Brother Prevailed on Key Issue—Continued Possession of Store Space in Downtown Cincinnati.
Larry Flynt is back in the news. Through a company named Hustler Cincinnati, he brought a forcible entry and detainer action to evict his brother Jimmy Ray Flynt’s store (Cincinnati Hustler on Elm Street) from space in downtown Cincinnati. Larry lost, and the lower court granted Jimmy’s counsel’s request to recoup $170,652.75 in attorney’s fees based on a broadly worded fees clause in the lease.
The appeal of the fee recovery to the Ohio First Appellate District did not disturb the award in Hustler Cincinnati v. Elm 411, LLC, 2014-Ohio-5648 (Appeal No. C-130754, 1st App. Dist., Ohio) (Dec. 24, 2014).
Jimmy Flynt’s store did prevail on the key issue of possession, with fees incurred on interrelated claims being fair game for inclusion under the circumstances. The lodestar hourly rates–$250 for a partner and $175 for an associate—were deemed reasonable for commercial litigators in the Cincinnati legal community, with expert testimony supporting the ruling. Although the lower court did indicate the fees were somewhat high, they were reasonable given that the litigation occurred over the space of a few years. (By the way, Ohio law is not much different that California law as far as fee clause interpretation, discretionary apportionment one way or the other, and lodestar fee proof necessary to justify claimed hourly rates/work effort substantiation.)
BLOG UNDERVIEW—Boy, how time passes by. Larry Flynt is now 72 years old. He was paralyzed as a result of a 1978 shooting by a sniper near a Georgia courthouse where an obscenity case was ongoing. Larry was also arrested for shouting obscenities at SCOTUS, but later discharged, in 1983. He also garnered lots of publicity for wearing the American flag as a diaper in a court proceeding during his colorful career. Woody Harrelson played Larry Flynt in the eponymously named movie.