fee cases. Just as the Second Circuit has applied the standards set forth in statutory fee cases such as Blum, Delaware Valley I, and Delaware Valley II to equitable fund cases, it will presumably apply the precepts of Burlington as well. Viewing the case at bar in this light, it is clear that no fee multiplier should be awarded to counsel.
First, counsel asserts that it took a significant risk in bringing and prosecuting this action because the litigation was undertaken on a contingency basis, which would have yielded no fee had the class not prevailed. (Plaintiff's Proposed Findings of Fact at 5.) This argument has been foreclosed by Burlington. See supra IIB. Risk of failure on the case's merits was a possibility counsel presumably considered before taking the case.
Awarding a risk multiplier would provide counsel with a windfall, since a reward for their risk-taking would, essentially, be double-counted because, as stated above, the difficulty of the litigation is taken into account in the billable hours and fee rates used to calculate the lodestar figure. Enhancement of that figure is, therefore, not necessary.
Counsel's contention that even if the class was successful they might not be able to collect a judgment against defendants, a situation that would result in nonpayment of attorneys' fees, is no ground for awarding a fee multiplier. As the Supreme Court stated in Jenkins, "In [ Delaware Valley II], 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987), we rejected an argument that a prevailing party was entitled to a fee augmentation to compensate for the risk of nonpayment." Jenkins, 491 U.S. at 282; see also Huntington Branch, National Association for the Advancement of Colored People v. Town of Huntington, New York, 961 F.2d 1048, 1050 (2d Cir. 1992) (same).
F. This Case Satisfies Justice O'Connor's Concurrence Test Set Forth In Delaware Valley II
Justice O'Connor, concurring in Delaware Valley II, 483 U.S. at 733, stated that a fee award should be enhanced if such an enhancement is "necessary to bring the fee within the range that would attract competent counsel." Id. In her Burlington dissent, Justice O'Connor reiterated "the view that in certain circumstances a 'reasonable' attorney's fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take the case in the first place." Burlington, 112 S. Ct. at 2648 (citation omitted).
Even under Justice O'Connor's position, which has been specifically rejected by the Supreme Court, id. at 2642, this Court would still be compelled to deny a multiplier in the case at bar. Dozens of New York City's top law firms vied for the opportunity to represent the instant class; there was simply no problem attracting competent counsel, even without the promise of a fee enhancement award.
For the foregoing reasons, the 1.6 risk multiplier is rescinded, and counsel is awarded $ 1,465,809 in fees, plus $ 299,672.98 in litigation expenses, with interest on the amounts now granted to run from the date of the original Fee Order at the same rate of interest earned on the settlement fund.
HON. LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: Hauppauge, New York
September 1st, 1992