Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Friday, March 18, 2016

Non-JD Program At Hamiline Law School in Cybersecurity and Information Privacy

 Gregory M. Duhl, Rolf and Nancy Engh Distinguished Professor, Mitchell Hamline School of Law writes to inform us of a new non-JD 13 week program which readers may find of interest. A description of the program is below:

The thirteen-week, intensive online certificate program in Cybersecurity and Information Privacy is designed for practicing lawyers who want to develop their privacy and information security expertise or expand their practice areas to advise clients on how cybersecurity law affects business operations.  It is also designed for executives or in-house counsel who need to identify and apply privacy and information security law to make effective decisions.  The program includes courses in information privacy, information systems, risk management, and data breach liability. Professionals who enroll in the program watch lectures from nationally recognized experts, participate in discussions, and complete practical hands-on exercises. The program description can be found here:


Mitchell H. Rubinstein

March 18, 2016 in Information, Law Schools | Permalink | Comments (3)

Sunday, March 6, 2016

Can Labor Turn Out The Vote

Readers may be interested in this NY Times article by former NY Times labor reporter Steven Greenhouse entitled Can Labor Still Turn Out The Vote. As the article states:

With its shrinking ranks, organized labor, which tilts strongly Democratic, was already struggling to compete with Republican-leaning “super PACs” financed by wealthy conservatives like the Koch brothers, who have vowed with their allies to spend $889 million on this election. Now the labor movement is being buffeted by another force: Donald J. Trump, whose attacks on trade deals, illegal immigrants, Chinese imports and the shifting of jobs overseas are winning over white, blue-collar workers.

Can a weakened labor movement still provide the money, voters and get-out-the-vote muscle to elect the Democratic nominee in crucial swing states, as it has in the past?


Mitchell H. Rubinstein

March 6, 2016 in Information, Unions | Permalink | Comments (1)

Wednesday, February 24, 2016

Professor Duff on Workers Compensation


Professor Michael Duff (Wyoming Law School) writes to inform us that he has recently posted on SSRN his new piece "Worse than Pirates or Prussian Chancellors: A State's Authority to Opt-Out of the Quid Pro Quo.", 17 Marq. Ben. & Soc. Wel. L. Rev (Summer 2016 Forthcoming). The abstract provides:

Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While there may be doubts in some quarters about the neutrality of arbitrators, reasonable doubts about the loyalties of an employer-appointed fact-finder are inevitable. Such a design would mark a decisive break with the quid pro quo/Grand Bargain of the early twentieth century, and there is a risk of some states getting caught up in a “race to the bottom,” where states not recognizing a right to a remedy for physical injury become havens of low-cost labor, and thus exert pressure on states that safeguard traditional rights to follow suit. The Supreme Court may be forced to intimate an opinion on the constitutional right to a remedy for personal, and especially physical, injury (whether within or outside of the workplace). The Court has not squarely addressed the issue since 1917, when it decided New York Cent. R. Co. v. White, a case originally upholding the constitutionality of workers’ compensation systems. In White, the Court hinted, but did not clearly establish, that the right to a remedy for physical injury may not be abolished without substitution of a reasonable remedy.

Mitchell H. Rubinstein

February 24, 2016 in Law Review Articles | Permalink | Comments (0)

Thursday, February 4, 2016

Kentucky Right To Work Municipal Ordinance Preempted By NLRA

UAW v. Hardin County, ___F. Supp. 2d ___(W.D. Kentucky, Feb. 3, 2016), is an important case.  Download Hardin County Order

A federal court held that a municipal ordinance which mandated right to work and limited union hiring halls and due-checkoff provisions was preempted by the NLRA. The NLRA, of course and most notably in Section 14(b), permits STATES to enact Right to Work laws. 

