                               PUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                              No. 13-2399


ANDREA GAIL JONES,

               Plaintiff - Appellee,

          v.

SOUTHPEAK INTERACTIVE CORPORATION      OF   DELAWARE;   TERRY   M.
PHILLIPS; MELANIE J. MROZ,

               Defendants – Appellants.

---------------------------

THOMAS E. PEREZ, Secretary of the United States Department
of Labor,

               Amicus Supporting Appellee.



                              No. 14-1765


ANDREA GAIL JONES,

               Plaintiff - Appellee,

          v.

SOUTHPEAK INTERACTIVE CORPORATION      OF   DELAWARE;   TERRY   M.
PHILLIPS; MELANIE J. MROZ,

               Defendants - Appellants.
Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.      Robert E. Payne, Senior
District Judge. (3:12-cv-00443-REP-DJN)


Argued:   December 10, 2014           Decided:   January 26, 2015


Before TRAXLER, Chief Judge, and KEENAN and THACKER, Circuit
Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Chief Judge Traxler and Judge Keenan joined.


ARGUED: Kevin D. Holden, JACKSON LEWIS PC, Richmond, Virginia,
for Appellants.    James B. Thorsen, MARCHANT, THORSEN, HONEY,
BALDWIN & MEYER, LLP, Richmond, Virginia, for Appellee. Mary J.
Rieser, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for
Amicus Curiae. ON BRIEF: M. Patricia Smith, Solicitor of Labor,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Jennifer
S. Brand, Associate Solicitor, William C. Lesser, Deputy
Associate   Solicitor,    Megan   E.   Guenther,    Counsel  for
Whistleblower Programs, Office of the Solicitor, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae.




                               2
THACKER, Circuit Judge:

                The Sarbanes-Oxley Act of 2002 makes it illegal for

publicly       traded    companies      to    retaliate         against   employees      who

report potentially unlawful conduct.                      See 18 U.S.C. § 1514A(a).

In     this     case,    a   video    game        publishing        company,     SouthPeak

Interactive        Corp.     (“SouthPeak”), 1           fired    its   chief     financial

officer after she raised concerns about a misstatement on one of

the     company’s        filings     with         the     Securities      and     Exchange

Commission (“SEC”).            A jury found that the company and two of

its    top      officers     violated      the      Sarbanes-Oxley        Act,    and    the

district court awarded the chief financial officer more than

half       a   million   dollars     in      back       pay   and   emotional     distress

damages.

                The ensuing appeal raises a number of questions about

employees’        rights     under   the      Sarbanes-Oxley           Act.      The    case

requires us to consider such issues as when a whistleblower may

file suit, what she needs to do to exhaust her administrative

remedies, and what types of remedies are available under the

statute.         We affirm the district court’s rulings on each of

these issues.            In doing so, we hold that Sarbanes-Oxley Act


       1
       In May 2008, a publicly traded acquisition company named
Global Services Partners Acquisition Corp. (“GSPAC”) acquired
all of the outstanding membership interests of SouthPeak. GSPAC
adopted SouthPeak’s name as its own.



                                              3
retaliatory       discharge      claims     are     subject     to    the    four-year

statute of limitations under 28 U.S.C. § 1658(a), and not the

two-year    limitations         period    set     forth    in   § 1658(b)(1).        We

further    hold     that   the    administrative          complaint    in   this   case

satisfies     the     exhaustion         requirement,        and     that    emotional

distress damages are available under the statute.

            The case also requires us to address the handling of

apparent inconsistencies in a jury verdict and the steps a court

must take in calculating attorneys’ fees.                   On these issues, too,

we affirm the district court.

                                           I.

            SouthPeak      is    a   Virginia-based        company    that   designs,

develops,    and    distributes         video   games     for   PlayStation,       Xbox,

Wii, and other gaming systems.                 In June 2007, the company hired

Andrea Gail Jones (“Appellee”) to work as an accountant.                             It

later promoted Appellee to chief financial officer.

                                           A.

            In February 2009, SouthPeak sought to place an order

with Nintendo for 50,400 units of a video game called My Baby

Girl.       SouthPeak’s         chief    executive        officer,     Melanie     Mroz

(“Mroz”), and its chairman, Terry Phillips (“Phillips”), hoped

to place the order “as soon as possible,” but the company lacked




                                           4
the funds it would need to pay Nintendo in advance.                         J.A. 332. 2

To avoid delay, Phillips directed his assistant to send Nintendo

a wire transfer of $307,400 from Phillips’s personal account.

However, the company did not properly record this debt on its

balance sheet or in its quarterly financial report, which was

filed with the SEC on May 15, 2009.

               When informed of the omission, Appellee became “very

concerned.”       J.A. 1178.        She asked Phillips for an explanation.

His response, she said, “did not seem, I guess, to make sense or

seem       credible   to    me.”    Id.    at   1226.        About    a    week   later,

Appellee called the chairman of SouthPeak’s audit committee to

report her suspicion that the company was engaging in a fraud.

               On August 3, 2009, SouthPeak’s outside counsel asked

Appellee to review and approve draft language for an amendment

to   the     company’s      erroneous     quarterly        report.        The   proposed

amendment denied any intentional fraud or misstatement in the

earlier filing.            Appellee refused to sign the amended report.

In   an      August   13,    2009   letter      to   the    outside       counsel,   she

explained, “I do not know how a conclusion of no intentional


       2
       This case involves two sets of appeals, each with its own
case number and joint appendix. Though we consolidated the two
appeals (previously labeled 13-2399 and 14-1765) in September
2014, the joint appendices have not been merged. Here, we quote
only from the joint appendix associated with Case No. 13-2399.
All citations to the “J.A.” refer to this joint appendix.



                                           5
wrongdoing or fraud can be reached.”                  J.A. 1274.   That same day,

SouthPeak’s six-member board of directors held a special meeting

in   which   it   voted    to    terminate      Appellee’s     employment.      Mroz

notified Appellee of the board’s decision the next day.

                                          B.

             Appellee, through counsel, filed a complaint with the

Occupational      Safety        and   Health     Administration      (“OSHA”)     on

October 5, 2009.      The complaint states, “On August 14, 2009, in

a clear violation of the [Securities Exchange] Act, SouthPeak

terminated Jones’ employment, apparently in retaliation for Ms.

Jones [sic] attempts to correct statements in periodic reports

filed, and proposed to be filed, by SouthPeak . . . .”                          J.A.

643.    In the second numbered paragraph, the complaint further

provides:

             The names and addresses of the company(s)
             and person(s) who are alleged to have
             violated the Act (who the complaint is being
             filed against):

             SouthPeak Interactive Corporation
             2900 Polo Parkway.
             Midlothian, VA 23113
             804-378-5100

             Terry Phillips, Chairman of the Board
             Patrice Strachan, [VP] of Operations
             Melanie Mroz, Chief Executive Officer

Id. at 645.

             On   October   16,       2009,    OSHA    sent   SouthPeak   a   letter

notifying the company of Appellee’s complaint, along with a copy

                                          6
of the complaint itself.                   The letter was addressed exclusively

to SouthPeak, without any reference to Mroz or Phillips.

