Jenna Dickenson v. Charles T. Johnson, et al.

This Court has long held attorney’s fees may be awarded from a common fund or equitable fund based either on the attorney’s fees reasonably incurred and billed, see Trustees v. Greenough, 105 U.S. 527, 530-31, 537-38 (1882), or as a modest percentage of the fund, see Central RR & Banking Co. v. Pettus, 113 U.S. 116, 128 (1885)(cutting fee award from 10% to 5%). The Eleventh Circuit, however, requires district courts to calculate common-fund fee awards only as a percentage of the fund, mandating that they do so using the 12-factor approach of Johnson v. Georgia Highway Express, 488 F.2d 714 (5th Cir.1974), that this Court has repudiated as too subjective to cabin trial courts’ discretion or even “to permit meaningful judicial review.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551-52 (2010). The questions presented are:

1. Whether district courts may be required to use the inherently subjective and effectively unreviewable Johnson factors to determine common-fund fee awards despite Perdue’s rejection of the Johnson-factors approach.

2. Whether district courts may be required to calculate common-fund attorney’s fees only as a percentage of the fund, or may instead award fees based on the attorney’s lodestar as is permitted by Courts of Appeals other than the Eleventh Circuit and the District of Columbia Circuit.

3. Whether the Court of Appeals may mandate that district courts adopt a 25% “benchmark” for percent-offund attorney’s fee awards.