The decision, which spans 14 pages, is well written and provides a nice summary of the NLRA and existing precedent in this area. As the court explains:

Section 14(b) provides that nothing in the NLRA shall be read to authorize the execution or application of union-security agreements “in any State or Territory in which such execution or application is prohibited by State or Territorial law.” 29 U.S.C. § 164(b). As the plaintiffs observe, it makes little sense to read “State or Territorial law” as encompassing local law in light of the statute’s previous reference to “any State or Territory”—if “State or Territorial law” includes the laws of political subdivisions, then the statute must be read “in any State or Territory [or political subdivision thereof]” to avoid assigning two different meanings to “State” in the same sentence. This is not a logical reading; “[a] standard principle of statutory construction provides that identical words and phrases within the same statute should normally be given the same meaning.”

Law review commentary would be most welcome. 

Mitchell H. Rubinstein




February 4, 2016 in Labor Law, Law Review Ideas, NLRB, Recent Developments, State Law, Unions | Permalink | Comments (0)

Thursday, January 28, 2016

BLS Union Membership Stats Just Released

On January 28, 2016, the BLS released their annual statistics on union membership and the results are not pretty if you support unions, particularly in the private sector. Here.  Among the highlights:

•	Public-sector workers had a union membership rate (35.2 percent) more
	than five times higher than that of private-sector workers (6.7 percent).
	(See table 3.)

•	Workers in protective service occupations and in education, training,
	and library occupations had the highest unionization rates (36.3 percent
	and 35.5 percent, respectively). (See table 3.)

•	Men continued to have a slightly higher union membership rate (11.5
	percent) than women (10.6 percent). (See table 1.)

•	Black workers were more likely to be union members than were White,
	Asian, or Hispanic workers. (See table 1.)

•	Median weekly earnings of nonunion workers ($776) were 79 percent of
	earnings for workers who were union members ($980). (The comparisons
	of earnings in this release are on a broad level and do not control for
	many factors that can be important in explaining earnings differences.)
	(See table 2.)

•	Among states, New York continued to have the highest union membership
	rate (24.7 percent), while South Carolina had the lowest (2.1 percent).
	(See table 5.)

Researchers and scholars may find this information very helpful.

Mitchell H. Rubinstein

January 28, 2016 in Unions | Permalink | Comments (0)

Friday, January 15, 2016

Exotic Dancers Are Employees

Exotic Island Enterprises v. Commissioner of Labor, ___A.D.3d___ (3rd Dep't. Jan. 14, 2016), raises a whole host of legal questions for which law review commentary is welcome. 

Factually, the court held that exotic dancers are employees for unemployment purposes. Applying the right to control test, the court reasoned:

The corporations challenge the brevity and thoroughness of the investigation by the Department auditor, arguing that it was insufficient to establish that the dancers were employees. However, any evidentiary gaps in the initial investigation were filled through the testimony of Slifstein and the corporations' accountant at the hearing. Slifstein testified that the venues attracted new dancers by placing advertisements in trade magazines and newspapers. Before permitting a dancer to perform at the venues, he would inquire into their prior experience, ask them what schedule they would like, and assess their appearance. If a dancer was not physically fit, he would not permit them to perform at the venues. The dancers were required to provide a driver's license or other form of identification and would not be allowed to dance at the venue if they did not do so. If a dancer lacked experience, he would instruct them to observe a more experienced dancer in order to learn how to "move sexy." Although dancers were not required to report to work at any set time, upon advising the owner of their availability, they would be placed on a nightly schedule posted in the venue for the patrons to view. The venues set the prices that the dancers would charge patrons for private dances and retained a percentage of the money earned. Although the dancers provided their own makeup and costumes, the venue provided the stage for the dancers to perform on, sound equipment and, at times, the music accompanying the dances. The corporations' accountant also testified that the corporations carried workers' compensation coverage for the dancers. Thus, despite other evidence that may have supported a contrary result, we find the Board's decision that the corporations exercised sufficient direction and control over the dancers to be supported by substantial evidence (see Matter of Enjoy the Show Mgt. [Commissioner of Labor], 287 AD2d 822, 822-823 [2001]; see also Matter of Human Performance, Inc. [Commissioner of Labor], 28 AD3d 971, 972 [2006]).

