The Supreme Court of South Carolina

Nancy S. Layman, David M. Fitzgerald,Vicki K. Zelenko, Wyman M. Looney, Nancy Ahrens, James Haynes, and Janice Franklin, on behalf of themselves and all others similarly situated, Respondents/Appellants,

v.

The State of South Carolina and The South Carolina Retirement System, Appellants/Respondents.

ORDER

On January 28, 2008, this Court issued an opinion affirming the circuit judges award of statutory attorneys fees for counsel who successfully litigated the claims of a class of TERI participants (Respondents/Appellants in the instant action) against the State and the South Carolina Retirement System.[1] Layman v. The State of South Carolina and The South Carolina Retirement System, Op. No. 26427 (S.C. Sup. Ct. filed January 28, 2008) (Shearouse Adv. Sh. No. 4 at 50) [hereinafter Layman II]. Beginning with a lodestar calculation based on the timesheets in the record before this Court and on counsels hourly rates, this Court enhanced the lodestar figure with a multiplier to reflect the exceptional circumstances of the case, and modified the circuit judges calculation of attorneys fees to award counsel for the TERI plaintiffs $445,226.60. Id. at 73.

Counsel for the TERI plaintiffs filed a petition for rehearing, and in their return, the State and the Retirement System moved for leave to supplement the record. We deny the motions of both parties and issue this order modifying the award of attorneys fees to reflect the additional fees and costs incurred by counsel for the TERI plaintiffs in litigating the issue of attorneys fees. In doing so, we note that counsel for the TERI plaintiffs did not set forth these additional fees and costs in the record before this Court in Layman II even though counsel were presumably aware that the States and the Retirement Systems theory of the case was that under the relevant statute, attorneys fees were to be awarded based solely on counsels hourly rate and time expended. While the matter could be remanded at this juncture for a calculation of attorneys fees in accordance with the methodology outlined in Layman II, in the interest of fairness and in ending this litigation without further accrual of fees by either side, we modify our original award of attorneys fees to include this additional time expended by counsel.

The revised award of attorneys fees is itemized as follows:

Accordingly, we modify our previous award of attorneys fees in Layman II, and assess reasonable attorneys fees in the amount of $1,075,701.74 against the State and the Retirement System.

IT IS SO ORDERED.

Columbia, South Carolina
March 10, 2008

[1] This Courts opinion in the underlying litigation is found in Layman v. The State of South Carolina and The South Carolina Retirement System, 368 S.C. 631, 630 S.E.2d 265 (2006) [hereinafter Layman I].

[2] Itemized post-June 1 costs and fees incurred by counsel for TERI plaintiffs were set forth in affidavits included in the petition for rehearing.

[3] As described in Layman II, attorneys fees in this matter are not being awarded for the litigation of the Working Retirees claims in Layman I. Accordingly, in calculating a reasonable fee, this Court reduced the number of total hours submitted for each attorney and staff member by 3% (shown as Net Hours Expended) to account for time devoted solely to the claims of the Working Retirees in the underlying litigation. See Layman II at 70. Because the additional time expended by counsel after June 1, 2006 logically reflects only those hours spent on the litigation of attorneys fees with respect to the TERI plaintiffs, there is no need for a similar reduction in our calculation today.