Due Process Required No Less.
Concepcion v. Amscan Holdings, Inc., Case No. B247832 (2d Dist., Div. 7 Feb. 18, 2014) (published), although occurring in a class action context, is actually a decision that teaches a due process pointer in the area of substantiating attorney’s fee submissions before a trial judge.
In response to a class action defense challenge that claimed fees by class counsel were too high (given the absence of a “clear sailing” clause in the settlement agreement), the trial judge tentatively agreed and requested that class counsel submit billings in camera in order to review the reasonableness of the hours for which compensation was sought. After reviewing the billings in camera, the trial judge granted class counsels’ full request, prompting an appeal by the defense.
The appellate court reversed on due process grounds. Although acknowledging that fee awards can be based on counsel declarations alone without detailed billings (although detailed billings are preferable), the Court of Appeal determined that a fee claimant submitting supplemental billings for review must provide them to the opponent for review, not just the trial judge. In this way, the opponent has the opportunity to make further argument based on the supplemental evidence presented to challenge the reasonableness of a fee request. “Under our adversarial system of justice, once class counsel presented evidence to support their fee request, [defendant] was entitled to see and respond to it and to present its own argument as to why it failed to justify the fees requested.” (Slip Op., p. 18.)
The Concepcion court did suggest that redacted billings could be provided to safeguard the privilege, although we have posted on some unpublished decisions requiring resubmission of billings that were too heavily redacted so as to retard meaningful review. (See our June 30, 2008 post on Gregg I and Gregg II decisions.) However, to the extent class counsel deems the billings necessary to prove reasonableness of requested fees, such an election is likely an implied waiver of the privilege, according to the panel in a 3-0 decision authored by Presiding Justice Perluss.
Can you keep a secret? Currier & Ives. 1872. Library of Congress.