If this is so and a dancer is sexually harassed, can they bring a Title VII case, an OSHA case is their is a safety issue etc. I would think so. 

Mitchell H. Rubinstein

January 15, 2016 in Employment Law, Law Review Ideas | Permalink | Comments (9)

Sunday, January 10, 2016

Doctor Unions

An interesting article in the Jan 9, 2016 NY Times about Doctor Unions can be found here. It addresses some of the personal and professional concerns that doctors employed by hospitals have. Doctors are employees like everyone else. While the article does not highlight the legal issues concerning doctor unionization, one of the major issues that some of them may face is a claim that they are supervisors. Undoubtably, some are, but many are not and they should be able to join a union just like anyone else.

Mitchell H. Rubinstein

January 10, 2016 in Unions | Permalink | Comments (0)

Saturday, December 26, 2015

2 Year Law School Degree Programs

Interesting December 25, 2015, NY Times article entitled The 2-Year Law Education Fails to Take Off, is available here

Personally, I am very much against these programs. While they may sound interesting on paper, it takes time to learn the law and even more time to learn legal research and writing. The number one, two and three problem that I see with law students today is that they do not have enough research and writing experience. The only way to learn it is to do it. I believe students will learn materially less is two courses are streamlined into one even though the amount of credit hours may remain the same.

What do you think?

Mitchell H. Rubinstein

Did you notice that this article was published on Christmas.


December 26, 2015 in Law Schools | Permalink | Comments (1)

Tuesday, December 15, 2015

99 Things to Do With Your JD, Besides Practice Law

Interesting Findlaw Article I just saw, here. Their first few examples are as follows:

99 Things to Do With Your JD, Besides Practice Law - Greedy Associates

  1. Public policy advisor
  2. Think tank contributor
  3. John Grisham

  4. Start a non-profit

  5. Demetri Martin
  6. Mayor
  7. High school political science teacher
  8. Public health graduate student
  9. President Obama
  10. Pastry chef
  11. Law firm recruiter
  12. Law school recruiter
  13. Loan officer
  14. Contract negotiator
  15. Human resources specialist

Mitchell H. Rubinstein



December 15, 2015 | Permalink | Comments (0)

Wednesday, November 18, 2015

On Peevyhouse v. Garland Coal & Mining Co.

Last week in class we discussed the famous case Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (1962).  The case involved a contract wherein the Peevyhouses allowed Garland to strip-mine on their farm property.  In lieu of the standard $3,000 up-front payment for surface damages, the Peevyhouses negotiated a clause requiring Garland to perform certain "restorative and remedial work" on the property after completing their mining operations.  Garland mined the property and extracted their profits, then breached the restoration provision.  The Peevyhouses sued for breach of contract.  The evidence at trial apparently provided the cost to perform the work would be $29,000 -- but that the diminution in property value resulting from the breach was only $300.  The jury split the difference, sort of, by awarding the Peevyhouses $5,000, an amount the Oklahoma Supreme Court declared to be "more than the total value of the farm even after the remedial work is done." 

The Oklahoma Supreme Court modified the judgment for the Peevyhouses, awarding $300 -- the value lost.  To say the least, the decision remains a controversial one.  In 2008, at PrawfsBlawg, Eric E. Johnson (North Dakota) conducted a survey to name "The Most Screwed Victims in Case-Law History."  Willie and Lucille Peevyhouse won that competition in a landslide.   Twenty years ago, Judith Maute published a comprehensive article on the case, Peevyhouse v. Garland Coal & Mining Co. Revisited:  The Ballad of Willie and Lucille in the Northwestern Univ. Law Review.  Maute's article is fascinating for many reasons, not the least of which is the section on the Oklahoma Supreme Court bribery scandal that followed the case.  Whether that scandal contributed to the Peevyhouse result remains, it seems, an open question.

