                                                                  NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1486
                                     _____________

                                 DEBORAH DUNGEE,
                   on behalf of herself and all others similarly situated

                                             v.

                    DAVISON DESIGN & DEVELOPMENT INC,
                         f/k/a Davison & Associates Inc.,

                         Davison Design & Development, Inc.,
                                                                  Appellant
                                     _____________

      On Appeal from the United States District Court for the District of Delaware
                              (D.C. No. 1-10-cv-00325)
                    District Judge: Honorable Gregory M. Sleet
                                 ______________

                               Argued: November 8, 2016

     Before: MCKEE, RESTREPO, Circuit Judges. and HORNAK,* District Judge

                                 (Filed: January 6, 2017)
                                     _____________




      *
         Honorable Mark R. Hornak, District Judge for the United States District Court
for the Western District of Pennsylvania, sitting by designation.
RICHARD H. CROSS, JR. [Argued]
Cross & Simon
1105 North Market Street, Suite 901
P.O. Box 1380
Wilmington, DE 19899-1380
      Counsel for Appellees

J. NICHOLAS RANJAN [Argued]
H. WOODRUFF TURNER
DAVID M. ACETO
JAMES P. ANGELO
K&L Gates LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222

KATHLEEN F. MCDONOUGH
JOHN A SENSING
Potter Anderson & Corroon
1313 North Market Street
6th Floor
Wilmington, DE 19801
       Counsel for Appellant

                                     ______________

                                       OPINION**
                                     ______________


RESTREPO, Circuit Judge.

       In this class action, the parties reached a settlement that did not resolve attorneys’

fees. After the parties briefed and argued the attorneys’ fees issues before the District

Court, the Court awarded over $1 million in fees to class counsel, which was more than

four times the lodestar calculation. Because the District Court did not provide any

       **
         This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

                                              2
findings to support this enhanced award, we will vacate and remand.

                                             I

       Named Plaintiff Deborah Dungee filed this class action on behalf of herself and

certain other individuals who had entered into contracts with Defendant Davison Design

& Development, Inc. for invention promotion services. Dungee’s suit included class

claims against Davison for violations of the American Inventors Protection Act of 1999

(“AIPA”) and for breach of contract. A fee-shifting provision within the AIPA allows

customers who are deemed injured under the statute to recover “reasonable costs and

attorneys’ fees.” 35 U.S.C. § 297(b)(1).

       After the District Court denied Davison’s motion to dismiss Dungee’s original

complaint, the parties mediated the case and reached a settlement agreement. Although

the parties agreed that Davison would pay class counsel’s fees, they could not agree on

the proper amount, so Dungee submitted a motion for attorneys’ fees to the District

Court. Dungee sought $2 million in fees under a percentage-of-recovery calculation.

Davison argued in response that the lodestar calculation method1 was more appropriate

under the circumstances; the parties agreed that the base lodestar calculation amounted to

$257,226.76. The District Court held a class action settlement fairness hearing on July

30, 2015, during which the parties argued the attorneys’ fees issues.

       On February 16, 2016, the District Court issued an order granting $1,118,936.40

in attorneys’ fees to Dungee’s counsel. The District Court reached this figure by

       1
        The lodestar is calculated by multiplying the number of hours an attorney
reasonably worked on a case by that attorney’s reasonable hourly billing rate. In re Rite
Aid Corp. Sec. Litig., 396 F.3d 294, 305 (3d Cir. 2005), as amended (Feb. 25, 2005).
                                             3
applying a 4.35 multiplier to enhance the base lodestar calculation. The District Court

explained its methodology in one paragraph within a footnote:

       Applying the lodestar method, the court first notes that based upon
       the class attorneys’ hourly rates, the fees amount to $257,226.76.
       While Davison argues that no multiplier should be used because this
       is a “tag-along case,” this ignores the substantial case law that
       applies multipliers. . . . Dungee asserts that the Third Circuit
       typically applies multipliers up to 15.6 with an average of 4.35. . . .;
       Bradburn Parent Teacher Store, Inc. v. 3M, 513 F. Supp. 2d 322,
       341 (E.D. Pa. 2007).              Following Dungee’s alternative
       recommendation, the court will adopt the average multiplier within
       the Third Circuit of 4.35 and impose a fee of $1,118,936.40.

JA5a. On February 24, 2016, the District Court entered an order approving the

final settlement between the parties, which included the $1.1 million attorneys’

fees award. Davison timely appealed the District Court’s attorneys’ fees decision

to this Court.

                                             II2

                                             A

       “There are two primary methods for calculating attorneys’ fees” awards in the

class action context: (1) the percentage-of-recovery method; and (2) the lodestar method.


       2
         The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
        “We review the District Court’s award of attorneys’ fees for abuse of discretion,
‘which can occur if the judge fails to apply the proper legal standard or to follow proper
procedures in making the determination, or bases an award upon findings of fact that are
clearly erroneous.’” Rite Aid, 396 F.3d at 299 (quoting In re Cendant Corp. PRIDES
Litig., 243 F.3d 722, 727 (3d Cir. 2001)). “The standards employed calculating
attorneys’ fees awards are legal questions subject to plenary review, but ‘[t]he amount of
a fee award . . . is within the district court’s discretion so long as it employs correct
standards and procedures and makes findings of fact not clearly erroneous.’” Id. (quoting
Pub. Int. Research Grp. of N.J., Inc. v. Windall, 51 F.3d 1179, 1184 (3d Cir. 1995)).
                                             4
Cendant Corp., 243 F.3d at 732 (footnote omitted). As the District Court noted here,

“[t]he percentage-of-recovery method is generally favored in cases involving a common

fund,” id. (quoting In re Prudential Ins. Co. Am. Sales Practice Litig. Agent Actions, 148

F.3d 283, 333 (3d Cir. 1998)), whereas the lodestar method may be more appropriate

where the nature of the settlement does not allow the court to determine the value of the

settlement, or where there is a statutory fee-shifting provision, Prudential, 148 F.3d at

333.