                 More than 180 days passed without a final order from

OSHA;       consequently,          on    July   23,      2010,   Appellee    sent       OSHA   a

letter       explaining       that       she    was     electing    to    file    a    federal

lawsuit          pursuant     to    the     Sarbanes-Oxley          Act   and     29    C.F.R.

§ 1980.114(b).              See     18     U.S.C.       § 1514A(b)(1)(B)        (authorizing

suits at law or equity in federal court if the Secretary of

Labor “has not issued a final decision within 180 days of the

filing of [an OSHA] complaint”).                         Appellee sent a copy of the

letter       to     a    lawyer         identified       as   “Counsel      for    SouthPeak

Interactive Corp.”            She did not send a copy to Mroz or Phillips.

                                                C.

                 Appellee waited nearly two years to file suit.                            Her

June       18,    2012     complaint       named       SouthPeak,   Mroz,    and       Phillips

(collectively, “Appellants”) as defendants.                          The claims included

one count of retaliation pursuant to the Sarbanes-Oxley Act, 18

U.S.C. § 1514A, and one count of retaliation pursuant to the

Dodd-Frank          Wall     Street       Reform       and    Consumer    Protection        Act

(“Dodd-Frank”), 15 U.S.C. § 78u-6(h)(1)(A). 3                         The district court

granted Appellants’ motion to dismiss the Dodd-Frank claims on


       3
       The complaint also included a breach-of-contract claim,
but Appellee withdrew this claim prior to trial.



                                                   7
retroactivity grounds.                The court, however, denied Appellants’

motion    to       dismiss      the     Sarbanes-Oxley            Act     claims,    rejecting

Appellants’         arguments     that     the       statute      of     limitations     barred

those     claims          and    that     Appellee          failed        to     exhaust      her

administrative remedies.

               A     jury    trial      began        on    July     15,    2013.        At    the

conclusion of the trial, the jury was provided a verdict form

naming each of the three defendants.                           The form addressed each

defendant separately.             If the jury found a defendant liable, it

could place a check mark next to a statement to that effect.

The     form       also   provided       blank       spaces       for     any    back   pay    or

compensatory         damages     the     jury    wished        to   assess       against      that

defendant.

               The    jury      returned    a        verdict      (the     “First    Verdict”)

finding each of the three defendants was liable.                                With regard to

SouthPeak, the jury assessed $593,000 in back pay and $357,000

in compensatory damages.                 However, the jury did not assess any

damages against Mroz or Phillips.                         In a sidebar conference with

counsel, the court expressed some confusion over whether the

jury might be “trying to account for no duplication of damages.

And I think I need to ask them if that’s what they’re doing or

if they think that there were no damages caused.”                                   J.A. 1935.

Turning to the jury, the court advised:



                                                 8
                    Ladies and gentlemen, I notice that in
               one place you articulate a sum to be
               assessed as damages for compensatory and
               backpay.   In two other places, you find the
               respective defendants liable but express no
               damage figure at all.    It is unclear to us
               whether you are finding that that particular
               defendant caused no damage or you are simply
               trying to avoid awarding more than you
               awarded, more damage than you found that Ms.
               Jones had suffered. . . .

                     . . .

                    So I’m going to let you go back and
               take your verdict form, and if you mean it,
               with those instructions, you can return it,
               or you can amend it, or you can do such
               else, or send a question, or do whatever you
               need to do.

Id. at 1936-37.

               Before the jury could return to the jury room, the

court    agreed      to   a    second      sidebar    conference      with    counsel.

During this discussion, Appellants’ attorney told the court, “I

just    want    to   make     sure   the    jury     doesn’t   take   it     from   your

instruction that they can go back and change it to have damage

against    each      of   them. . . .        I   thought   that    maybe      you   were

suggesting that that’s what they were supposed to do.”                              J.A.

1937.     To address this concern, the court clarified its previous

instruction, telling the jurors:

               I am not by giving you this instruction
               trying to do anything but clear up what
               appears to be a problem.   I am not telling
               you what you have to do, nor suggesting that
               you need to put a damage figure in either of
               those places where you have a zero, but we

                                             9
              need to make sure we have a verdict that we
              know what you are doing.

Id. at 1938.

            Following a brief discussion in the jury room, the

jury passed the court a note stating: “From SouthPeak we want a

total of 593,000 back pay [and] 357,000 compensatory.                     We do not

find   that    Terry   Phillips     or     Melanie        Mroz   are    individually

responsible for any amount.”          J.A. 2052 (alteration in original)

(internal     quotation     marks   omitted).             Conferring    again   with

counsel, the court said, “[I]t seems to me if that’s what they

want to do, they need to make another finding on their verdict

form. . . .      [T]hey need to check the one that says you’re not

liable.”      Id. at 1939.     The attorneys for both sides said they

agreed.

            When the jury returned, the foreperson confirmed that

Mroz and Phillips were not individually responsible.                     “Then what

you need to do,” the court said, “is eliminate the checkmarks

[indicating     liability    for    Mroz      and   Phillips]     and    initial    it

there, and then we will have the verdict.”                       J.A. 1941.        The

court asked the foreperson, “Do you need to retire or can you do

it here?”      Id.   The foreperson said she did not need to retire,

“but evidently someone else does.”                  Id.    With that, the court

permitted the jury to return once more to the jury room.




                                         10
             When, at last, the court session resumed, the jury

returned another verdict (the “Final Verdict”) in which it again

found all three defendants liable.               This time, the assessment

against     SouthPeak   comprised       $593,000     in    back    pay     and   no

compensatory damages.         The assessments against Mroz and Phillips

were for $178,500 apiece in compensatory damages.                  In a sidebar

conference, Appellants’ attorney asked the court to “instruct

that they go back and reconsider because it is impossible to

come up with that verdict. . . .              Clearly, there is something

wrong with the way they understand this case because it doesn’t

stand to reason, and the evidence wouldn’t support a verdict of

that nature.”        J.A. 1947-48.          The attorney then requested a

mistrial.      The   court    denied   the    request.      When    the    sidebar

conference    ended,    the    clerk    polled     the    jury;    every    member

affirmed the Final Verdict.

                                       D.

             Appellants moved for a new trial, remittitur, or an

amended judgment pursuant to Rules 59 and 60 of the Federal

Rules of Civil Procedure.         They argued, among other things, that

the back pay award was not supported by the evidence, and that

the compensatory damages assessed against Mroz and Phillips were

excessive.     Appellants also argued that the court should have

accepted the First Verdict.            On October 29, 2013, the district

court denied most of Appellants’ requests.                The court, however,

                                       11
reclassified     the    assessment   against    SouthPeak,     holding   the

company responsible for $470,000 in back pay and $123,000 in

compensatory damages.       The court also granted SouthPeak’s motion

for a new trial nisi remittitur with regard to the compensatory

damages awards against Mroz and Phillips, giving Appellee an

opportunity to accept a reduced award of $50,000 apiece from

those two defendants.      Appellee accepted the reduced award.

           On December 20, 2013, Appellee petitioned the court

for an order holding Appellants jointly and severally liable for

$406,851   in   attorneys’   fees.        Ultimately,   the   court   awarded

$354,127.05 in attorneys’ fees.            As requested, the court held

Appellants jointly and severally liable for the sum.

                                     II.

                                     A.

