Edited by Sean Griffith, Jessica Erickson, David H. Webber and Verity Winship
Chapter 18: The mimic-the-market method of regulating common fund fee awards: a status report on securities fraud class actions
This chapter tracks the growth and development of the mimic-the-market approach in setting attorneys’ fees in securities class actions. This approach calls for judges to assess what the market would have paid for the lawyer’s services, rather than the more traditional lodestar calculation. An idea that the author himself advocated early on, the mimic-the-market approach to setting fees has gained traction in many jurisdictions across the United States, notably in the Second, Third, and Seventh Circuit Courts of Appeal, and in several district courts. The author points out that following the mimic-the-market approach requires a measure of judicial courage, because it sometimes results in the award of very large fees. The author also revisits his own prediction that judges would begin to set fees at the outset of cases, and discusses why he believes that prediction has not been realized.
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