$86,914.24 Fee/Costs Recovery Garnered By Risk Retention Group Goes POOF!
Although the federal civil rights statute (15 U.S.C. § 1988) has a broad fee-shifting statute, it does not aid a winning plaintiff if preemption of a state law is not a “right” free from state law for purposes of the civil rights fee statute.
Unfortunately, the winning plaintiff–a risk retention group (RRG)– found that out the hard way, which meant a $86,914.25 fees/costs award under § 1988 was vacated in Alliance of Nonprofits for Ins. v. Kipper, No. 11-16836 (9th Cir. Apr. 8, 2013) (published).
There, the Ninth Circuit panel found that the Liability Risk Retention Act, 15 U.S.C. § 3902(a)(1), was designed to increase the supply of commercial liability insurance nationwide, having a broad preemption clause and not conferring rights to RRGs under the three-part test in Blessing v. Freestone, 520 U.S. 329, 340-341 (1997). Given this reality that no “right” was conferred on the risk retention group, the fee/costs award went POOF! on appeal.