                          Statute of Limitations

           We   first    consider    Appellants’    contention    that   the

statute of limitations bars this action.           This is a legal issue,

which we review de novo.       See Sewell Coal Co. v. Dir., Office of

Workers’ Comp. Programs, 523 F.3d 257, 259 (4th Cir. 2008).

           Appellee filed suit on June 18, 2012, a little less

than three years after her termination.          The district court held

that the Sarbanes-Oxley Act claims were timely because the suit

commenced within the four-year time limit set forth in 28 U.S.C.

§ 1658(a).      However, Appellants argue that § 1658(a) does not

                                     12
apply to these claims.           Rather, they say, Appellee’s action is

subject     to     the   two-year        limitations     period      set    forth      in

§ 1658(b) because the retaliatory discharge claims “involve[] a

claim     of       fraud . . . in         contravention       of     a      regulatory

requirement        concerning      the     securities       laws.”         28     U.S.C.

§ 1658(b).

            Section 1658(a) supplies a “catchall,” or “fallback,”

statute     of     limitations      for     certain      federal     statutes        that

“create[]      a    cause   of   action      but    [are]    silent        as   to    the

applicable limitations period.”                  H.R. Rep. No. 101-734, at 24

(1990); see Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369,

371 (2004).        The default provision states:

            Except as otherwise provided by law, a civil
            action arising under an Act of Congress
            enacted after the date of the enactment of
            this section may not be commenced later than
            4 years after the cause of action accrues.

28 U.S.C. § 1658(a).         This provision was on the books for more

than a decade before Congress amended Section 1658 as part of

the     Sarbanes-Oxley      Act.          With    this    legislation,          Congress

retained the default provision but added a new subsection, (b),

which provides:

            Notwithstanding subsection (a), a private
            right of action that involves a claim of
            fraud, deceit, manipulation, or contrivance
            in contravention of a regulatory requirement
            concerning the securities laws, as defined
            in   section  3(a)(47)  of   the  Securities
            Exchange Act of 1934 (15 U.S.C. 78c(a)(47)),

                                           13
               may be brought not later than the earlier
               of--

                    (1) 2 years after the discovery of the
               facts constituting the violation; or

                      (2) 5 years after such violation.

Id. § 1658(b).

               Courts      have    not     hesitated         to   apply     § 1658(b)         to

securities       fraud     claims        brought     under      section     10(b)      of   the

Securities Exchange Act, 15 U.S.C. § 78j(b).                            See In re Exxon

Mobil    Corp.      Sec.    Litig.,       500    F.3d      189,   196     (3d    Cir.     2007)

(“Indeed, the implied cause of action recognized under § 10(b)

is    widely    known      and    referred      to    as    ‘securities         fraud.’       To

conclude that § 1658(b) does not apply to § 10(b) claims would

be absurd.” (citation omitted)).                     It is easy to see why this is

so.      Congress confined § 1658(b)’s reach to causes of action

involving       a     claim       of      “fraud,       deceit,      manipulation,            or

contrivance      in     contravention        of”      securities     regulations.             28

U.S.C.    § 1658(b).              This    language,        as     several       courts      have

previously noted, closely tracks the language of section 10(b)

of the Securities Exchange Act, “which creates liability for

‘any person’ who ‘employ[s] . . . any manipulative or deceptive

device or contrivance in contravention of’ SEC regulations.”                                  In

re Global Crossing, Ltd. Sec. Litig., 313 F. Supp. 2d 189, 197

(S.D.N.Y.      2003)     (alterations        in      original)     (quoting       15     U.S.C.

§ 78j(b)); see In re Exxon Mobil, 500 F.3d at 196.

                                                14
           Typically,    a   section 10(b)        securities     fraud     action

requires a plaintiff to “prove six elements: ‘(1) a material

misrepresentation or omission by the defendant; (2) scienter;

(3) a connection between the misrepresentation or omission and

the   purchase   or   sale   of   a   security;       (4)   reliance    upon   the

misrepresentation or omission; (5) economic loss; and (6) loss

causation.’”     Yates v. Mun. Mortg. & Equity, LLC, 744 F.3d 874,

884 (4th Cir. 2014) (quoting Stoneridge Inv. Partners, LLC v.

Scientific-Atlanta, Inc., 552 U.S. 148, 157 (2008)).                   The second

element, scienter, separates securities fraud from other causes

of action under the Securities Exchange Act.                  It requires the

plaintiff to prove not only that the defendant made a material

misrepresentation,     but   that     he   did   so    with   the   “intent    to

deceive, manipulate, or defraud.”           Tellabs, Inc. v. Makor Issues

& Rights, Ltd., 551 U.S. 308, 319 (2007) (internal quotation

marks omitted).

           The text of § 1658(b), with its references to “fraud,”

“deceit,” “manipulation,” and “contrivance,” strongly implies a

need for proof of fraudulent intent. 4           The Third Circuit has held


      4
       Section 1658(b)(1) speaks in terms of “discovery.” See 28
U.S.C. § 1658(b) (barring suits brought later than “2 years
after the discovery of the facts constituting the violation”).
In this context, the Supreme Court has said, the word
“discovery” is a term of art. See Merck & Co. v. Reynolds, 130
S. Ct. 1784, 1793 (2010). It alludes to the “‘discovery rule,’
a doctrine that delays accrual of a cause of action until the
(Continued)
                                      15
accordingly, concluding that § 1658(b) applies only to section

10(b) securities fraud claims “and other claims requiring proof

of fraudulent intent.”     In re Exxon Mobil, 500 F.3d at 197.                 In

In re Exxon Mobil Corp. Securities Litigation, the Third Circuit

determined that § 1658(b) did not apply to claims for false or

misleading proxy statements pursuant to section 14(a) of the

Securities Exchange Act because such claims do not require proof

of fraudulent intent.    Id.

            Here, in their opening brief, Appellants argue that

§ 1658(b)   covers   Appellee’s   Sarbanes-Oxley       Act   claims      because

those claims involve “allegations of fraud.”                 Appellants’ Br.

13.     However,     § 1658(b)    does        not    speak    in       terms   of

“allegations.”   Per its text, § 1658(b) covers private rights of

action that “involve[] a claim of fraud.”              28 U.S.C. § 1658(b)

(emphasis   supplied).     Appellee     has    not   advanced      a   claim   of



plaintiff has ‘discovered’ it.”   Id.   In fraud cases, it is a
well-settled principle that the limitations period does not
begin until the plaintiff discovers the facts constituting the
fraud or, with due diligence, should have discovered such facts.
See id. at 1794. Critically, though, the Supreme Court has held
that discovery of an alleged misrepresentation is not alone
sufficient to start the two-year limitations period for a
securities fraud claim.   In Merck & Co. v. Reynolds, the Court
held that the § 1658(b)(1) limitations period could not commence
without discovery of scienter, since “[a] plaintiff cannot
recover [for securities fraud] without proving that a defendant
made a material misstatement with an intent to deceive -- not
merely innocently or negligently.”       Id. at 1796 (emphasis
omitted).



