So too is the time
plaintiff spent to oppose defendant’s post-trial motion.
These

additional

fees

are

set

forth

in

Mr.

Pescatore’s

supplemental affidavit. Counsel requests reimbursement for
an additional 43 hours or a total lodestar of $19,350. The
Court reviewed plaintiff’s time entries and finds that the
13

.2

time

entries

reimbursed

on

12/8/17

and

the

time

because

administrative/clerical

task

of

12/13/17
was

should

spent

filing

William

not
on

be
the

Martini’s

affidavits. Thus, only 42.2 additional hours or $18,990.00
in additional fees is awarded.
For the foregoing reasons the Court finds that the
appropriate

lodestar

$127,215.00.

The

is

Court

$108,225.00
also

plus

finds

$18,990.00
lodestar

the

or
is

reasonable and will not be increased or decreased based on
the Hensley, supra, factors.
4.

Calculation of Plaintiff’s Attorney’s Fee

Under

New

Jersey

law

a

lawyer’s

fee

must

be

reasonable. Rule of Professional Conduct (“RPC”) 1.5(a);
see also A.W. by B.W. v. Mount Holly Twp. Bd. of Educ., 453
N.J. Super. 110, 121 (App. Div. 2018)(even when a plaintiff
applies for fee shifting the fee award must be reasonable).
Further, in the first instance counsel’s fee or retainer
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
lodestar

of

fee

or

$115,695.99,

$127,215.00.

plus

These
14

his

two

Court-awarded

amounts

total

$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,

exclusive

of

the

net

interest

and

amount

payable

negative

tax

to

plaintiff,

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
This total does not include plaintiff’s proposed enhancement.
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
8
9

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.”

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.
11

16

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

1979)(holding
statutory

that

award

Co.,

595

counsel’s

because

the

F.2d
fee
fee

256,
was

257

(5th

limited

agreement

Cir.

to

the

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

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
12

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-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

enhancement in
between
twenty
lodestar.

typical contingency cases
and
thirty-five
percent

ranging
of
the

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.
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
13

Without

the

prospect

of

a

potential

high

fee,

the

Court

is

concerned that hourly or relatively low salaried workers may not
obtain
counsel

the

skilled

should

not

representation
only

represent

they
those

deserve.
with

Competent

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

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 his successful prosecution of the case.
N.J.S. 10:5-27.1.

Plaintiff’s motion seeks $1,453.90 in costs

itemized as follows:
Description

Rate

Complaint
$250.00
6/24/16 Telephone conference AT&T
6.89
A+ Certified Reporting
708.90
Pacer Service Center
12.30
Subpoena
55.00
Carol Farrell, CRR, RMR
420.00
Total Reimbursable Expenses
$1,453.09
Plaintiff’s

Amended

Affidavit

seeks

an

additional

$369.90

in

Court Reporter costs (Doc. No. 78, Exhibit J). Thus, plaintiff
asks for a total cost reimbursement of $1,823.80.
Defendant opposes plaintiff’s application for costs on the
ground plaintiff failed to provide the required documentation to
substantiate his claim. Opp. at 17. The Court disagrees. See
Doc. Nos. 67-6, 76, 78. Defendant argues plaintiff should not be
reimbursed the cost to subpoena Christian Gosseaux to testify at

The Court deems it appropriate to only base counsel’s
enhancement on the lodestar and not also on the other items to
be awarded that are discussed in this Opinion.
21
14

trial. Again, the Court disagrees and rules it was necessary for
plaintiff to subpoena Gosseaux. Plaintiff already retained his
subpoena

service

to

serve

Gosseaux

before

defense

counsel

offered to voluntarily produce him at trial. Counsel represents
there was no time or opportunity to stop the subpoena service
from moving forward for a cost already incurred. See Amended
Affidavit

¶22.

Gosseaux

Under

should

be

these

circumstances,

reimbursed.

Thus,

the
the

cost

to

Court

serve

approves

plaintiff’s application for costs in the amount of $1,823.80.
7.
It

Prejudgment Interest
is

well

established

that

plaintiff

is

entitled

to

prejudgment interest on his successful NJLAD claim. Gallo, 299
N.J. Super. 661. The Court rejects defendant’s argument that
plaintiff’s application for interest should be denied because he
failed to present proofs at trial that he attempted to mitigate
his damages. Opp. at 19. To the contrary, the Court has already
held that plaintiff presented this evidence. 2018 WL 1087494, at
*11-12.

