VSC: Contractual right to attorneys' fees applies to this breach of covenant of good faith and fair dealing

Harsch Properties, Inc. v. Nicholas 2007 VT 70 [Filed 27-Jul-2007] http://dol.state.vt.us/gopher_root3/supct/current/2005-494.op

Where exclusive listing agreement provided, "If the Broker is forced by collection or litigation effort to enforce the terms and conditions of this agreement, then the prevailing party will be entitled to reimbursement for all costs of collection, including attorney's fees," Broker was entitled to fees where Broker prevailed on claim that homeowners violated covenant of good faith and fair dealing by negotiating directly with prospective buyers; covenant of good faith and fair dealing was an implied term of the agreement, thus meeting the "terms and conditions" provision re: recovery of costs and attorneys' fees.

2nd Cir: Attempt to clarify calculation of attys' fees under fee shifting statutes

The meaning of the term "lodestar" has shifted over time, and its value as a metaphor has deteriorated to the point of unhelpfulness. This opinion abandons its use.FN4 We think the better course-and the one most consistent with attorney's fees jurisprudence-is for the district court, in exercising its considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case. The district court should then use that reasonable hourly rate to calculate what can properly be termed the "presumptively reasonable fee."
FN4. While we do not purport to require future panels of this court to abandon the term-it is too well entrenched-this panel believes that it is a term whose time has come.
Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 2007 WL 2004106, *7 (2d Cir. 2007)