Beach Boys Ninth Circuit Memorandum Affirmance.
Well, on this one, founding Beach Boy Mike Love appealed an award of attorney’s fees to Sanctuary Records Group after he lost a right to publicity dispute governed by English law that does not recognize such a right. In Love v. Sanctuary Records Group, Ltd., Case Nos. 08-55035/08-55973 (9th Cir. July 8, 2010) (mem., not for publication), the Ninth Circuit Court of Appeals affirmed the fee award against Mr. Love. California Civil Code section 3344 authorizes an award to a prevailing party in a right to publicity suit, and Mr. Love did not demonstrate an absence of fee entitlement where a dismissal was granted for failure to state a claim or overcome the business judgment rule defense in a derivative action.
Plaintiff argued that fees should be reduced for intra-office conferencing, but this rule did not apply to reduce fees for defense counsel representing different defendants who are attempting to coordinate their filings. Beyond this, the “but-for-calculation” style for the fee award in this case was justified, as long as district judge explains how it fairly balanced hours and showed why hours were intertwined between covered and non-covered claims. (Welch v. Metro. Life Ins. Co., 480 F.3d 942, 948-949 (9th Cir. 2007).)
Unusual Contingency Fee Arrangement Based on Estimated Damages Comes Up for Review before First District Court of Appeal.
Sometime this coming week, the California First District Court of Appeal will hear argument in an interesting case about the validity of an unusual contingency fee arrangement.
In Cotchett, Pitre & McCarthy v. Universal Paragon Corp., Case No. A126149 (1st Dist.), plaintiff law firm was awarded about $8 million in fees based on a contingency fee agreement that tethered fees to the estimated damages that a client might suffer (rather than the usual actual fee recovery by the client). Even though the actual settlement was for much less, the issue squarely focuses on the validity of this unusual contingency fee agreement—with an arbitrator sustaining the fee award based upon a percentage of the estimated damages (although the estimate was much lower than that requested by plaintiffs). The defense has argued that a fee based on a damages estimate is not proportionate to the value of services performed, generating an arbitrary fee. In contrast, plaintiff argues that the fee was reasonable because the property—a contaminated site—was difficult to value and lawyers should not be punished in negotiating creative solutions with clients in difficult situations.
So, we assume you will need to tune in for a future post to see what happened in this case.