In

addition,

as

the

Court

wrote

when

it

denied

defendant’s motion for a new trial, it is defendant’s burden to
prove

plaintiff

plaintiff’s

failed

burden

to

to

mitigate

prove

he

his

damages;

mitigated

his

it

is

not

damages.

The

verdict in the case demonstrates the jury found defendant did
not satisfy its burden. Id. at *11-13. The Court also notes that
a plaintiff’s failure to mitigate damages alone, which did not
22

occur in the case, is insufficient to overcome the presumption
in favor of a prejudgment interest award. Booker v. Taylor Milk
Co., Inc., 64 F. 3d 860, 869 (3d Cir. 1995).15
Although
defendant

plaintiff

correctly

is

points

entitled
out

to

prejudgment

interest

is

not

interest,

available

on

plaintiff’s entire award. Prejudgment interest is not awarded
for

future

lost

wages.

Gallo,

290

N.J.

Super.

at

662.

In

addition, prejudgment interest will not be added to plaintiff’s
emotional distress award. See Milazzo v. Exxon Corp., 243 N.J.
Super. 573, 577 (Law Div. 1990)(“[T]he purpose of prejudgment
interest is not punitive but rather compensatory in nature to
indemnify plaintiff for the loss of moneys which could have been
earned if the payment had not been delayed and which defendants
had the use thereof.”).
Thus, plaintiff is entitled to prejudgment interest on his
back pay award of $123,926.00. The Court accepts defendant’s
calculation that this amount through October 2017 is $1,207.64.16
8.

Negative Tax Consequences17

Aside from its mitigation argument, defendant has not argued
that any other exceptional circumstance exists to justify the
suspension of prejudgment interest.
16
Counsel’s contingent fee “shall not be computed on the
interest” included in the judgment. N.J.R. 4:42-11(b).
17 As the parties know, the parties have spent substantial time
addressing the Ferrante issue discussed infra. After the
parties’ first round of expert affidavits were served, the Court
asked for supplemental submissions to address the impact of the
recent tax changes. All parties have unquestionably had a full
and fair opportunity to address the Ferrante issue.
23
15

In Ferrante v. Sciaretta, 365 N.J. Super. 601, 603 (Law
Div. 2003), the court held that a plaintiff is entitled to be
compensated for the negative tax consequences of receiving a
lump

sum

award

in

employment

discrimination

actions.

Accord

Quinlan v. Curtis-Wright Corp., 409 N.J. Super. 193, 218 (App.
Div. 2009); Montone v. City of Jersey City, C.A. Nos. 06-280
(SRC), 06-3790 (SRC), 2018 WL 3536093 (D.N.J. July 23, 2018).
Plaintiff
defendant,

seeks

this

however,

compensation.
that

“any

The

such

Court

agrees

additional

award

with
is

restricted to the difference between the tax bracket that the
employee was in at the time of employment and the higher tax
bracket the employee was placed into as [a] result of the lump
sum award.” Opp. at 21.
Contrary to defendant’s argument, the Court finds defendant
was put on fair notice that plaintiff would make a Ferrante
claim. See Plaintiffs Motion, Exhibit G (Plaintiff’s Answers to
Interrogatories). The Court rejects defendant’s argument that
plaintiff’s notice “was buried in the general objections portion
of

Plaintiff’s

Answers

to

Interrogatories.”

Opp.

at

23.

Plaintiff’s notice was plain and obvious. In addition, although
a Ferrante claim was not specifically listed in the Joint Final
Pretrial Order (“JFPTO”), it is not clear this was required. If
it was required, the Court deems the JFPTO amended to prevent
manifest injustice to plaintiff. At all relevant times defendant
24

knew or should have known plaintiff was making a Ferrante claim.
In addition, defendant has not been prejudiced by plaintiff’s
failure to specifically mention the claim in the JFPTO. Under
these circumstances, it would be a miscarriage of justice to
deny plaintiff relief to which he is entitled as a successful
NJLAD plaintiff.18
Plaintiff’s Ferrante claim is supported by the affidavits
of

William

Martini,

Jr.,

CPA.

[Doc.

Nos.

67,

Exhibit

G,

78

Exhibit K]. Martini opines plaintiff will suffer a negative tax
of $69,443.00 after payment of the verdict. Martini opines the
entire award of $258,926.00 is taxable and assumes plaintiff
will earn the same amount as he did in 2016. In opposition to
Martini’s

calculation,

Robert

Lynch,

P.