                                   16
fraud.        Her claim, rather, alleges retaliatory discharge under

the Sarbanes-Oxley Act.                    To succeed on this claim, she must show

that (1) she engaged in protected activity, (2) the employer

knew    that       she        engaged      in   the     protected      activity,         (3)    she

suffered an unfavorable personnel action, and (4) the protected

activity was a contributing factor in the unfavorable action.

See Feldman v. Law Enforcement Assocs. Corp., 752 F.3d 339, 344

(4th Cir. 2014).                   The first of these elements does not require

proof    that          the    employer’s        conduct       was,    in    fact,    a    legally

actionable fraud.                   The whistleblower need only show that she

“had    both       a    subjective         belief      and    an   objectively       reasonable

belief that the conduct” violated relevant law.                                Welch v. Chao,

536    F.3d    269,          275    (4th   Cir.     2008)     (internal       quotation        marks

omitted).          Though courts have stated that the whistleblower’s

theory of fraud should “at least approximate the basic elements”

of fraud, Day v. Staples, Inc., 555 F.3d 42, 55 (1st Cir. 2009);

accord Van Asdale v. Int’l Game Tech., 577 F.3d 989, 1001 (9th

Cir.    2009),         it     is    not    necessary     to    show    that    a    shareholder

would, in fact, have accrued a cause of action.

               Appellee’s complaint was not specific in identifying

the securities law that she believed Appellants violated.                                       Her

allegation does, however, approximate the basic elements of a

section       10(b)         securities        fraud     claim.        While    a    shareholder

bringing       a       section        10(b)     claim     would      bear     the   burden       of

                                                  17
establishing      a    strong     inference    of    scienter,     see     15   U.S.C.

§ 78u-4(b)(2)(A), Appellee is under no such obligation.                            Her

retaliation claim can succeed without “discovery of the facts

constituting” securities fraud.                28 U.S.C. § 1658(b)(1).               It

stands to reason, then, that § 1658(b)(1), which hinges on the

discovery   of    such       facts,   does    not    apply.       Section       1658(a)

controls,   and       because   Appellee      brought     her    suit   within     that

section’s four-year window, her claim is not barred.

                                        B.

                  Exhaustion of Administrative Remedies

            The       next   question   before       us   is     whether    Appellee

properly exhausted her administrative remedies as to Mroz and

Phillips.    This is a pure question of law, which we review de

novo.   See E.L. ex rel. Lorsson v. Chapel Hill-Carrboro Bd. of

Educ., No. 13-2330, 2014 WL 6783052 (4th Cir. Dec. 3, 2014).

            By statute, a Sarbanes-Oxley Act whistleblower cannot

go   straight     to     court.       Rather,       she   must     first    file     an

administrative complaint with the Secretary of Labor.                           See 18

U.S.C. § 1514A(b)(1).           This complaint must be filed “not later

than 90 days after the date on which such violation occurs.”                        49

U.S.C. § 42121(b)(1).           The whistleblower must then wait 180 days

for OSHA to investigate the allegation and issue a decision.

See 18 U.S.C. § 1514A(b)(1)(B).               If, after 180 days, OSHA has

not issued a final decision “and there is no showing that such

                                        18
delay     is    due           to    the      bad     faith       of     the     claimant,”             the

whistleblower            may       bring     suit       “for     de    novo     review          in     the

appropriate district court of the United States.”                                   Id.

               Appellants            recognize       that       Appellee’s          administrative

complaint      was        timely,       and      that     OSHA    did    not    issue           a    final

decision within 180 days.                         They argue, though, that the OSHA

complaint       did        not       clearly       identify       Mroz        and    Phillips           as

respondents.             They further assert that even if the fault lies

with    OSHA        for       failing       to     pursue       claims    against          Mroz        and

Phillips, the burden was on Appellee to press OSHA to address

its oversight.

               To     be       sure,       an      exhaustion         requirement          would       be

meaningless         if     the      complainant          were    free    to    litigate             claims

bearing little or no connection to the preceding administrative

complaint.          In the context of Title VII cases, we have long

recognized that “[t]he scope of the plaintiff’s right to file a

federal lawsuit is determined by” the contents of the charge

filed with the Equal Employment Opportunity Commission (“EEOC”).

Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009);

see Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)

(holding       that       a    Title       VII     plaintiff      “fails       to     exhaust          his

administrative            remedies         where . . . his            administrative            charges

reference       different            time       frames,     actors,      and        discriminatory

conduct    than       the          central       factual    allegations         in        his       formal

                                                    19
suit”).       However,       we    have       also    said      that   the    administrative

charge “does not strictly limit” the ensuing lawsuit.                                 Bryant v.

Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002) (internal

quotation marks omitted).                 Rather, the litigation may encompass

claims “reasonably related to the original complaint, and those

developed      by      reasonable             investigation            of     the      original

complaint.”      Evans v. Techs. Applications & Serv. Co., 80 F.3d

954, 963 (4th Cir. 1996); see Sydnor v. Fairfax Cnty., Va., 681

F.3d 591, 595 (4th Cir. 2012) (“The touchstone for exhaustion is

whether      plaintiff’s          administrative           and      judicial        claims   are

reasonably     related,       not    precisely            the   same . . . .”         (citation

and internal quotation marks omitted)).

             Our decision in Sydnor v. Fairfax County, Virginia,

681   F.3d    591     (4th    Cir.       2012),       is     illustrative.            There,   a

disabled     nurse    indicated          in    a     questionnaire          accompanying      her

EEOC charge that she had sought authorization to perform light-

duty work.       Later, in a lawsuit alleging a violation of the

Americans      with     Disabilities               Act,     she     sought      a     different

accommodation -- namely, authorization for full-duty work with

the assistance of a wheelchair.                      See 681 F.3d at 594.              We found

this distinction to be insignificant, reasoning that the EEOC

questionnaire afforded the nurse’s employer “ample notice of the

allegations     against           it.”         Id.    at     595.       We     stated,       “The

exhaustion requirement should not become a tripwire for hapless

                                                20
plaintiffs.       While it is important to stop clever parties from

circumventing          statutory         commands,         we     may         not      erect

insurmountable barriers to litigation out of overly technical

concerns.”      Id. at 594.

            Nothing in the record before us suggests that Appellee

was    trying    to        circumvent    the     Sarbanes-Oxley         Act    exhaustion

requirement.           See    Woodford     v.    Ngo,   548     U.S.    81,    90    (2006)

(“[E]xhaustion requirements are designed to deal with parties

who do not want to exhaust . . . .”).                   Appellee’s OSHA complaint

is substantially similar to her complaint in this action.                               The

alleged   harm,        a     retaliatory    termination,        is     identical.        In

addition,       the        OSHA   complaint      plainly      identifies        Mroz    and

Phillips as “person(s) who are alleged to have violated the Act

(who the complaint is being filed against).”                      J.A. 645.         Nothing

more   precise        is    required.      Indeed,      the     Department      of     Labor

regulations in effect at the time Appellee filed the complaint

expressly provided that “[n]o particular form of complaint is

required.”       29 C.F.R. § 1980.103(b) (2009).                  Appellee satisfied

her burden, and OSHA’s subsequent treatment of the complaint

cannot take away her opportunity to seek recourse.                             Cf. B.K.B.

v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002) (“The

EEOC’s failure to address a claim asserted by the plaintiff in

her charge has no bearing on whether the plaintiff has exhausted

her administrative remedies with regard to that claim.”).

