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Last year, two animal rights activists got a federal judge in San Jose to issue an injunction safeguarding their right to protest the circus without interference by police or private security. But the court order didn’t help pay their legal bills � until now. In a decision filed Wednesday, U.S. District Judge James Ware granted a request by plaintiff lawyers to recover attorneys’ fees and costs. San Francisco’s Gonzalez & Leigh has already asked (.pdf) for nearly $640,000 in fees, plus about $11,000 in costs, but Ware said he would decide on a “reasonable” fee amount next month, after a magistrate judge reviews an itemized list. The question turned on which side actually prevailed in the case. The plaintiffs went to trial and each won $2,400 in damages, according to court papers. But before trial, HP Pavilion had offered to settle the dispute for $5,000 apiece. Defense attorneys for HP Pavilion Management, operator of a venue that hosts the Ringling Bros. and Barnum & Bailey circus, opposed the fee request by pointing to federal Rule 68. Under that rule, if plaintiff lawyers don’t get a final judgment that’s “more favorable” than the settlement they turned down, they can’t make the defense pay for litigation costs racked up after it was offered. The settlement offer from HP Pavilion had included an agreement to let protesters roam in certain areas when the circus came to town. But the protesters wanted more freedom, including the right to distribute leaflets at the north entrance of the convention center. The judge noted in Wednesday’s ruling (.pdf) that the injunction, the “primary focus” of the plaintiffs’ case, made the final judgment more favorable for the activists. “Winning the privilege to conduct expressive activities at the north entrance without injunctive restrictions was a significant victory,” Ware said in his decision in Bolbol v. HP Pavilion Management, 04-00082. Thomas Murphy, a senior attorney at San Jose’s Berliner Cohen who represented HP Pavilion, said it’s premature for his firm to react to Ware’s ruling because the judge hasn’t approved the final amount for fees. But Murphy took issue with Ware’s finding that the injunction made the final judgment more favorable than a $5,000 settlement offer. “What it comes down to is trying to compare apples to oranges, injunctive versus monetary relief,” Murphy said, adding that he thinks it would be an issue of first impression if the case were to go up to the Ninth Circuit U.S. Court of Appeals. The plaintiffs’ lawyer, G. Whitney Leigh, said he knew as soon as last year’s trial concluded that the Rule 68 settlement offer would continue to be a disputed issue in the case. In his fee motion filed in April, Leigh didn’t try to fix a monetary value on the injunction. Rather, he argued that it provides “much broader and substantively superior free speech rights than what was offered” by HP Pavilion. On Wednesday, Leigh said that had Ware gone the other way in deciding who had prevailed, the defense could have tried to recoup some of its litigation costs from his clients. “From the clients’ perspective,” he said, “everything that mattered happened today.”

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