Court Rejected Applying U.S. Supreme Court’s Perdue v. Kenny A. To Consumer-Fee Shifting Situations.
In Walker v. Giuffre, 209 N.J. 124 (2012), the New Jersey Supreme Court consolidated two cases —Walker (where a multiplier was rejected under New Jersey’s fee-shifting Consumer Fraud Act) and Humphries v. Power Mill Shopping Plaza (considering whether a multiplier was justified under the New Jersey Law Against Discrimination)–to consider whether the U.S. Supreme Court’s restrictive anti-enhancement language in Perdue v. Kenny A., 599 U.S. __, 130 S.Ct. 1662 (2010) (occurring in a federal civil rights context) should apply to fee awards under the two New Jersey fee-shifting statutes.
The Walker court answered “no,” determining that nothing in Perdue caused this state supreme court to vary from its pro-contingency enhancement approach in state fee-shifting statutory contexts. New Jersey, in Rendline v. Pantzer, 141 N.J. 292 (1995), endorsed an “ordinary range” of 5-50% and a “typical range” of 20-35% for contingency enhancements. In Humphries, the 50% enhancement approved by the lower court was justified, although it too is not a cap. Rendine itself allowed up to a 100% enhancement.
California Response to Perdue–California intermediate appellate courts, also, have followed Ketchum enhancement principles enunciated by the California Supreme Court. Although right now expressed in unpublished decisions, intermediate appellate courts have not found Perdue persuasive in handcuffing multiplier analysis under state supreme court authority. (See, e.g., Khazan v. Braynin, Case No. A128536 (1st Dist., Div. 4 Sept. 12, 2012) (unpublished) [California law different from Perdue, not disfavoring enhancements]; Henderson v. Carter, No. B243220 (2d Dist., Div. 5 Sept. 11, 2013) (unpublished) [rejecting Perdue’s reasoning of disallowing multipliers against losing local governments in state civil rights cases]; Good Nite Inn Mgt., Inc. v. Ahmed, Case No. A129488 (1st Dist., Div. 2 June 29, 2011) (unpublished) [Perdue not relied on; upward/downward adjustments from lodestars far more common under California law than federal law].
HAT TIP–For more on the Walker decision, see New Jersey attorney Bruce D. Greenberg’s January 5, 2012 post on New Jersey Appellate Law Blog, which looks to be a good informational source for New Jersey practitioners wanting to stay up to date on appellate decisions issued by this state’s judiciary.