cOnSideratiOnS fOr cOnStructiOn litigatiOn fee diSputeS
Construction law Section
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the prevailing party plaintiff was awarded less than 15 % of the attorneys’ fees sought in its motion for fees against the lone defendant against whom a judgment was entered. The Court gave two reasons for the significant cuts.
First, the claims the plaintiff prevailed on against the nonsettling defendant were not“ inextricably intertwined” with the claims against the two settling defendants. To satisfy this requirement, the prevailing party would need to demonstrate that the“ determination of the issues in one action would necessarily be dispositive of the issues raised in the other.” Since each defendant provided services at different times, under different circumstances, and under different scopes of work, the Court concluded the claims lacked a“ common core.” Accordingly, prevailing against one defendant would not be dispositive of the claims against the others, so they were not“ inextricably intertwined” for the purposes of a fee award.
Second, a number of the prevailing party’ s time entries were vague or duplicative, and amounted to block billing. Plaintiff seemed to concede this point and attempted to minimize the impact on its fee claim by proposing through expert testimony a 15 % blanket reduction to its fee claim. But the Plaintiff’ s proposal was rejected as blanket reductions are improper( and may be reversible error). Rather, each specific billing entry must be reviewed and addressed individually.
This opinion provides some key takeaways when preparing for a fee fight. Among them:
1) If there is fee entitlement on only some of the claims at issue, before the hearing, present thorough analysis regarding whether the fee shifting claims are“ inextricably intertwined” with any of the others
( e. g., result from a common set of facts, are determinative of each other, etc.);
2) If any claims are arguably not“ inextricable intertwined” with the fee-shifting claims, provide a defensible allocation between the fee shifting claims and the other claims before the fee hearing; and
3) Specifically address each individual time entry which is arguably objectionable( e. g., vague, administrative, duplicative, contains multiple tasks without allocation of the time spent on each, etc.). n
Author: Richard N. Asfar- Adams & Reese LLP
register now for the construction Law section’ s upcoming luncheons on Jan. 15 and feb. 19.
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