Peevyhouse exemplifies the "economic waste doctrine" -- a contract law doctrine memorialized in the Restatement[1].  The doctrine finds its origins in Jacob & Youngs, Inc. v. Kent, 129 N.E. 889 (9121).  There, a homeowner sued the home builder for using Cohoes plumbing pipe when the contract required Reading brand pipe.  Reversing the trial court's decision to exclude diminution of value evidence, the Court held that cost to complete is the proper damages measure unless, "the cost of completion is grossly and unfairly out of proportion to the good to be attained.”  The defendant in Jacobs & Young appear to have the better of the argument -- in Peevyhouse, not so much (hence perhaps the result in Johnson's poll, above).  Scholars have written to distinguish the two cases and better define the economic waste doctrine's contours.  A good starting point is Carol Chomksy, "Of Spoil Pits and Swimming Pools:  Reconsidering the Measure of Damages for Construction Contracts," 75 Minn. L. Rev. 1445 (1991) (download link).

More recently, the Oregon Supreme Court discussed its economic waste doctrine at some length in Montara Owners Assoc. v. La Noue Development, Inc., 353 P.3d 563 (Or. 2015) in a case ultimately decided on harmless error grounds.  For its own part, the Oklahoma Supreme Court affirmed the Peevyhouse holding on certified question in  Schneberger v. Apache Corp., 890 P.2d 847 (1994).

Craig Estlinbaum

[1] Restatement (Second) Contracts, sec. 348, cmt. c (1981).

November 18, 2015 in Contract Issues, Interesting Cases, Remedies | Permalink | Comments (1)

Tuesday, November 17, 2015

Ohio State: Election Law Symposium

On Friday, November 2o, the Ohio State Law Journal is hosting "The History and Future of Election Law." According to their website:

There will be four panels: (1) The History and Future of Redistricting and Gerrymanders, (2) The History and Future of Campaign Finance, (3) The History and Future of Voting Rules and (4) The History and Future of Election Law Generally.

Craig Estlinbaum

November 17, 2015 in Conferences, Faculty, Law Review Articles | Permalink | Comments (0)

Law Reviews: New In Print

New York University Law Review, Volume 90, No. 4, includes articles and essays from the symposium, "Testing the Constitution," including:

  • Forward: Testing the Constitution (Lee Epstein, Barry Friedman & Geoffrey R. Stone)
  • Testing Shaw v. Reno:  Do Majority-Minority Districts Cause Expressive Harms? (Stephen Ansolabehere & Nathaniel Persily)
  •  Rhetoric and Reality: Testing the Harm of Campaign Spending  (Rebecca L. Brown & Andrew D. Martin)
  • Measuring That Chilling Effect  (Brandice Canes-Wrone & Michael C. Dorf)
  • The Decision to Depart (or Not) From Constitutional Precedent: An Empirical Study of the Roberts Court (Lee Epstein, William M. Landes & Adam Liptak)
  • Testing the Marketplace of Idea (Daniel E. Ho & Frederick Schauer)
  • Litigating State Interests: Attorneys General as Amici (Margaret H. Lemos & Kevin M. Quinn)
  • Student Notes and Comments

The University of Illinois Law Review, Volume 2015, No. 5, features a symposium, "Choice-of-Law Methodology: Fifty Years After Brainerd Currie," and other articles:

  • Regulating Mass Surveillance As Privacy Pollution: Learning From Environmental Impact Statements (A. Michael Froomkin)
  • Re-Assembling Labor (Marion Crain, John Inazu)
  • The Choice-of-Law Revolution Fifty Years After Currie:  An End and a Beginning (Symeon C. Symeonides)
  • Multistate Justice:  Better Law, Comity and Fairness in the Conflict of Laws (Joseph William Singer)
  • Remembering Brainerd Currie (Herma Hill Kay)
  • Hard Cases, Single Factor Theories, and a Second Look at the Restatement 2D of Conflicts (Lea Brilmayer)
  • A Radically Transformed Restatement for Conflicts (Louise Weinberg)
  • Eurpoean Conflicts Law After the American "Revolution" - Comparative Notes (Peter Hay)
  • Student Notes.