                                            21
              We recognize that a primary objective of exhaustion

requirements       is    to    put    parties      on   notice     of   the      allegations

against them.           In the context of Title VII actions, exhaustion

gives the employer an opportunity to investigate and resolve the

issue   and    “prevents        the     employer        from    later     complaining    of

prejudice, since it has known of the allegations from the very

beginning.”        Chacko, 429 F.3d at 510.                Here, though, there can

be no doubt that Mroz and Phillips were well aware of Appellee’s

allegations.            Mroz    was    the    company’s         chief     executive,    and

Phillips its chairman.                 In its October 2009 letter notifying

SouthPeak     of   Appellee’s         administrative           complaint,     OSHA   listed

Phillips as the contact person for the company.                             Subsequently,

SouthPeak’s counsel discussed the complaint with both Mroz and

Phillips.       Surely, it could not have gone unnoticed that the

complaint identified Mroz and Phillips as “person(s) who are

alleged to have violated the Act.”                       J.A. 645.         It should not

have been all that surprising, then, when Appellee named the two

executives in the instant civil action.

                                              C.

                          Nature of Available Remedies

              Appellants        next    challenge         the     award     of     emotional

distress    damages.           The    Final   Verdict      held     Mroz    and    Phillips

accountable for $178,500 apiece in compensatory damages.                                The

district court, which later reduced that sum to $50,000 apiece,

                                              22
inferred that these awards must represent Appellee’s damages for

emotional distress.           Appellants argue that such damages are not

permissible under the whistleblower protection provisions of the

Sarbanes-Oxley         Act.      We    reject   this    reading    of   18    U.S.C.

§ 1514A(c), which expressly entitles a prevailing employee to

“all   relief     necessary       to     make   [her]    whole.”        18    U.S.C.

§ 1514A(c)(1).         We also reject Appellants’ backup argument that

the emotional distress award in this case was excessive.

                                          1.

             Availability of Emotional Distress Damages

           The     first       question    is   whether    emotional         distress

damages are available under 18 U.S.C. § 1514A(c).                  This, too, is

a question of law that we review de novo.                   See Rice v. Cmty.

Health Ass’n, 203 F.3d 283, 287 (4th Cir. 2000) (applying de

novo   review     to     a    district    court’s   determination       that      West

Virginia contract law permitted consequential damages).

           The remedies provision at § 1514A(c) has two parts.

Subsection      (c)(1)       provides:    “An   employee   prevailing        in   any

[enforcement] action under [18 U.S.C. § 1514A(b)(1)] shall be

entitled to all relief necessary to make the employee whole.”

18 U.S.C. § 1514A(c)(1).               In subsection (c)(2), the provision

goes on to state that compensatory damages

           shall include --



                                          23
               (A) reinstatement with the same seniority
               status that the employee would have had, but
               for the discrimination;

               (B) the amount of back pay, with interest;
               and

               (C) compensation for any special damages
               sustained as a result of the discrimination,
               including litigation costs, expert witness
               fees, and reasonable attorney fees.

Id. § 1514A(c)(2).

               Appellants argue that the three forms of compensatory

damages    itemized      in   subsection       (c)(2)    are   the     only    forms   of

relief available under the statute.               There are two problems with

this    argument.        First,   it     all    but   ignores     the    language      in

subsection      (c)(1)    that    says    a    prevailing      employee       “shall   be

entitled to all relief necessary to make the employee whole.”

18 U.S.C. § 1514A(c)(1).             Second, Appellants’ interpretation of

the words “shall include” in subsection (c)(2) is at odds with

our    precedent.        In   Project    Vote/Voting       for    America,      Inc.   v.

Long, we said that “the term ‘shall include’ sets a floor, not a

ceiling.”       682 F.3d 331, 337 (4th Cir. 2012) (internal quotation

marks    omitted)    (interpreting        section       8(i)(2)   of    the    National

Voter Registration Act).           “Courts have repeatedly indicated that

‘shall include’ is not equivalent to ‘limited to.’”                      Id.

               To date, two federal circuit courts have considered

the availability of emotional distress damages under § 1514A.

Both    have    concluded     that     such    damages     are    available.           See

                                          24
Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 266 (5th

Cir. 2014); Lockheed Martin Corp. v. Admin. Review Bd., 717 F.3d

1121,     1138    (10th       Cir.    2013).          To    support       its   position,

Appellants       can   only    direct      our   attention      to    a   smattering     of

district    court      decisions,         most   of    them    unpublished.         These

cases, by and large, liken § 1514A(c) to the remedies provision

in Title VII prior to its 1991 amendments.                     See, e.g., Walton v.

NOVA Info. Sys., 514 F. Supp. 2d 1031, 1035 (E.D. Tenn. 2007);

Murray v. TXU Corp., No. Civ.A.3:03-CV-0888-P, 2005 WL 1356444,

at   *3   (N.D.    Tex.   June       7,   2005).       At     that   time,      Title   VII

provided:

            [T]he court may enjoin the respondent from
            engaging   in    such   unlawful  employment
            practice, and order such affirmative action
            as may be appropriate, which may include,
            but is not limited to, reinstatement or
            hiring of employees, with or without back
            pay . . ., or any other equitable relief as
            the court deems appropriate.

42 U.S.C. § 2000e-5(g) (1988).                   In United States v. Burke, the

Supreme Court held that this provision did not support damages

for “pain and suffering, emotional distress, harm to reputation,

or other consequential damages.”                 504 U.S. 229, 239 (1992).              The

district court opinions cited by Appellants suggest that the

Sarbanes-Oxley Act remedies provision at 18 U.S.C. § 1514A(c)

operates the same way.




                                            25
              The Fifth Circuit’s decision in Halliburton, Inc. v.

Administrative         Review     Board,      771    F.3d    254    (5th    Cir.   2014),

explains why the district courts’ reasoning misses the mark.                             By

its    terms,       the      Sarbanes-Oxley         Act     provision       entitles      a

prevailing      plaintiff         to   “all     relief      necessary      to   make    the

employee whole.”            18 U.S.C. § 1514A(c)(1).               Pre-amendment Title

VII was not so generous.                 See Halliburton, 771 F.3d at 265.

Beyond that, the Sarbanes-Oxley Act “plainly affords at least

some damages, that is, legal relief, in addition to equitable

remedies.”          Id.;    see   18    U.S.C.      § 1514A(b)(1)(B)        (authorizing

Sarbanes-Oxley Act whistleblowers to bring “an action at law or

equity”).       Pre-amendment           Title      VII    “afforded     only    equitable

relief.”      Halliburton, 771 F.3d at 265.

              In the Fifth Circuit’s view, and in ours, the remedies

provision      in    18    U.S.C.      § 1514A      more    strongly    resembles       the

remedies provision for retaliation claims under the False Claims

Act,   31     U.S.C.       § 3730(h).         In    language    that    parallels       the

provision now before us, the False Claims Act states that a

prevailing plaintiff “shall be entitled to all relief necessary

to make that [plaintiff] whole.”                     31 U.S.C. § 3730(h)(1).             It

further states that relief “shall include” reinstatement, back

pay, and “compensation for any special damages sustained as a

result   of    the     discrimination,          including      litigation       costs   and

reasonable attorneys’ fees.”                  Id. § 3730(h)(2).            Every federal

                                              26
circuit court to have addressed the issue has concluded that the

False    Claims    Act     “affords        noneconomic           compensatory     damages.”

