Degree of Success
The Ninth Circuit, in Aguirre v. Los Angeles Unified School District, held that reasonable attorneys' fees are determined using the rationale of Hensley v. Echkerhart, a case decided under 42 U.S.C. 1988. Hensley held thta a partially prevailing plaintiff generally may not recover fees for unsuccessful claims.
Judge Pregerson, concurring in the decision, noted that arriving at a figure for reasonable attorneys' fees, where not all claims are successful, is partially a matter of discretion and not an arithmetic calculation. Where successful claims are related to unsuccessful claims, the plaintiff should be entitled to reimbursement for both. And even if the unsuccessful claims are unrelated to the successful ones, payment may be appropriate if the work performed on the unrelated claims is inseparable from that performed in furtherance of the successful claims.
How the Court will apply the Aguirre case and the Pregerson concurrence remains to be seen.
The decision can be found here.