Costs and Attorney’s Fees

February 25, 2014 turned out to be an interesting day for employment lawyers for two separate appellate courts issued opinions concerning the recovery of costs and attorney’s fees to the prevailing parties in FEHA cases. Both cases involved victorious defendants seeking reward for their hard-fought victories against former employees. In one case, the court awarded the losing plaintiff to pay a portion of defendant’s attorney’s fees and in the other case, the court denied defendant’s shameful grab for costs.

The Stanford Case – attorney’s fees

In this case, a former employee of Stanford University sued Stanford for racial discrimination. See, after harassing a co-employee so much that she was forced to seek a restraining order, the smart folks at Stanford decided to fire the harasser.

Being a self-described American Indian, the harasser turned plaintiff sued Stanford alleging he was fired because of his race and all of that harassment stuff which led to a restraining order was simply pretext for Stanford’s racial discrimination.

The problem is plaintiff had no evidence of racial discrimination. The case went to trial (I don’t know if Stanford filed a motion for summary judgment) and plaintiff lost.

Having been stung by accusations of racial discrimination by an obviously troubled plaintiff, the smart folks at Stanford figured retribution was in order and decided to ask the trial court for an award of attorney’s fees under the prevailing parties section of FEHA.

The court awarded Stanford $100,000 in attorney’s fees because, it said, plaintiff’s case against Stanford was “…without merit, and was frivolous and vexatious.”

It was” said the court, “a legal theory in search of facts.” Ouch!!

The appeal followed and plaintiff said he was destitute and could not find a job and so, he argued, he shouldn’t have to pay Stanford’s legal bills.

Wrong! The court held the attorney’s fee award to Stanford was appropriate, even though plaintiff was broke and the trial court did not make express written findings in support of the award.

Seems right to me, just another heretic plaintiff’s attorney.

Robert v. Stanford University, 2014 Cal. App. LEXIS 178.

The Foster Farms Case – Costs

This case came down from high above – the Ninth Circuit.

Foster Farms, the chicken company which has recently had problems with sanitation at some of its processing plants, known for employing low wage-earners, many of whom speak little if any English, fired an employee after she left to go to Guatemala to visit her ill father.

Plaintiff sued Foster Farms alleging violations of the California Family Rights Act and the FMLA. Plaintiff lost at trial in a case where there were multiple fact issues about whether she was off on leave or expressly refused protected leave and then was gone too long and poor old cash-strapped Foster Farms decided it just had to let her go.

Not satisfied enough to defeat a poor woman who only earned approximately $11,000 per year after 18 years of employment, Foster Farms’ attorneys, who probably billed close to $11,000 for each day of the trial, decided to go after plaintiff for costs of trial of $21,703.31. The gracious court clerk then reduced the amount to $13,958.16.

Ignoring Foster Farms’ plea to “Choose Humane“, figuring that probably just applies to chickens and not people, defense counsel persisted in squeezing blood from this poor woman but the trial court held firm and said NO.

Ignoring Foster Farms’ declaration that “human rights are a worldwide corporate responsibility“, defense lawyers, probably billing much more than $13,958.16 to appeal the case, appealed the case anyway because they still smelled blood.

Fortunately, the Ninth Circuit justices said NO. The court noted the plaintiff would be indigent if she had to pay the costs. Most importantly, the court found the case was a close-call because the issues were “close and complicated.” The court also supported the district court’s conclusion that taxing costs in cases like this would have a chilling effect on important FEHA cases like this.

Plus, awarding costs to defense counsel just wasn’t the humane thing to do, so the Ninth Circuit chose humane, and Foster Farms and their lawyers will simply have to eat the costs. How inhumane is that?

But that shouldn’t bother the wonderful folks at Foster Farms since their “people” are their “biggest asset.” That’s why FF strives to “provide them with an enjoyable atmosphere, a clear sense of individual direction and worth…” Unless your father in Guatemala is ill and you get entangled with Foster Farms HR bureaucracy.

Oh brother.

Seems like the right decision to me!

Escriba v. Foster Poultry Farms, Inc., 2014 U.S. App. LEXIS 3571.

So just like that, two decisions in one day. Some days are just better for justice than others!



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