Category Archives: fees

Safe Act for Victims of Domestic Violence of Sexual Assault

On October 1, 2013, the “Safe Act” becomes effective.  The Safe Act provides 20 days of unpaid leave to victims of domestic violence and sexual assault.  The employer can require that this unpaid leave be covered under FMLA, New Jersey FMLA, vacation, or personal leave.

The purpose of the Safe Act is to provide New Jersey victims with time to deal with matters related to an incident of domestic abuse or sexual assault.  The Safe Act covers:

  1. The employee,
  2. The employee’s child,
  3. The employee’s parent,
  4. The employee’s spouse,
  5. The employee’s domestic partner, or
  6. The employee’s civil union partner.

Within 12 months of the incident, the Safe Act’s purpose is to provide the victim of domestic abuse or sexual assault can:

  • Seek medical attention for, or recover from, physical or psychological injuries;
  • Obtain servies from victim services organization;
  • Obtain psychological or other counseling;
  • Participate in safety planning, temporarily or permanent relocate, or undertake other actions to increase safety;
  • Seek legal assistance or remedies; or
  • Attend, participate in, or prepare for court proceedings.

If the employer violates the Safe Act, the employee can ask for the following remedies: (1) Reinstatement; (2) compensation for lost wages and benefits; (3) an injunction; (4) attorney’s fees and costs; (5) civil find of $1,000 to $2,000 for a first time violation; and (6) a fine of $5,000 for any subsequent violations.

via Labor Employment Law Blog: New Jersey Provides Unpaid Leave to Victims of Domestic Violence.

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Filed under civil rights, courts, discrimination, employment, ERISA, federal, fees, Pending Legislation, state, wage

Attorney Fees and Prevailing Party

This is an interesting case, coming out of the 8th Circuit Court of Appeals, that reinforces the idea that attorney fees should only be granted to the prevailing party.

In S. Wine and Spirits of Nevada v. Mountain Valley Spring Co., No. 12-1857 (8th Cir. 2013), the 8th Circuit Court of Appeals ruled that neither of the parties prevailed in the lawsuit.  Thereby, no attorney fees would be granted.

So why did this case come to the 8th Circuit Court of Appeals?  Southern Wine and Spirits won a judgement for $861,000.  In the same token, Mountain Valley won a judgment of $183,000.  Southern argued that it was entitled to attorney fees because it had prevailed on 3 out of its 4 claims and because its monetary award was more than four times larger than the one obtained by Mountain Valley.

The District Court and the 8th Circuit Court of Appeals disagreed.  Following Nevada law, a party is not the “prevailing party” when both parties are found to be at fault.  See also Glenbrook Homeowners Ass’n v. Glenbrook Co., 901 P.2d 132, 141 (Nev. 1995) (per curiam).

Thereby, in this case, when both parties won a judgment, it is fair to say that both parties have been found at fault.

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Filed under Appellate, attorneys, fees, legal decision, rules

Minnesota Lodestar Fees in Consumer Protection cases

On February 13th, the Minnesota Supreme Court held that the lodestar method must be used when determining attorney fees in consumer protection cases.

An unanimous Minnesota Supreme Court in Green v. BMW of N. Am., A11-0581 (Minn. Feb. 13, 2013), ruled that the lodestar method applies for the attorney fee calculation under Minnesota’s lemon law.  In addition, the Minnesota Supreme Court stated that courts must consider, among other factors, the amount involved in the litigation and the results obtained.

In the Green case, the district court issued a verdict in favor of Green and awarded her $25,157 in damages.  The district court also granted attorney fees and costs in the amount of $229,064.  The Minnesota Court of Appeals affirmed.  The Minnesota Supreme Court reversed the decision, and remanded.

When determining the appropriate amount for fees – the court did not consider any other factors, other than the reasonableness of the fees.  The court heavily relied on the policy behind the fee-shifting provisions.  The court explained that the purpose of fee-shifting provisions was to provide incentives for attorneys to take these types of cases.

