Recovery of the Cost of Suit, Including a Reasonable Attorney's Fee (From Techniques in the Investigation and Prosecution of Organized Crime Materials on RICO, P 574-606, 1980, G. Robert Blakey, ed. - See NCJ-78839)

• NCJ Number: 78855
• Author(s): J Murphy
• Date Published: 1980
• Length: 33 pages
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: Available in microfiche from NCJRS as NCJ-78839.

Annotation

Recovery of the cost of suit, including a reasonable attorney's fee, is examined as stated in the Clayton Act antitrust legislation and the Racketeer Influenced and Corrupt Organizations Act (RICO).

Abstract

U.S. Code section 1964(c) and section 4 of the Clayton Act both provide for the recovery of the cost of suit, including a reasonable attorney's fee, in a private treble-damage action under RICO and the antitrust laws, respectively. It is probable that section 1964(c) will be interpreted in a manner similar to section 4. Both have the common purpose of encouraging private litigation through insulating the treble-damage award from expenditures for legal fees. Under section 4, the attorney's fee award accrues to the plaintiff and not to the attorney. This award must be incident to a successful prosecution for the recovery of damages. Antitrust claims that result in settlement do not come under section 4. Attorney's fees may be recovered, however, under the equitable fund doctrine in these cases. Recovery is also allowed for services rendered on appeal. No recovery, however, is allowed for successfully defending antitrust claims or counterclaims. The amount awarded is within the discretion of the trial court reasonably exercised. Several factors are usually considered in determining a reasonable fee. These include the groups of factors listed in Noerr Motor and DR 2-106, as well as several individual factors. Recently, however, the trend has been to start with the number of hours spent, determine a reasonable hourly rate, and then adjust that figure to reflect the contingent nature of success and the quality of the attorney's work. The trial court will generally fix the amount awarded at an evidentiary hearing. The plaintiff may challenge that award on appeal. The 'cost of suit' is generally interpreted as those costs normally allowed under 28 U.S.C. section 1920 and Rule 54(d). The trial court has discretion in this area also. A total of 158 footnotes are listed. For additional material on RICO, see NCJ 78839. (Author summary modified)