Halliburton, 771 F.3d at 265; see Brandon v. Anesthesia & Pain

Mgmt. Assocs., Ltd., 277 F.3d 936, 944 (7th Cir. 2002) (stating

that the allowance for special damages in 31 U.S.C. § 3730(h)

“permits recovery for emotional distress”); Hammond v. Northland

Counseling Ctr., Inc., 218 F.3d 886, 892-93 (8th Cir. 2000).

            Though the case before us centers on a termination of

employment, we note that the Sarbanes-Oxley Act whistleblower

protection      provisions           proscribe       a    wide    range    of    retaliatory

actions,       including     threats       and       harassment.           See    18   U.S.C.

§ 1514A(a).       There will be times when the primary harm will be

noneconomic.       In these instances, the Department of Labor (the

“Department”) observes, “non-pecuniary compensatory relief, such

as emotional distress damages, may be the only remedy that would

make the complainant whole.”                    Amicus Br. 23.             The Department

takes    the     position     that       the     statute         countenances     emotional

distress       awards,     and       indeed     the       Department’s      Administrative

Review     Board     has         a     history           of    upholding     non-pecuniary

compensatory damages in Sarbanes-Oxley Act whistleblower cases.

See Menendez v. Halliburton, Inc., Case Nos. 09-002, -003, 2013

WL 1282255, at *11 (Admin. Rev. Bd. March 15, 2013).                               In these

circumstances,       where           Congress    has          explicitly   empowered     the

Department to enforce § 1514A by formal adjudication, we afford

                                                27
deference to the Department’s interpretation.                       See Welch, 536

F.3d at 276 n.2.         We therefore join the Department, and the

Fifth and Tenth Circuits, in concluding that emotional distress

damages are available under § 1514A(c).

                                         2.

                  Amount of Emotional Distress Damages

             Appellants argue in the alternative that the emotional

distress award was excessive.            Appellants, we note, have already

benefitted from a reduction in the emotional distress damages.

In its Final Verdict, the jury found Mroz and Phillips liable

for $178,500 apiece, all for emotional distress.                         The district

court later reduced these awards to $50,000 apiece.

             The “power and duty of the trial judge to set aside”

an excessive verdict is “well-established.”                       Cline v. Wal-Mart

Stores,   Inc.,    144   F.3d     294,    304    (4th      Cir.    1998)    (internal

quotation marks omitted).         Under Rule 59(a) of the Federal Rules

of   Civil    Procedure,    a    court     may       order    a    new    trial    nisi

remittitur if it “concludes that a jury award of compensatory

damages is excessive.”          Sloane v. Equifax Info. Servs., LLC, 510

F.3d 495, 502 (4th Cir. 2007).            On appeal, we reverse the grant

or denial of a motion for new trial “only upon a showing of

abuse of discretion.       Pursuant to this standard, ‘[w]e must give

the benefit of every doubt to the judgment of the trial judge,’

while   recognizing      that    ‘there       must    be     an   upper    limit   [to

                                         28
allowable damages].’”                Cline, 144 F.3d at 305 (alterations in

original)        (citation      omitted)      (quoting         Gasperini      v.    Ctr.      for

Humanities, Inc., 518 U.S. 415, 435 (1996)).

             We find no abuse of discretion here.                       To the contrary,

the   district         court’s      opinion    offers      a     meticulous        and    well-

reasoned explanation for the reduced award the court selected.

See Jones v. SouthPeak Interactive Corp. of Del., 982 F. Supp.

2d 664, 677-82 (E.D. Va. 2013).                    The court properly took note of

Appellee’s       testimony       about   the       toll    her    firing      took       on   her

family     and    her    psyche.       Appellee,       describing        herself         as   the

“bread winner of the family,” testified that her termination

“caused concern . . . .                We have four children [who at] that

time ranged from age eleven to age four.                         So there was a lot of

responsibility, and always has been on my shoulders to provide

for the family.”              J.A. 1278.       Appellee said she felt “awful”

because she had no choice but to seek unemployment benefits.

Id.   at   1279.         On   job    interviews,       she      said,   the     interviewer

“would always get to the question, why you were terminated[.]

And that was not a good conversation.”                       Id. at 1287.          All told,

it took 23 months for Appellee to secure a new full-time job.

             Appellee         also    testified      that,      even    years      after      her

termination, she still cries sometimes when she thinks about her

experience        at     SouthPeak.           As     the     district      court         noted,

Appellee’s husband corroborated her account, saying he has “been

                                              29
woken up many times in the middle of the night with her crying.

Not understanding, like, people do the things they do, and lie

about her.    And just not knowing why bad things happen.”             Jones,

982 F. Supp. 2d at 680.

           After concluding that the evidence supported an award

for emotional distress, the court compared the jury’s damages

assessment to awards in comparable cases, just as we have done

in our own review of awards for emotional distress.                See, e.g.,

Hetzel v. Cnty. of Prince William, 89 F.3d 169, 172-73 (4th Cir.

1996) (comparing cases involving awards for emotional distress).

This was a sound approach.         We see no reason to disturb the

court’s judgment.

                                    D.

              Perceived Inconsistencies in the Verdict

           We turn now to the hubbub that followed the jurors’

emergence from the jury room.            Appellants raise two arguments

about this stage of the proceedings.          In the first place, they

argue that the court should have accepted the First Verdict.

Separately,   Appellants   argue    that    the   court   should    not   have

accepted the Final Verdict.        We address each of these arguments

in turn.




                                    30
                                     1.

                            The First Verdict

             First, we consider the district court’s decision to

reject the First Verdict as inconsistent.              As this presents a

mixed question of law and fact, see Wilks v. Reyes, 5 F.3d 412,

415 (9th Cir. 1993), we inspect the court’s factual findings for

clear error and examine de novo the legal conclusions derived

from those facts, see Meson v. GATX Tech. Servs. Corp., 507 F.3d

803, 806 (4th Cir. 2007).        Actions taken after the inconsistency

determination are reviewed for abuse of discretion.              See Hauser

v. Kubalak, 929 F.2d 1305, 1308 (8th Cir. 1991) (per curiam).

             Rule 49(b)(3) of the Federal Rules of Civil Procedure

outlines     several   options   available   to   a   district   court   when

answers to written questions are inconsistent with a general

verdict. 5    These options are: “(A) approve, for entry under Rule


     5
       Rule 49(b) covers general verdicts, which are those “by
which the jury finds in favor of one party or the other, as
opposed to resolving specific fact questions.”       Black’s Law
Dictionary 1696 (9th ed. 2009).     The rule does not apply to
special verdicts -- i.e., verdicts “in which the jury makes
findings only on factual issues submitted to them by the judge,
who then decides the legal effect of the verdict.” Id. at 1697.
Although the verdict form here has characteristics of both a
general verdict and a special verdict, in that it seeks a
conclusion on liability but separate damage assessments for each
defendant, it is best characterized as a general verdict.    See
Mason v. Ford Motor Co., 307 F.3d 1271, 1275 (11th Cir. 2002)
(per curiam) (characterizing a similar verdict form as a general
verdict).