The University of Pennsylvania Law Review, Volume 164, No. 1, includes:

  • A National Study of Access to Counsel in Immigration Court (Ingrid V. Eagly and Steven Shafer)
  • Toward a Pigouvian State (Jonathan S. Masur and Eric A. Posner)
  • Anti-Trust in Zero-Price Markets: Foundations (John M. Newman)
  • Time to Drop the Infield Fly Rule and End a Common Law Anomaly (Andrew J. Guilford and Joel Mallord)
  • Student Comments

Craig Estlinbaum

November 17, 2015 in Law Review Articles | Permalink | Comments (0)

Sunday, November 15, 2015

Will Title VII Be Amended To Ban Discrimination Against Gays and Transgender Employees?

The Washington Post published an interesting article on November 11, 2015 stating that the Obama Administration is supporting an amendment to Title VII which would ban discrimination against homosexuals and transgender employees. Here.

Interesting, the Obama administration is not supporting enactment of a separate statute which has been introduced into Congress known as ENDA. I wonder why? I have not studied the differences, if any, between these two Bills. 

As the article points out, for years, LGBT community has been trying to extend the reach of the Supreme Court's Price Waterhouse decision on sexual sex-sterotyping to outlaw this type of employment discrimination. 

Whether as an amendment to Title VII or a free standing statute, enactment of such legislation is the next logical step after the Supreme Court decision on gay marriage. The only question in my mind is whether Congress will go beyond "same sex" discrimination and ban transgender discrimination as well. It is about time that they do.

Mitchell H. Rubinstein

Hat Tip:

Workplace Prof Blog




November 15, 2015 in Discrimination Law, Law Review Ideas | Permalink | Comments (0)

Thursday, November 12, 2015

Law Reviews: New In Print

Harvard Law Review, Volume 129, No. 1, features The Supreme Court 2014 Term, including:

  • Does the Constitution Mean What it Says (David A. Strauss)
  • Imperfect Statutes, Imperfect Courts:  Understanding Congress's Plan in the Era of Unorthodox Lawmaking (Abbe R. Gluck)
  • Zivotofsky II as Precedent in the Executive Branch (Jack Goldsmith)
  • A New Birth of Freedom?: Obergefell v. Hodges (Kenky Yoshino)
  • Leading Cases

The Harvard Law Review Forum includes responses from Richard H. Fallon, Richard T. Lazurus, Hon. Richard A. Posner and Lawrence Tribe.

Northwestern University Law Review, Volume 109, N0. 4, includes:

  • Purposivism in the Executive Branch: How Agencies Interpret Statutes (Kevin M. Stack)
  • Remote Adjudication in Immigration (Ingrid M. Eagley)
  • Student Notes and Comments

Craig Estlinbaum


November 12, 2015 in Law Review Articles | Permalink | Comments (0)

Saturday, October 31, 2015

Law Reviews: New In Print

South Texas Law Review, Volume 56, No. 3 (Spring 2015) includes:

  • The Limits of Consent: Voluntary Dismissals, Appeals of Class Certification Denials, and Some Article III Problems (William P. Barnette)
  • Just Visiting: Health Care Liability Claims and Nonpatient Injuries in a Health Care Setting (Brandon Beck)
  • Licensed to Steal:  Texas Private Property Towing Regulation and Consumer Remedies (Brian E. Walters, David M. Walters, Jennifer Shamas)
  • Everything is Presumed in Texas: Analyzing teh Application of the Presumption Against Preemption (Benjamin Walther)

Yale Law Journal, Volume 125, No. 1 (October 2015) includes:

  • Against Immutability (Jessica A. Clarke)
  • The President and Immigration Law Redux (Adam B. Cox & Cristina M. Rodríguez)
  • Which Way to Nudge: Uncovering Preferences in the Behavioral Age (Jacob Goldin)
  • Student Notes, Comments

Craig Estlinbaum

October 31, 2015 in Law Review Articles | Permalink | Comments (0)

Friday, October 30, 2015


Texas A&M Law Review will be live tweeting its Fall 2015 Symposium, "Farm to Table:  Agricultural Law in the Era of Sustainability," today on Twitter.  Look for @TAMU_Law_Review and the hashtag in the title to follow or send questions.

