After copious litigation, plaintiffs challenging San Francisco Bay Area transit policies as racist were beaten at a bench trial earlier this year.
Then, in a move that struck some plaintiffs lawyers as uncommonly aggressive, the Metropolitan Transportation Commission asked Magistrate Judge Elizabeth Laporte to award up to $1.5 million in attorney fees.
Victorious plaintiff lawyers routinely seek statutory fees in class actions and other civil rights litigation, but defense attempts are much less numerous. Yet a small cluster of defense moves like the one before Laporte has lawyers like Brad Seligman of the Impact Fund worried.
"You get one award like this, a $1 million award, or even a $100,000 award, and you're telling any of these nonprofit or civil rights organizations you've got to be crazy to bring these cases," Seligman said.
The Impact Fund filed an amicus curiae brief against the MTC fee motion, and Laporte eventually denied fees.
Two other similar attempts have been made this year. On Aug. 10, Judge Steven Brick of Alameda County, Calif., rejected a motion by the Association of American Medical Colleges to recover from plaintiffs who alleged they did not receive proper accommodations for the MCAT test.
Earlier this year, Chevron generated headlines when it sought about $500,000 in costs from a group of Nigerian villagers who had unsuccessfully brought wrongful death claims against the oil giant. Northern District of California Judge Susan Illston turned down Chevron's motion.
For a defendant to win fees in federal civil rights litigation, it must prove the plaintiff brought a frivolous or groundless suit. The MTC carefully structured its fee request to address those portions of the case it felt were without merit, said Kimon Manolius, a partner at Hanson Bridgett who represented the commission.
The MTC wasn't trying to send a broader message, he said.
"It's a tough call. It's never an easy decision," Manolius said regarding defense fees. "We do a lot of work for public entities. It's taxpayers' money, that's [the issue] we get into. We're forced to defend these on behalf of the taxpayers."
While the MTC argued that plaintiffs Amalgamated Transit Union 192 and Communities for a Better Environment had the ability to pay -- based on multimillion-dollar settlements the plaintiffs had reached in other cases -- Laporte found that only a small portion of those dollars actually reached the groups.
In addition, it was not obvious that the plaintiffs brought a frivolous suit -- especially since many of the issues survived pretrial motions, according to the magistrate judge.
"This case raised complex questions of fact and law with no legal authority directly on point," Laporte wrote.
Robert Mittelstaedt, the Jones Day partner who defended Chevron in the Nigerian case, pooh-poohed any idea of a conspiracy among defense lawyers to ramp up the fight for fees. But he does think defendants are well within their rights to seek fees or costs when they win.
"What will it take to get courts comfortable awarding, if not the entirety of costs, then at least a proportionate amount?" he said. "There should be at least some incentive for the plaintiff to think about a downside."
For Mittelstaedt, an ideal solution would be for legislators to allow defendants to go after plaintiffs attorneys for costs, instead of plaintiffs themselves, on the logic that it is the lawyers who often advance costs to further the suit. He doubts such a proposal could gain traction, however.
A variation on that theme did emerge recently in the case surrounding the medical tests. Plaintiff medical school applicants and the International Dyslexia Society won an injunction and nearly $2 million in fees and costs, but the court of appeal threw out the judgment.
On remand, it was the defendants' turn: AAMC sought $1.6 million for fees.
"In all of my experience in the public interest practice, which is now 40 years, I've never seen anything like what AAMC tried here," said Sidney Wolinsky, litigation director at Disability Right Advocates, one of the students' co-counsel.
After the plaintiffs themselves pleaded poverty, AAMC questioned whether the legal advocacy groups had indemnified them, and therefore could be on the hook for fees, according to court papers. But the lawyers asserted that they had made no promises.
Brick eventually turned down AAMC's fee request.
According to Wolinsky, the plaintiffs had an excellent relationship with opposing counsel Robert Darby of Fulbright & Jaworski in Los Angeles. Wolinsky believes the fee request originated from the client's animus.
A spokeswoman for the AAMC couldn't comment late Friday afternoon.
The public policy objective in making it easier for plaintiffs than defendants to recover fees is clearly meant to encourage civil rights litigation, not the opposite, said Alan Schlosser, legal director at the Northern California ACLU.
"The whole argument that what's fair for one side should be fair for the other is not really true," he said.