                                     31
58,   an     appropriate          judgment       according        to     the        answers,

notwithstanding         the   general      verdict;     (B)   direct         the    jury    to

further consider its answers and verdict; or (C) order a new

trial.”     Fed. R. Civ. P. 49(b)(3).              The purpose of this rule, we

have stated, “is to promote the efficiency of trials by allowing

the   original      deliberating        body     to    reconcile        inconsistencies

without the need for another presentation of the evidence to a

new body.”        Austin v. Paramount Parks, Inc., 195 F.3d 715, 725

(4th Cir. 1999) (internal quotation marks omitted).

             A district judge who “concludes that an inconsistent

verdict     reflects      jury     confusion     or    uncertainty . . . has               the

duty to clarify the law governing the case and resubmit the

verdict for a jury decision.”                  Hafner v. Brown, 983 F.2d 570,

575 (4th Cir. 1992).              In Hafner v. Brown, the jury’s initial

responses     on    the    verdict      form     indicated    that       two       Baltimore

police     officers      were     liable   for    conspiracy       in    a     civil      suit

pursuant    to     42    U.S.C.    § 1983.       983   F.2d   at       574.        The    jury

awarded      punitive         damages      against        those        officers,          but,

perplexingly, it awarded no compensatory damages.                             See id.       We

agreed     that    the     jurors    “clearly      were    confused,”          and       held,

accordingly, that the district court did not err in offering a

supplemental jury instruction and allowing the jury to reconvene

for further deliberation.            Id. at 574-75.



                                            32
              Here,      the    jury    found      all   three    Appellants     liable.

Although      it   would       not     necessarily       be    inconsistent     to     find

liability but assess no damages, see Zhang v. Am. Gem Seafoods,

Inc., 339 F.3d 1020, 1036 (9th Cir. 2003), it is difficult to

square    what     the    jury    did    in   the     First    Verdict.        With    this

verdict, the jury indicated that Appellee was entitled to back

pay and compensatory damages, but only from SouthPeak.                           This is

peculiar, given Mroz and Phillips’s involvement in the unlawful

termination.          Faced with this discrepancy, the district court

did    the    sensible         thing:    it     conferred        with    counsel,      then

administered a supplemental jury instruction and sent the jury

back to redeliberate.                See Hafner, 983 F.2d at 575.                    In the

process, the court identified the source of its confusion but

was careful to state that it did not wish to influence the

jury’s decision.          We see no error.

                                              2.

                                     The Final Verdict

              We next consider the Final Verdict.                       Appellants argue

that     it    was       “irreconcilably           inconsistent         to    find     that

SouthPeak . . . caused            back    pay      damages     but      no   compensatory

damages and that Phillips and/or Mroz caused no back pay damages

but did cause compensatory damages -- since it is the same set

of facts alleged against each defendant that supposedly caused

the    same   harm.”           Appellants’      Br.      38.     The     district     court

                                              33
rejected this argument when Appellants raised it in a Rule 59

motion for a new trial.                  We review the denial of Appellants’

motion for abuse of discretion.                  See Gregg v. Ham, 678 F.3d 333,

342 (4th Cir. 2012).

               “A jury verdict may be set aside and the case remanded

for    a    new    trial    when    it    is    not    possible    to    reconcile    the

findings.          Likewise, a new trial is appropriate if the verdict

is     against        the    clear       weight        of   the    evidence . . . .”

TransDulles Center, Inc. v. USX Corp., 976 F.2d 219, 227 (4th

Cir. 1992).          Here, the Final Verdict did not conflict with the

jury instructions.              See id. at 227-28 (rejecting a claim of

verdict       inconsistency        where       the    verdict   accorded       with   jury

instructions).         In charging the jury, the district court did not

state that the jury must hold the defendants liable for equal

sums.       The court instructed the jury: “[I]f you return a verdict

in favor of Mrs. Jones against any defendant, you should put in

the amount of damages you think are recoverable.”                              J.A. 1930.

The jury did just that.

               Appellants have not shown that the Final Verdict was

“against the weight of the evidence or based on evidence which

is false.”          Gregg, 678 F.3d at 343 (internal quotation marks

omitted).          While it is true that a single act -- a retaliatory

discharge -- caused Appellee’s injury, we believe a reasonable

jury       could    recognize      the   distinct       role    that    each    appellant

                                               34
played in that act.            After all, it was SouthPeak -- not Mroz or

Phillips -- that paid Appellee’s salary and that stopped paying

it upon her termination.           Though Mroz and Phillips were involved

in the decision to fire Appellee, they could not make it alone;

that decision belonged to the entire board of directors.                              That

being the case, it would hardly have been unreasonable for the

jury     to    conclude    that    SouthPeak,        rather     than     two    of     its

executives, should cover the back pay award.                      Similarly, it is

not    unreasonable       to    conclude      that    Mroz      and    Phillips       bear

responsibility      for    Appellee’s      emotional       distress.         Both     were

involved in the decision to terminate Appellee.                          Beyond that,

Phillips      allegedly    lied    to    Appellee    about      the    errors    in    the

company’s SEC filings.            And it was Mroz who delivered the news

of    Appellee’s    termination.          Appellee       testified     that     she    has

tearfully      recalled    her     experiences       at    SouthPeak,        again     and

again, in the years since her firing, and we do not doubt that

these scenes loom in her recollections.

               In short, we do not share Appellants’ view that the

Final Verdict was “inherently inconsistent.”                          Appellants’ Br.

38.    The district court was not obliged to reject it, and its

denial    of    Appellants’       Rule   59     motion    was    not    an     abuse    of

discretion.




                                           35
                                           E.

                                  Attorneys’ Fees

              Lastly,    there     is     the     matter   of      attorneys’      fees.

Appellants     make     two   arguments.          First,   they     assert    that   the

district court failed to follow the three-step process outlined

in McAfee v. Boczar, 738 F.3d 81 (4th Cir. 2013).                          Second, they

challenge the court’s joint-and-several allocation of attorneys’

fees.

              We review an award of attorneys’ fees for abuse of

discretion.         See Robinson v. Equifax Info. Servs., LLC, 560 F.3d

235,    243   (4th     Cir.     2009).      In    making     this    assessment,      we

recognize that our review of the record, no matter how careful,

cannot substitute for the district court’s “close and intimate

knowledge of the efforts expended and the value of the services

rendered.”             Id.      (internal         quotation        marks      omitted).

Accordingly, “we will only reverse such an award if the district

court   is    clearly     wrong    or    has     committed    an    error     of   law.”

McAfee, 738 F.3d at 88.

                                           1.

                        Calculation of Attorneys’ Fees

              Our     opinion     in     McAfee     states      that   the      “proper

calculation of an attorney’s fee involves a three-step process.”

738 F.3d at 88.          First, “the court must determine the lodestar

figure by multiplying the number of reasonable hours expended

                                           36
times     a    reasonable      rate.”         Id.   (internal    quotation      marks

omitted).       Second, “the court must subtract fees for hours spent

on unsuccessful claims unrelated to successful ones.                       [Third],

the court should award some percentage of the remaining amount,

depending on the degree of success enjoyed by the plaintiff.”