CPA.19

defendant
Lynch

submitted

concluded

the

the

affidavit

negative

tax

of
is

$29,650.00.
The primary difference in the calculations of Martini and
Lynch appears to be that Lynch did not include the amount of
plaintiff’s award for future pay and emotional distress when he
calculated plaintiff’s tax. Lynch did not consider plaintiff’s

Similarly, the Court rejects defendant’s argument that
plaintiff’s Ferrante claim should be denied because plaintiff
did not identify his Ferrante expert before trial. Opp. at 24.
Since plaintiff’s Ferrante claim was not ripe until after a
verdict was returned in plaintiff’s favor, it was
not
appropriate to identify an expert until after the trial verdict
was returned.
19 The Court concludes Martini and Lynch are qualified CPA’s to
perform a Ferrante analysis.
25
18

future pay award because that was what he was told by defense
counsel. Lynch Aff. ¶5. However, no case law is cited to support
this position. In fact, the case law defendant relies upon says
exactly the opposite. O’Neill v. Sears, Roebuck and Company, 108
F.

Supp.

2d

443,

447

(E.D.

Pa.

2000)(front

pay

should

be

considered when calculating the negative tax consequences of a
jury award in an age discrimination case). It makes logical
sense that if the purpose of a Ferrante award is to compensate
plaintiff for moving into a higher tax bracket, the amount of
plaintiff’s future pay award should be considered. After all,
the award will be taken into account in computing plaintiff’s
tax bracket. Defendant does not argue plaintiff does not have to
pay taxes on the front pay award.
Another difference in the Martini and Lynch affidavits is
that Lynch did not include plaintiff’s emotional distress award
in his computation but Martini did. In this instance Lynch is
correct.

Compensatory

damages

such

as

those

for

emotional

distress should not be included in the negative tax calculation.
As noted in O’Neill:
The compensatory and liquidated damages, however, are
only a product of this lawsuit. [Plaintiff] would not
have received these sums but for the defendant’s
discriminatory action. Hence, allowing the plaintiff
to recover the increased tax he will have to pay on
these sums does more than make him whole. It gives the
plaintiff a windfall.
Id. at 448 (emphasis in original).
26

Thus, it appears the Court has not been presented with a
correct negative tax calculation.20 Plaintiff incorrectly assumes
his entire award should be taken into account when calculating
the negative tax when only plaintiff’s front and back pay awards
should be considered. On the other hand, defendant incorrectly
omits the front pay award in its calculation. In addition, the
parties’ experts did not have the benefit of this Opinion when
they

did

their

calculations.

Rather

than

doing

its

own

calculation of plaintiff’s negative tax consequences, the Court
leaves it to the parties to agree on the correct amount.21
9.

Motion
to
Affidavit

Defendant’s

Strike

request

to

Plaintiff’s
strike

the

Counsel’s

amended

Amended

affidavit

of

plaintiff’s counsel is denied. Plaintiff’s motion for attorney’s
fees

was

originally

Certification
plaintiff’s

[Doc.
motion

supported
No.

Mr.

67-1].
Pescatore

only

by

After
served

Mr.

Pescatore’s

defendant
a

more

opposed
detailed

affidavit [Doc. No. 76]. After defendant raised objections to
the substance of the affidavit [Doc. No. 77], the affidavit was
amended [Doc. No. 78]. Defendant seeks to strike the amended
affidavit because: (1) it is not sufficiently detailed, (2) the

To the extent defendant argues plaintiff’s calculation or
methodology is not sufficiently detailed or is otherwise flawed,
the Court disagrees. Martini set out in sufficient detail how he
did his calculations.
21 The Court will get involved only if the parties cannot agree
on the correct amount.
27
20

affidavit

is

not

based

on

personal

knowledge

and

admissible

facts, (3) counsel has failed to supply proof of his referral
agreement, and (4) the affidavit contains argument in violation
of the Federal and Local Rules of Civil Procedure.
The Court has reviewed plaintiff’s affidavit in detail and
discounts

defendant’s

supplied

sufficient

arguments.

detail

to

Plaintiff’s

enable

the

counsel

Court

to

has

decide

plaintiff’s application for relief. In addition, to the extent
there are any missing details in the amended affidavit, the
Court has taken this into account in its ruling. If any argument
exists in counsel’s affidavit, it has been ignored. Further, any
issues regarding plaintiff’s referral fee is a “red-herring.” As
discussed,

the

referral

fee

is

irrelevant

to

the

Court’s

decision. Importantly, defendant has been given every reasonable
opportunity

to

respond

to

plaintiff’s

affidavits.