The district court did not award fees under the Magnuson-Moss Warranty Act because the court did not allow for double recovery.

The Supreme Court reversed the fees decision because the lodestar method should have been applied.  Under Minnesota’s Lemon Law, Minn. Stat. 325F.665, subd. 9, consumers “may bring a civil action to enforce” the lemon law and “recover costs and disbursements, including reasonable attorney’s fees incurred in the civil action.”

The Supreme Court explained that Minnesota courts have consistently used the lodestar method for determining the reasonableness of fees.  In fact, courts have used the lodestar method in numerous settings, including MFLSA, MHRA, Minnesota Securities Act, and in polygraph testing.  Given the broad application of lodestar, the Supreme Court held that applying lodestar in consumer protection cases was appropriate.

When applying the lodestar method, courts must first determine the number of hours reasonably expended and multiply those hours by a reasonable hourly rate.  When determining “the reasonable value of legal services,” the court must consider “all relevant circumstances.”  The Supreme Court explained,

The circumstances that inform a court’s “determine[ation of] reasonableness include ‘the time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.'”

The Supreme Court rejected the argument that the “amount involved” was confined to a consideration of the amount involved only as it relates to a prevailing party’s percentage of success.  The Supreme Court held that courts look “to both the amount involved and the results obtained.” (emphasis in original).

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Filed under Appellate, attorneys, civil rights, courts, District Court, fees, legal decision, Minnesota, Supreme Court, taxable costs

Dayton’s budget includes a legal services tax

Like Governor Pawlenty, Governor Dayton now wants to create a legal services tax.  The effect of such a bill would mean that the next time you or your client wants to seek a lawyer’s aid, in addition to paying the attorney’s fees, the client will need to pay a burdensome tax on legal services.

To reduce the budget deficit, this is what Governor Dayton proposed:

  • Reducing corporate income tax from 9.8% to 8.4%.  A huge drop of 1.4%.
  • Governor Dayton stated that he wants to tax clothing that costs more than $100.
  • Governor Dayton wants to tax the following services: legal, accounting, architecture, specialized design, computer, management consulting, advertising, employment and business support services.

Taxing legal services is a bad idea, which would significantly impact a population that cannot afford to get hit.  And why is that?  The legal services tax will be paid by the client.

So say, you are trying to fight foreclosure.  The owner of the home will have to pay that tax.  Or say, you are trying to fight a custody battle.  The parent will have to pay that tax.

Imposing such a severe burden on the middle-class, as well as the lower-class, will inevitably have a chilling effect.  In other words, the vast majority of Americans will no longer have a viable resource when exercising their constitutional rights.

The Minnesota State Bar Association shares this same viewpoint.  In addition, the MSBA has also stated that the tax would be next to impossible to administer.

via Dayton unveils a legal services tax to fill budget deficit – MinnLawyer Blog.

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Filed under civil rights, fees, Minnesota, Pending Legislation

Contingency fees in Personal Injury

The ABA Journal reported on an interesting case; where the attorney was unable to get all of its full contingency fees.  The reason?  Because the client replaced the attorney with himself prior to the $1 million settlement.

New York’s Appellate Division, First Department, ruled in an unsigned opinion that the settlement wasn’t yet final when lawyer Jeffrey Aronsky handled the case because the settlement offer hadn’t been formally communicated to the defendant, Rivlab Transportation. However, the court held that Aronsky will be allowed to place a lien on Gyabaah’s recovery and receive a pro rata fee based on his contributed work, Reuters reports.

Reuters notes that in a dissent, Justice Richard Andrias considered the settlement binding because a general release was signed and defense counsel confirmed in writing that the $1 million settlement offer was accepted.

via Lawyer Replaced by Client Can’t Collect Full Contingency on $1M Settlement, Court Rules – News – ABA Journal.

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