Id.     (citation       omitted)   (internal        quotation    marks    omitted).

Appellants argue the court neglected to perform the third step.

They deem this omission a reversible error and urge us to vacate

the fee award.

               To be sure, it can be challenging to put a number on

“success.”           There is no “precise rule or formula” to aid the

court in determining just how successful a plaintiff may have

been.     Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).                   To wit,

the Supreme Court has said it would be inappropriate to simply

compare       “the    total   number    of   issues   in   the   case    with   those

actually prevailed upon.”              Id. at 435 n.11 (internal quotation

marks omitted).           Likewise, although we have advised courts to

compare the damages award to the amount sought, a court should

not reduce a fee award “simply because the plaintiff failed to

prevail on every contention raised in the lawsuit.”                     Id. at 435.

A court may consider whether a fee award seems reasonable in

light of the amount of damages awarded.                 However, “a substantial

disproportionality between a fee award and a verdict, standing



                                             37
alone, may not justify a reduction in attorney’s fees.”                         McAfee,

738 F.3d at 94.

               Here, the district court did not organize its opinion

as our instructions in McAfee indicate it should have.                         However,

it is simply untrue to claim that the court failed to consider

Appellee’s degree of success.                The court’s opinion takes note of

Appellants’ claim that Appellee “was not successful in certain

aspects of the case.”               Jones v. SouthPeak Interactive Corp. of

Del., No. 3:12cv443, 2014 WL 2993443, at *11 (E.D. Va. July 2,

2014).    The court acknowledged that Appellants, “to some extent,

were successful in reducing the damage award.”                            Id. at *12.

However, it said, that reduction “is not an unsuccessful claim

as to which a fee request needs to be reduced in the same manner

as not succeeding on the claim at all.”                     Id.    The same is true,

the    court    said,      of    Appellee’s       unsuccessful     efforts    to   block

discovery and to prevent the withdrawal of defense counsel.                           See

id.

               The    court      also   addressed        Appellants’   argument    that

“the   amount        of   hours    attributed       to    post-judgment     motions   is

excessive       and       in    light   of   the    limited       success    [Appellee]

obtained at the post-judgment stage, it is not reasonable and it

should be reduced.”              2014 WL 2993443, at *14 (internal quotation

marks omitted).            In response, the court repeated that Appellee

“had substantial and material success at trial . . . .                         [I]t is

                                             38
not   true    that   [Appellee]      had    limited     success      [in    the   post-

judgment stage].          [Appellee] retained a large portion of the

total     judgment    and    she     successfully          opposed     [Appellants’]

request for a new trial.”          Id.

             Plainly, then, the court considered Appellee’s success

in the litigation and concluded that Appellee was substantially

and materially successful.            The facts support this conclusion.

The jury found all three defendants liable for violations of the

Sarbanes-Oxley Act and awarded damages against each defendant.

Following     remittitur,    the     total      award   came    out    to    $737,000,

including $44,000 in pre-judgment interest.                    This is about one-

third of the roughly $2 million that Appellee sought. 6                           Given

this result, we cannot say that declining to reduce the lodestar

figure was an abuse of discretion.               See Hensley, 461 U.S. at 435

(“Where a plaintiff has obtained excellent results, his attorney

should recover a fully compensatory fee.”).

                                           2.

                      Allocation of Attorneys’ Fees

             Appellants’     final       argument     is    that     the    joint-and-

several      allocation     of     attorneys’       fees     was      an    abuse   of


      6
       Appellee’s Rule 26 disclosures list $2,524,337 in damages
sought.    This figure includes $500,000 in punitive damages;
however, Appellee did not request punitive damages in her
complaint.



                                           39
discretion.       We disagree, on the ground that the district court

enjoys considerable latitude in deciding how it will allocate

attorneys’ fees.

              The proposition that district courts have discretion

over    the   proper   allocation     of      a    fee   award   among   multiple

defendants is widely recognized.                  See, e.g., Torres-Rivera v.

O’Neill-Cancel, 524 F.3d 331, 337 (1st Cir. 2008); Herbst v.

Ryan, 90 F.3d 1300, 1304 (7th Cir. 1996); Council for Periodical

Distribs. Ass’ns v. Evans, 827 F.2d 1483, 1487-88 (11th Cir.

1987).    Options available to a court may include: dividing the

award    equally    among   the    defendants;        apportioning    the     award

according to the defendants’ relative culpability; awarding fees

“in the same proportions as [the] jury assessed actual damages”;

or holding a single defendant liable for fees related to a claim

for which that defendant was “solely or largely responsible.”

Council for Periodical Distribs., 827 F.2d at 1487-88.                      A court

is free to combine two or more of these methods, or it may

select another method entirely.           See id. at 1488.

              Two of our sister circuits -- the Seventh and District

of Columbia Circuits -- have identified several situations in

which it may be appropriate to hold all defendants jointly and

severally liable for attorneys’ fees.               See Turner v. D.C. Bd. of

Elections     &   Ethics,   354   F.3d    890,      897-98   (D.C.   Cir.    2004);

Herbst, 90 F.3d at 1305.          For instance, they have said, “[i]t is

                                         40
frequently     appropriate       to    hold     all      defendants     jointly       and

severally liable for attorneys’ fees in cases in which two or

more   defendants       actively       participated        in    a     constitutional

violation.”     Herbst, 90 F.3d at 1305; accord Turner, 354 F.3d at

897.   A defendant’s ability to pay the award may be of some

relevance as well.        In civil rights cases, “courts have upheld

the imposition of joint and several liability for a fee award

where there existed a question as to whether the fee would be

collectible from one of the defendants.”                        Herbst, 90 F.3d at

1306 n.13; accord Turner, 354 F.3d at 897-98.                        The District of

Columbia     Circuit    has     also    said      that     “a    plaintiff’s      fully

compensatory fee for claims centered on a set of common issues

against two or more jointly responsible defendants should be

assessed   jointly      and    severally.”         Turner,       354    F.3d   at     898

(internal quotation marks omitted).

           Here, Appellants call on us to redistribute the fee

award in proportion to each appellant’s share of the damages

awarded.     We have never required a defendant’s share of a fee

award to equal his share of damages, nor have other circuits.

See, e.g., Corder v. Gates, 947 F.2d 374, 383 (9th Cir. 1991)

(“We have never mandated apportionment based on each defendant’s

relative     liability        under    a    jury’s       verdict.”).           Such    a

requirement     would    take      away     the    discretionary         power      that

district courts have traditionally enjoyed in this area.

                                           41
              Even    if,   in   the   first     instance,        we    might    not   have

decided to hold Appellants jointly and severally liable for the

fee award, we cannot say that the district court’s decision was

an    abuse   of     discretion.       Mroz      and   Phillips        were     high-level

executives at SouthPeak.            Both were involved in the decision to

fire Appellee.        The claims against all three Appellants were the

same, and although the damages awards ended up differing, the

work that Appellee’s counsel put into developing, investigating,

and    pursuing       those      claims   cannot       be     so       easily    divided.

Accordingly, we affirm.

                                          III.

              For    the    foregoing      reasons,         the    judgment       of   the

district court is

                                                                                 AFFIRMED.




                                           42
