A federal judge in Camden, pointing to his concern that “hourly or relatively low salaried workers may not obtain the skilled representation they deserve,” granted a 25 percent fee enhancement to a lawyer after his client obtained a $258,926 jury verdict in an age discrimination suit against vitamin and supplement retailer General Nutrition Corp.

At the same time, the judge ruled out the possibility of the lawyer recovering a statutory and contingency fee simultaneously.

The enhancement of 25 percent above the $127,215 lodestar brings Vineland attorney Richard Pescatore's fee to $159,018, warranted because he undertook representation of the plaintiff without assurance that he would be paid, U.S. Magistrate Judge Joel Schneider said Monday in Andujar v. General Nutrition.

The judge also approved $1,823 in costs, prejudgment interest of $123,926, and a payment, in an amount to be determined, to offset negative tax consequences of a lump-sum award. The amounts are to be paid by the defendant if the verdict is upheld on appeal. The appeal to the Third Circuit is pending, according to the decision.

“Without the prospect of a potential high fee, the Court is concerned that hourly or relatively low salaried workers may not obtain the skilled representation they deserve,” Schneider said. “Competent counsel should not only represent those with largesse,” he said, citing Norman v. Haddon Township, a July ruling granting a 33.33 percent fee enhancement in a police excessive-force case.

Following the October 2017 jury verdict in his client's favor, Pescatore sought the enhanced fee as counsel to a prevailing party in a New Jersey Law Against Discrimination claim. His retainer agreement provided him a contingency fee of 45 percent of the net recovery, the decision noted.

Initially, Pescatore contended he was entitled to the full amount of his court-awarded fee, in addition to his contingency fee, which Schneider termed “a dual fee recovery.” Counsel for GNC did not object to the prospect of a dual recovery but said any such recovery should be taken into account when determining whether a lodestar enhancement was warranted.

After Schneider asked for supplemental briefing on whether a dual recovery was permissible, Pescatore submitted a new proposal to calculate his attorney fee, seeking 45 percent of the jury award ($115,695), plus his court-awarded lodestar ($127,215), for a total of $242,910. GNC opposed that proposal.

Later, Pescatore sought 45 percent of the total sum of the judgment plus the court-awarded fee. Those two amounts totaled $386,141, and his 45 percent share would have been $173,763. He also sought a 50 percent enhancement of the court-awarded fee, which would bring the total fee award to $237,000. But Schneider rejected those terms as inconsistent with Pescatore's written fee agreement and applicable case law. Pescatore did not cite any case law approving such an arrangement, while GNC's lawyer cited persuasive case law to the contrary, Schneider said.

Case law provides that “unless a fee agreement specifically refers to a statutory fee award, a lawyer may receive either the agreed upon contingency fee based on the jury award or the statutory award, whichever is greater. Counsel may not, as is requested here, receive a portion of both,” Schneider said. The judge awarded the $127,215 lodestar, since it was slightly greater than the contingency fee of 45 percent of the net jury award.

And since Pescatore sought a 50 percent enhancement, and GNC proposed an enhancement of 5 percent at most, Schneider settled on a “mid-range” enhancement of 25 percent.

“While the Court believes the plaintiff is entitled to an enhancement, it need not be excessive. This was not an unduly complex case. Nor did counsel spend an inordinate amount of time on the case. It is unlikely plaintiff's counsel had to [forgo] potentially lucrative work on account of his handling of this case,” Schneider said.

The judge said the plaintiff is entitled to be compensated for negative tax consequences of receiving a lump-sum award in an employment discrimination action. He rejected GNC's argument that it was not given fair notice that the plaintiff would make such a claim. Although no such claim was listed in the joint final pretrial order, it is not clear whether such notice was required, Schneider said. If it was, the court “deems the JFPTO amended to prevent manifest injustice to the plaintiff,” Schneider said.

An expert for the plaintiff estimated the negative tax consequence at $69,443, while a defense expert said the tax impact was $29,650. Schneider said the plaintiff wrongly assumed his entire award would be taken into consideration when calculating the tax impact, when only the front and back pay awards should be considered. And the defendant wrongly omitted the front pay award from its calculation, the judge said.

Rather than doing his own calculation, Schneider left it to the parties to agree on the correct amount.

Andujar was terminated at age 58 from his $28,000-a-year job managing the GNC store in Vineland in 2014, according to the opinion. His replacement was a man in his 20s. Andujar maintained that his store's sales and profits had increased while he was at the helm, and that he had received numerous awards from the company for performance. GNC said in its answer that Andujar was not working to the company's expectations and his termination was justified by his lack of performance.

Pescatore didn't return a call about the case.

GNC's lawyer, Daniel McCarthy of Rogut McCarthy in Cranford, also did not return a call.

GNC did not respond to an emailed request for comment about the decision.