Edited by Albert A. Foer and Randy M. Stutz
10 Funding litigation K. Craig Wildfang and Stacey P. Slaughter1 § 10.01 § 10.02 § 10.03 § 10.04 § 10.05 Introduction A history of contingent fees in the United States Considerations before funding a contingent fee case E-discovery costs Types of fee arrangements 10.05.1 100 percent contingent agreements 10.05.2 Incentive-based fee arrangement 10.05.3 The “billable hour” 10.05.4 Task-based and flat fee arrangements 10.05.5 Mixed arrangements 10.05.6 Attorney investment 10.05.6(a) The Agent Orange example 10.05.6(b) Ethical considerations of attorney-investors 10.05.7 Other investors § 10.06 Court factors in awarding attorneys’ fees 10.06.1 The percentage method 10.06.2 The “lodestar” method 10.06.3 Combined method 10.06.4 The Goldberger factors § 10.07 Recovery awarded as attorneys’ fees in antitrust cases 10.07.1 Recoveries exceeding $500 million 10.07.2 Recoveries between $100 million and $500 million 10.07.3 Recoveries less than $100 million 10.07.4 Tax implications § 10.08 Conclusion § 10.01 Introduction Private litigation in the United States is financed through a variety of attorney fee arrangements, including contingency fees, hourly fees, and alternative billing arrangements. Behind the scenes, these agreements between attorneys and clients are the lifeblood of private claims, as all such claims require adequate funding at each stage of 1 K. Craig Wildfang is a partner at the law firm of Robins, Kaplan, Miller & Ciresi L.L.P. in their Minneapolis, Minnesota office. Before joining the firm’s antitrust practice, Mr. Wildfang served as Special Counsel to the Assistant Attorney General for Antitrust, United States Department of Justice in Washington, D.C. from 1993 to 1996. Stacey P. Slaughter is also a partner at the law firm of...
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