Baughman v. Wilson Freight Forwarding Co.

GARTH, Circuit Judge,

concurring.

I concur fully in Chief Judge Seitz’s opinion and therefore in the result which it reaches. Two aspects of that opinion however do not completely express my views which I believe to be relevant in the context of calculating an award of attorney’s fees in a statutory case (as distinct from a common fund case). I therefore believe it appropriate to add the following two observations in the hopes that they may afford additional guidance to the district courts.

First, while acknowledging that we are not called upon to delineate those erroneous and “unsuccessful action[s] of counsel” which result in the discrediting of hours “attributable to such error,” see Maj.Op. at 1216, nevertheless I believe that it is important to define the standard by which counsel’s actions may be assessed. In my opinion, the court should not disallow compensation for hours where an attorney in good faith and with reasonable grounds to believe that his or her conduct is proper nevertheless commits a trial error, which error results in additional proceedings. For example, I have in mind a situation where an attorney, in good faith and with reasonable grounds to believe that evidence which he or she offers is properly admissible, urges the admission of evidence which is ultimately held excludable, thereby necessitating an award of a new trial or a reversal. The hours attributable to the attorney’s error should not, in my opinion, be subtracted from the lodestar hourly component. However such a situation is a far different situation than the one presented in this case.

My second observation concerns that portion of Chief Judge Seitz’s opinion which deals with the reasonableness of the attorney’s fees. While I concur with Part II — F of that opinion, I would not restrict the district court’s calculation of the reasonableness of an attorney’s fee award in an antitrust case to solely the consideration of the policies underlying section 4 of the Clayton Act. Rather, it is my understanding that where a statute authorizes an award of attorney’s fees, the district court may consider — in addition to- the substantive purposes of the statute — -factors going to the reasonableness of the award. I have previously characterized this process as the “post-Lindy discretionary adjustment,” see Hughes v. Repko, 578 F.2d at 491-493 (3d Cir. 1978) (Garth, J., concurring).1 Of course , those adjustments must not only be supported by a statement of reasons, as Chief Judge Seitz points out, but they must *1221also be based on the record. In sum, the district court judge must not only be guided by the particular legislation under which the action was brought and the fees awarded, but the court is also obliged to evaluate the reasonableness of the award under the principles established in Hughes v. Repko. See id. at 488 (majority opinion); id. at 491 — 492 (Garth, J., concurring).

. These factors include, for example, the customary attorney’s fees for similar work, fee awards made in similar cases, etc. See Hughes v. Repko, 578 F.2d at 492 n.6 (Garth, J., concurring), citing Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir. 1975).