$6 Million Fee Award Will Be Reassessed.
For all of your folks involved in public interest cases, the next decision is a good one to review in the private attorney general fee area.
Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection, Case Nos. A108410/A108478 (1st Dist., Div. 5 Nov. 19, 2010) (certified for partial publication) involved a situation where two litigants successfully challenged various lumbering approvals, eventually winning almost a combined $6 million in fees, inclusive of a 2 times multiplier, under California’s private attorney general statute (CCP § 1021.5). However, the California Supreme Court took review of the case, affirming and reversing on certain issues. The losing litigants challenged the fee awards, with the Court of Appeal agreeing that the matter had to be remanded to gauge fees in relation to the final outcome of the underlying litigation.
However, the appellate court did make some interesting calls after that.
· The appellate court decided it could just as well decide the significant benefit element of section 1021.5;
· The lower court would be incorrect to use a "net significant benefit" analysis, or balancing of the equities approach, on the significant benefit element of 1021.5;
· The litigation did result in a significant benefit when the total circumstances were reviewed;
· The lower court should consider whether a reasonable settlement offer could have avoided a lawsuit on the private enforcement necessity element;
· The lodestar did not have to be reduced for unsuccessful efforts because, by and large, these efforts were related, although a common administrative record and common procedural history alone would not establish relatedness; and
· The lodestar could be based on higher San Francisco attorney hourly rates given that local counsel did not have the specialization to litigate the case.
This is a very detailed, eloquently-written opinion in this area of jurisprudence—even if you disagree with it.