       A district court has discretion to determine which type of case the settlement most

closely resembles and which calculation method to apply. In re Gen. Motors Corp. Pick-

Up Truck Fuel Tank Prod. Liab. Litig., 55 F.3d 768, 821 (3d Cir. 1995). Here, the

District Court chose the lodestar method, reasoning that “the nature of the settlement

ma[de] it difficult to make a precise calculation using the percentage of recovery

method.” JA5a. Indeed, there was no established “common fund” from which a simple

percentage could be taken, and the ultimate value of the settlement depended upon the

number of claims made by former customers for cash and service vouchers.

Accordingly, we see no error in the District Court’s application of the lodestar method in

this context. For the reasons discussed below, however, we must nevertheless vacate the

fee award and remand the case to the District Court.

                                              B

       When a court applies the lodestar method to award fees in a class action case that

involves a fee-shifting statute, there is “a ‘strong presumption’ that the lodestar represents

the ‘reasonable’ fee,” for class counsel’s work. City of Burlington v. Dague, 505 U.S.

                                              5
557, 562 (1992) (quoting Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,

478 U.S. 546, 565 (1986)). Any “upward adjustments of the lodestar figure are . . .

permissible . . . only in certain ‘rare’ and ‘exceptional’” circumstances, Del. Valley, 478

U.S. at 565, typically involving “superior attorney performance,” Perdue v. Kenny A. ex

rel. Winn, 559 U.S. 542, 554 (2010); see also William B. Rubenstein, Newberg on Class

Actions § 15:50 (5th ed. 2011). These circumstances include: (1) “where the method

used in determining the hourly rate employed in the lodestar calculation does not

adequately measure the attorney’s true market value”; (2) “if the attorney’s performance

includes an extraordinary outlay of expenses and the litigation is exceptionally

protracted”; or (3) where there was an “exceptional delay in the payment of fees . . . .

particularly where the delay is unjustifiably caused by the defense.” Perdue, 559 U.S. at

554-56. If presented with a “rare” and “exceptional” case, a district court must tailor the

method of enhancing the lodestar to that specific case. See id. For instance, if an

attorney’s hourly rate is “determined by a formula that takes into account only a single

factor (such as years since admission to the bar),” the district court may adjust the hourly

rate “in accordance with specific proof linking the attorney’s ability to a prevailing

market rate.” Id. at 555.

       The party requesting an enhancement to the lodestar carries the burden to show

that a multiplier is necessary to reach a fair and reasonable fee award. Id. at 553; City of

Burlington, 505 U.S. at 562. That party must produce “specific evidence on the record”

supporting the enhancement. Del. Valley, 478 U.S. at 565 (internal quotation marks and

citation omitted). Further, to ensure that the calculation “is objective and capable of

                                              6
being reviewed on appeal,” a district court must provide detailed findings justifying any

enhancement to the lodestar. Perdue, 559 U.S. at 553, 557-59.

       Here, the District Court offered no explanation for why the simple lodestar

calculation would not adequately compensate class counsel, or why this case presented

“rare” and “exceptional” circumstances needed to enhance the lodestar. We see nothing

in the record to suggest that class counsel provided the District Court the “specific

evidence” required to justify the enhancement.3 Rather, it appears that the District Court

simply adopted Dungee’s recommended 4.35 multiplier, understanding it to be the

“average” multiplier used in the Third Circuit. 4 In the absence of specific evidence from

class counsel and detailed findings by the District Court justifying the use of any lodestar

multiplier, let alone a multiplier of 4.35, we must vacate the $1,118,936.40 award and

remand the case to the District Court. On remand, the District Court should reassess




       3
         Significantly, Dungee did not argue, either in her briefing or at oral argument
before this Court, that the District Court’s use of a 4.35 multiplier was defensible.
Dungee maintained instead that the overall award of approximately $1 million in fees
was reasonable, in light of the total possible settlement amount.
       4
          We note that the District Court cited to only Bradburn Parent Teacher Store, Inc.
v. 3M, 513 F. Supp. 2d 322, 341 (E.D. Pa. 2007), in support of its use of a multiplier in
this case. In Bradburn, a district court discussed multipliers in the context of performing
a lodestar “cross-check” against a percentage-of-recovery award request; that court was
not considering a request to enhance a fee award calculated under the lodestar method in
the first instance. Id. In any event, the court cited 4.35 as the average multiplier
approved by courts in common fund class actions between 2001 and 2003. See id. (citing
In re Linerboard Antitrust Litig., 2004 WL 1221350, at *16 (E.D. Pa. June 2, 2004)).
That figure is irrelevant to this case.


                                             7
whether an enhancement to the lodestar calculation is appropriate in this case and, if so, it

should provide factual findings supporting any multiplier used.

                                             III

       For the reasons set forth above, we will vacate the District Court’s order granting

$1,118.936.40 in attorneys’ fees, and the District Court’s order approving final settlement

of this class action, insofar as the final settlement incorporated the $1,118.936.40 fee

award, and we will remand this case for further proceedings consistent with this opinion.




                                              8
