Second District, Division 7 Gives Us Another Poof! Example.
For those of you following this blog, you know that we have a category “POOF!” This is where we survey cases that show hefty fee awards usually get reversed when the supporting merits judgment is reversed, vacated or modified. Here is another one.
In Bioquest Venture Leasing Co.-A, N.V. v. VivoRx Autoimmune Inc., Case No. B201454 (2d Dist., Div. 7 Nov. 5, 2009) (unpublished), plaintiff obtained a $2,575,448 merits judgment against defendants, followed by an award of attorney’s fees in the amount of $900,000 (out of a requested $1,280,114.50 in fees).
You can guess what happened on appeal. The Court of Appeal reversed the merits judgment because the lower court erroneously applied a longer Massachusetts statute of limitations rather than the correct California statute of limitations with a shorter fuse. How did that impact the fee award? You are right again, readers; the fee award challenge was rendered moot because it, too, went POOF!
BLOG UNDERVIEW—This case also supports our Mission Statement about how attorney’s fees can be the real battle in many civil litigation cases. The requested fees by plaintiff were almost half of the ultimate award. Although litigants unquestionably have a right to go to trial, this does seem to support the old axiom that a bad settlement is always better than a good trial. Or, as Samuel Butler put it, “[i]n law, nothing is certain but the expense.” If any of you readers know the origins of the settlement axiom, let us know and we will post a follow-up on your research.