RULE 37
How to Afford a Lawyer
Introduction
Whistleblower retaliation cases can be complex and time-consuming, often taking years to resolve. Fortunately, in the United States, the “American Rule” allows successful whistleblowers to have their legal fees paid by the company at full market rates.
This provides a strong incentive for attorneys to take on these cases. In the event that the whistleblower wins the case, the attorney’s fees can be included in the damages paid to the victim of discrimination.
As outlined in this rule, there are specific principles that govern the awarding of attorney’s fees. This means that whistleblowers do not need to worry about paying their legal fees out of pocket if they are successful in their case.
Practice Tips
Each whistleblower anti-retaliation law must be checked to ensure that attorney fees are either covered explicitly under the law or eligibility for fees are included in the Civil Rights Attorney Fee Awards Act, 42 U.S.C. § 1988. Here are key Supreme Court decisions on how to calculate statutory fee awards:
- Perdue v. Kenny, 559 U.S. (2010) (fee enhancements)
- Hensley v. Eckerhart, 461 U.S. 429 (1983) (lodestar method)
- Blum v. Stenson, 465 U.S. 886 (1984) (determining fee rate)
- Missouri v. Jenkins, 491 U.S. 274 (1989) (use of current rates; paralegals)
- City of Riverside v. Rivera, 477 U.S. 561 (1986) (no proportionality)
- Blanchard v. Bergeron, 489 U.S. 87 (1989) (fee not controlled by agreement)
Resources
The major cases interpreting the statutory fee provisions contained in most whistleblower protection laws are set forth in the practice tips cited at the end of Rule 37. The best single source of information on how to prepare a fee petition to ensure that attorneys are paid at a fair market value and compensated for all reasonable time is set forth in the numerous rulings decided under:
- Civil Rights Attorney Fee Awards Act, 42 U.S.C. § 1988
Precedents decided under this act are regularly applied to other civil rights, employment, and whistleblower laws that also contain statutory fee provisions:
- Perdue v. Kenny, 130 S.Ct. 1662 (2010) (“virtually identical language appears in many fee shifting statutes”)
Attorney fees are generally not available under state common law remedies. If filing a claim under a statute, review the specific language and ensure that there is a fee provision.
In Murray v. UBS Securities, LLC, No. 14-cv-927 (S.D. N.Y. Dec. 16, 2020), the district court reviewed the law on attorney fees in a SOX whistleblower case. The court made significant reductions in the fees, but still awarded the plaintiff’s counsel over $1.6 million.
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