Craig Estlinbaum

October 30, 2015 in Conferences, CLE, Conferences, Faculty | Permalink | Comments (0)

Thursday, October 29, 2015

Void Judgments and Exceptional Circumstances

A Tennessee court granted Mother and Father's divorce in 2000.  Because Mother's was found to have a drug problem and was not visiting or contacting the children, the court denied Mother access to the children until she successfully demonstrated she was drug-free. 

Nine months later, Father filed a petition to terminate Mother's parental rights.  Father listed in that petition the formal marital home as Mother's address even though Father knew the court had divested Mother of any right or interest in the house in the divorce judgment and Father, who resided in the home, knew Mother did not.  Unable (predictably) to accomplish personal service, Father served Mother by publication, however, Father did not follow Tennessee's statutory requirements for such service.  Mother did not answer or appear and the trial court granted Father's motion for default judgment terminating Mother's parental rights.

In 2010, almost nine years later, Mother filed a motion to set aside the default judgment.  She asked the court to find the default judgment void for lack of personal jurisdiction.  The trial court determined that Father knew Mother did not reside at the marital residence when summons issued and made no attempt to locate Mother before resorting to service by publication.  The trial court set aside the default judgment and the intermediate appellate court affirmed the judgment.  The Supreme Court of Tennessee granted Father's permission to appeal.

Continue reading

October 29, 2015 in Civil Procedure, Family Law, Interesting Cases, State Law | Permalink | Comments (0)

UNH Law Review: Exclusive Submission

Alfred Brophy (North Carolina) reports at The Faculty Lounge that University of New Hampshire Law Review has opened an exclusive submission window for articles submitted by November 20.  See Brophy's full post here.

Craig Estlinbaum

October 29, 2015 in Law Review Articles | Permalink | Comments (0)

Friday, October 23, 2015

Law Reviews: New In Print

Fordham Law Review, October 2015 (Vol. 84, No. 1) includes six articles by Fordham faculty on the United States Supreme Court's June 2015 Obergfell v. Hodges decision and other articles:

  • Perspectives on Marriage Equality and the Supreme Court (The Editors)
  • The Power of Dignity (Elizabeth B. Cooper)
  • Obergefell's Conservatism: Reifying Familial Fronts (Clare Huntington)
  • Roberts, Kennedy and teh Subtle Differences that Matter in Obergefell (Joseph Landau)
  • Hail Marriage and Farewell (Ethan J. Leib)
  • Race, Dignity, and the Right to Marry (R. A. Lenhart
  • Up from Marriage:  Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality (Catherine Powell)
  • Procedural Triage (Matthew J. B. Lawrence)
  • The Sum of its Parts:  The Lawyer-Client Relationship in Initial Public Offernings (Jeremy R. McLane)
  • Student Notes

The New York Journal of Law & Business (Vol. 11, No. 4) includes:

  • Proceedings of the 2014 Fall Conference: The Future of Class Action Litigation: A View from the Consumer Class
  • Introductory Note (Peter L. Zimroth)
  • Welcoming Remarks (Zimroth, Dean Trevor W. Morrison)
  • Panel 1: The Current State of Consumer Class Action
  • Panel 2: Reforming the Consumer Class Action
  • Panel 3: Alternatives to the Consumer Class Action
  • Panel 4: Roundtable Discussion: Consumer Class Actions and the Future of the Class Action
  • Panel 5:  Keynote Address:  The Hon. Alex Kozinski, Chief Judge, U. S. Court of Appeals for the Ninth Circuit.
  • Article:  An Empirical Look at Consumer Class Actions (Brian T. Fitzpatrick & Robert C. Gilbert
  • Student Comments