All

of

defendant’s requests to submit additional responsive affidavits
and briefs have been granted.
For

the

defendant’s

sake

of

requests

completeness,
to

strike

the

Court

denies

plaintiff’s

all

of

supplemental

submissions, including the supplement briefs and affidavits of
Mr.

Pescatore

and

William

Martini

(plaintiff’s

negative

tax

consequences expert). Most of these submissions were directly
relevant to the issues addressed by the Court. Further, all of
the

submissions

were

made

before
28

oral

argument

was

held.

Importantly, defense counsel acknowledged he had an opportunity
to respond to all of plaintiff’s submissions.22 To the extent
plaintiff’s submissions may not have been technically permitted
by

the

Local

transgressions

Rules

are

of

Civil

excused.

See

Procedure,

L.

Civ.

R.

plaintiff’s

83.2(b)(“Unless

otherwise stated, any Rule may be relaxed or dispensed with by
the

Court

if

adherence

would

result

in

surprise

or

injustice.”).23 The Court’s indulgence is consistent with the
Third Circuit’s aversion to the exclusion of important evidence.
See Love v. Rancocas Hospital, C.A. No. 01-5456 (JEI), 2005 WL
6011252, at *1 (D.N.J. March 31, 2005).
Conclusion
For
costs,

the

foregoing

prejudgment

granted.

The

reasons,

interest

Court’s

and

plaintiff’s
negative

tax

results

motion

in

ruling

for

fees,

consequences
the

is

following

distribution. The total judgment in the case is $258,926.00.
Plaintiff’s

counsel

is

awarded

a

total

fee

(including

enhancement) of $159,018.75 ($127,215 plus $31,803.75) and costs
in the amount of $1,823.80.24 Plaintiff is entitled to be paid
the

judgment

of

$258,926.00,

plus

$1,207.64

in

prejudgment

Defense counsel stated: “Your Honor, the Court gave us every
opportunity to put the arguments that we feel we need to put in
the record, and I think that our papers are complete.” Tr. at
3:24 to 4:1.
23 Defendant has been given the same leeway as plaintiff.
24 For the purpose of calculating plaintiff’s 45% contingent fee,
the Court did not include an amount for negative tax
consequences.
29
22

interest

and

an

amount

to

be

determined

for

negative

tax

consequences. All of these amounts shall be paid by defendant if
its appeal is not successful. The following Order consistent
with this Opinion shall be entered.
ORDER
For all the foregoing reasons, IT IS HEREBY ORDERED this
20th day of August, 2018, that plaintiff’s Motion for Attorney’s
Fee, Costs, [Prejudgment Interest] and Negative Tax Consequences
[Doc. No. 67] is GRANTED in part and DENIED in part; and it is
further
ORDERED as follows:
1.

Plaintiff is awarded $127,215 in attorney’s fees;

2.

Plaintiff

is

awarded

an

enhancement

of

25%

or

$31,803.75.
3.

Plaintiff is awarded $1,823.80 in costs;

4.

Plaintiff

is

awarded

$1,207.64

in

prejudgment

interest; and
5.

Plaintiff is awarded negative tax consequences in an

amount to be determined consistent with this Opinion; and it is
further
ORDERED that defendant’s Motion to Strike the Amended Reply
Affidavit of Plaintiff’s Counsel [Doc. No. 81] is DENIED; and it
is further

30

ORDERED that this Order is entered without prejudice to
plaintiff’s right to file a supplemental request for fees and
costs

(as

well

as

interest

and

negative

tax

consequences)

incurred after March 13, 2018, the last date this Opinion and
Order addresses. The supplemental filing, if any, shall be filed
consistent with the applicable Local and Federal Rules of Civil
Procedure and not before the Third Circuit rules on defendant’s
appeal.

This

plaintiff’s

Order

right

to

is

also

seek

entered

fees

for

without
his

prejudice

appellate

work

to
if

defendant’s appeal to the Third Circuit is not successful; and
it is further
ORDERED
STAYED

until

that

plaintiff’s

after

the

enforcement

Third

Circuit

of

rules

this
on

award

defendant’s

appeal.
s/Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: August 20, 2018

31

is