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A rare request for Supreme Court fees

In a highly unusual plea in the Supreme Court, the two trade groups for the video game industry asked the Justices on Monday to require the state of California to reimburse industry lawyers for $1,144,602.24 (a figure that may later be increased) for legal fees and expenses — the professional costs of winning a major First Amendment victory in the Court.

Among the items of expenses listed was a figure of $23,979 that the industry paid to three well-known advocates to conduct a “moot court.”   The text of the fee motion is here.

Ordinarily, the custom in American law is for each side to pay its own legal fees in a lawsuit.  However, federal laws, including a civil rights law relied upon in this new motion, sometimes allow a “prevailing party” to recover its fees from the losing side.  The Supreme Court’s own Rules do not specifically provide for such fee-shifting.

The standard manual on Supreme Court practice, popularly known as “Stern and Gressman,” however, says explicitly that these federal fee-shifting laws “may encompass attorneys’ fees incurred in connection with Supreme Court cases.”  The manual cites a 1970 precedent, Perkins v. Standard Oil, as directing a lower court — when the case was returned there — to consider a possible fee shift for the Supreme Court work.

Fee-shifting requests are very common in lower courts, especially in civil rights cases.  One theory behind such awards is that attorneys should be encouraged to take on legal cases that might advance civil rights, when such cases may not produce a very large dollar verdict.  Another theory is that the government, which normally enforces civil rights laws, has only limited legal resources and can use the aid of so-called “private attorneys general.”

The new motion was prompted by the Court’s 7-2 ruling at the end of last Term in Brown v. Entertainment Merchants Association, et al. (08-1448), striking down a California state law that banned the sale or rental of violent video games to minors.  The fee request was on behalf of the Entertainment Merchants Association and the Entertainment Software Association, the winners.

It noted that the industry has already recovered its fees and expenses in lower federal courts — $276,000 plus interest in District Court and $94,000 in the Ninth Circuit Court.

The tone of the new motion is somewhat accusatory.  “California,” it said, “ persisted in defending a law that [the industry] warned the Legislature was unconstitutional before it was passed; that was previously found to be unconstitutional by the district court and a unanimous panel of the Ninth Circuit and that is similar to at least eight other laws invalidated as unconstitutional prior to the time that California sought certiorari in this case.  Despite all of this, California chose to seek further review in this Court, and this Court has now confirmed the act’s unconstitutionality.”

The motion spelled out the basis for the claim, at this point for a total of $1,144,602.64, but noted that the motion was “subject to a supplemental filing containing the not-yet-billed 2011 fees and expenses, almost all of which are associated with the fees and expenses incurred in preparing this motion.”

The request includes $53,472.50 in attorneys’ fees for 2009 and $1,028,152.88 in such fees for 2010, for attorneys and staff at the Jenner & Block law firm.  It seeks $23,979 for the amount it paid to former U.S. Solicitors General Paul D. Clement and Theodore B. Olson and First Amendment specialist Lee Levine  to conduct a “moot” court to prepare the legal team for the Supreme Court argument.  “The fees charged by these firms were based on the standard billing rates they customarily charge clients and encompassed only the handful of hours required to review the briefs and participate in the moot court.  As such, these fees are entirely reasonable.”

In discussing the fee charges for Jenner & Block attorneys, the motion is based on the standard market rates they charge — the so-called “lodestar” amount — with no add-ons, even for the firm’s expertise in the First Amendment area of the law.

The motion seeks $38,998.26 to reimburse for actual out-of-pocket expenses.

The motion cites no Supreme Court ruling directly ordering a fee shift in a case before the Justices.  The Supreme Court cases referred to in the filing are about fee-shifting in general, and when it is justified.

Presumably, the Supreme Court has the authority to order a fee shift, or to pass the motion down to the Ninth Circuit Court or the District Court to consider.   It is unknown whether the fact that the Supreme Court agreed to hear the state’s appeal — something it had the discretion not to do — would play a part in its consideration of the motion.

Because the Supreme Court seldom is asked to shift fees in cases before it, the Justices may be a bit surprised at how high those fees can go when well-compensated, experienced lawyers are involved, and bring with them a sizable team of associates.  Lower courts, of course, routinely are faced with often pricey fee requests.

Recommended Citation: Lyle Denniston, A rare request for Supreme Court fees, SCOTUSblog (Jul. 25, 2011, 10:06 AM),