Virginia Law Review, October 2015 (Vol. 101, No. 6) includes:

  • Patent Trolls and Preemption (Paul R. Gugliuzza)
  • Corporate Inversions and the Unbundling of Regulatory Competition (Eric L. Talley)
  • Taming Title Loans (Ryan Baasch)

Craig Estlinbaum

October 23, 2015 in Law Review Articles | Permalink | Comments (0)

Wednesday, October 21, 2015

When Both Sides Can Recover Attorney's Fees

The general rule in American jurisdictions does not permit a victorious party to recover attorney's fees or litigation costs from the losing party.  There are exceptions to this rule -- courts typically enforce fee-shifting provision in contract and most if not all states have statutes that allow prevailing parties to recover fees in some situations.  Some such statues provide for "one-way" fee shifting whereby only a prevailing claimant may recover fees.  Others are "two-way" fee shifting statutes allowing either plaintiff or defendant to recover. 

Courts have created rules on fee-shifting deisgned to achieve fairness and fidelity to the American rule, however, these rules can and have led to "a second major litigation," or to "years of protracted appellate review."  Perdue v. Kenny A., 559 U.S. 542, 572 (2010) (Breyer, J., dissenting).  One such rule requires attorneys to segregate attorney's fees and expenses between recoverable and unrecoverable claims.  For example, if a party sues in contract and tort in a jurisdiction that enforces a fee-shifting provision in the contract but does not provide for fee-shifting in tort, a prevailing plaintiff must segregate the nonrecoverable attorney's fees incurred solely to prosecute the tort claim from the recoverable fees incurred for the contract claim and fees incurred as to both claims.  See e.g., Tony Gullo Motors, Inc. v. Garcia, 212 S.W.3d 299 (Tex. 2006).  Likewise, when the prevailing party wins only in part, the party must segregate fees between the successful and unsuccessful claims to the extent fee-shifting applies as to the successful claims.  See Fox v. Vice, 563 U.S. 826 (2011).

What happens when each side in a lawsuit prevails in part with each party prevailing on a claim entitling it to attorney's fees pursuant to a fee-shifting provision?  A California court answered this question in Sharif v. Mehusa, Inc., No. B255578, 2015 W.L. 5969679 (October 14, 2015, Cal. Ct. App.).  In this case, the plaintiff prevailed on her state Equal Pay Act claim and the defendant prevailed on its plaintiff's overtime and wage claim.  Each party filed a motion for attorney's fees under the applicable statute.  The trial court awarded both sides its attorney's fees as to the claim upon which each prevailed,  with the plaintiff obtaining a small fees award after offset.

The California appellate court affirmed.  The court held that "when there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action."  Ms. Sharif argued that because she prevailed on the Equal Pay Act claim and received a money judgment on that claim, she was the "prevailing party," and was subject only to reduction in the fee claim for the unsuccessful overtime and wage claim.  The court agreed Sharif was a prevailing party in part, but added that Mehusa, Inc. was a prevailing party also as to a claim including a two-way fee shifting provision.  The court stated it made no sense for the defendant to be able to recover on the overtime and wage claim if the two claims here were brought in separate actions but not if the two claims were consolidated into one action.

We cover attorney fees recovery in our Damages class.  It is important for new attorneys to develop good habits about tracking time in cases, even when representation is for a flat or contingent fee.  I cannot imagine anything more mind-numbing (or more filled with ethical risks) than having to recreate an attorney's fees statement on short notice at a lengthy and complicated case's end.  Here is a recent essay with useful tips about substantiating attorney's fees in litigation.

Craig Estlinbaum

October 21, 2015 in Interesting Cases, Litigation, Remedies | Permalink | Comments (0)