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New Jersey Supreme Court Affirms Contingency Fee Enhancements for New Jersey Discrimination Lawyers

The New Jersey Supreme Court has affirmed that the framework for evaluating attorneys’ fee awards made pursuant to state statutory fee-shifting provisions such as the New Jersey Law Against Discrimination that was first adopted in the case Rendine v. Pantzer, 141 N.J. 292 1995. The Court held that the Rendine decision permitting attorney fee enhancements remains valid and has not been altered by the United States Supreme Court’s decision in Perdue v. Kenny, 130 S. Ct. 1662 (2010). In Perdue, the United States Supreme Court confirmed that contingency fee enhancements are not permitted in federal fee-shifting cases. As a result of the Perdue decision, the New Jersey Supreme Court granted certification in the cases Walker v. Guiffre (A-72-10) (a consumer fraud case) and Humphries v. Powder Mill Shopping Plaza (A-100-10) and consolidated their decision of these cases into one opinion.

In Humphries, the plaintiff alleged that the defendant shopping center, Powder Mill Shopping Plaza, violated the accessibility requirements in the American with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189 and the New Jersey Law Against Discrimination (LAD)[LINK]. The plaintiff, Ms. Humphries, is handicapped as a result of suffering from a spinal cord injury in 1973. Ms. Humphries handicap requires her to use a motorized wheelchair and specialized van. In the Spring of 2005, Ms. Humphries was unable use her wheelchair in order to get into a restaurant at the Powder Mill Shopping Plaza because the ramp up to the sidewalk was too steep. Ms. Humphries was only able to gain access to the restaurant after her brother set up a portable ramp for her. Once inside the restaurant, Ms. Humphries complained to the owner regarding the unsafe ramp.

Thereafter, Ms. Humphries reached out to a New Jersey Discrimination Attorney named Ed Kopelson, who then wrote letters to the defendants regarding their non-compliance to ADA and New Jersey Law Against Discrimination applicable codes for accessibility for handicaps. After not being able to resolve the dispute, Ms. Humphries filed a lawsuit. Prior to trial, the parties stipulated that the defendants did not comply with applicable accessibility requirements of the ADA and New Jersey Law Against Discrimination, that defendants would pay Mr. Humphries $2,500 and that the amount of Plaintiff’s attorney fees’ would be decided by the trial court.

The trial court considered the overall lodestar fee for plaintiff’s attorney in accordance with the Rendine factors. Plaintiff’s attorney requested that a contingency enhancement of fifty percent be provided to him by arguing that it was a difficult and limited case and that if the plaintiff would not have prevailed, she would not have been able to pay her attorney anything at all. The trial court denied Plaintiff’s attorney’s request and awarded him only a twenty percent enhancement. The Appellate Division reversed and awarded Plaintiff’s attorney the full fifty percent fee enhancement that plaintiff’s discrimination attorney had requested to the trial court.

In affirming the Appellate Division’s decision, the New Jersey Supreme Court held that the Rendine guidelines for contingency enhancements remain in full force and effect and are not affected by the Perdue decision. The New Jersey Supreme Court stated that higher contingency fee enhancements are appropriate when there is no mechanism for the mitigation of the risk of non-payment, no possibility of payment absent an award of fees, and in cases in which the relief sought is primarily not monetary but equitable in nature. The New Jersey Supreme Court also reminded litigants the importance of New Jersey discrimination lawyers being able to take on contingency cases and the purpose of why New Jersey discrimination laws provide for the award to attorney fees when the plaintiff prevails in these lawsuits. The Court said that fee-shifting statutes are designed to address the problem of unequal access to the courts, are intended to provide the individuals, whose rights are being protected by the statutes, with resources to enforce those rights in court and that they operate so as to encourage adequate representation which is essential to ensure that those laws will be enforced.

This important decision reminds us the vital role that New Jersey employment lawyers have in fighting for the rights of New Jersey citizens who are handicapped in accordance with New Jersey anti-discrimination laws.