836.44 Multipliers, “lodestar” enhancement

During the course of their representation of the Complainant in this case, the Complainant’s attorneys were successful in obtaining a Court of Appeals decision clarifying the law on continuing violations. However, LIRC is aware of no authority allowing it to enhance the Complainant’s attorneys’ fee request to reflect success before a higher court. Bowen v. Stroh Die Casting Co. (LIRC, 10/28/11).

The use of an enhancement or multiplier in contingent fee cases is inappropriate under the Wisconsin Fair Employment Act. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

No enhancement for risk is appropriate unless the applicant for fees is able to show that without such a risk adjustment, the Complainant would have faced substantial difficulties in finding counsel in the local or other relevant market. Many courts accept affidavits from other attorneys in the relevant market as sufficient evidence that a plaintiff would have encountered substantial difficulties in obtaining counsel without a risk enhancement. In this case, where the affidavits of two attorneys in the relevant market only state that one was “less likely” to accept civil rights cases without a risk enhancement and the other stated that there are only a handful of attorneys who will take on civil rights cases on a wholly contingent fee basis, the affidavits were deemed insufficient to establish an entitlement to an enhancement for risk of nonpayment. Olson v. Phillips Plating (LIRC, 02/11/92).

A Respondent’s vigorous resistance of the Complainant’s claim is not an appropriate basis for enhancing the lodestar amount. This resistance is already reflected in the number of hours expended and the attorney's hourly rate. Olson v. Phillips Plating (LIRC, 02/11/92).

The results achieved by an attorney generally will be subsumed in other factors used to calculate a reasonable attorney's fee award and normally should not be used as an independent basis for enhancing the lodestar amount. Olson v. Phillips Plating (LIRC, 02/11/92).

Two basic criteria must be met in order to obtain an enhancement of the lodestar amount. The fee applicant must establish that: (1) the rates of compensation in the relevant market for contingent fee cases as a class differ from the rates in non-contingent fee cases, and (2) the Complainant would have faced substantial difficulty in finding counsel without enhancement for risk. Racine Educ. Ass’n v. Racine Unified Sch. Dist. (LIRC, 07/17/89).

An hourly rate of $100 per hour was deemed appropriate in an attorney’s fee award, but the Commission declined to increase the lodestar figure. The quality of representation and the favorable results achieved were already considered in arriving at the lodestar figure, and the financial risk that the Complainant would be unable to pay was counter-balanced by the probability of success in the matter. The Commission declined to increase the lodestar amount because of the Respondent’s vigorous defense of the case, concluding that to do so would be in effect to punish Respondents for exercising their right to defend a case. Wetzel v. Clark County (LIRC, 06/05/87).

A 50 percent multiplier to the amount of the attorney’s fee award was granted because of the novelty and difficulty of the issues involved in the case (whether an applicant for a position as a traffic officer who has uncorrected vision of 20/400 in each eye is a handicapped person) and the results obtained and the quality of the representation. Toonen v. Brown County (LIRC, 10/31/86).

An upward adjustment in the amount of attorney’s fees to compensate for the risk of non-recovery because the case is taken on a contingent fee basis is appropriate. A 20 percent multiplier would be appropriate in this case, particularly because it was taken on a contingent fee basis. Benson v. Bumper & Auto of Milwaukee (LIRC, 02/10/86).

An upward adjustment of the basic fee award by a contingency factor is intended to insure that the fee award is consistent with prevailing market rates and adequate to attract competent counsel to represent other civil rights clients. Watkins v. Milwaukee County(LIRC, 07/03/85).

Where counsel pursued with great skill and persuasiveness, and despite unfavorable case law and the absence of any express statutory provision supporting the claim, a case in which the Complainant ultimately prevailed and established the principle that prevailing Complainants were entitled to an award of attorney’s fees, it was concluded that an enhancement of the basic lodestar attorney’s fee by a factor of 50 percent was appropriate. Watkins v. Milwaukee County (LIRC, 07/03/85).