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California courts highlight attorneys fees in anti-SLAPP suits

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  1. Libel and Privacy

    NMU         CALIFORNIA         Libel         Mar 13, 2001    

California courts highlight attorneys fees in anti-SLAPP suits

  • A defendant may have adversary pay attorneys fees in pro bono cases and at an adjusted hourly rate to compensate for intricacies of the case.

Two California courts recently underscored a defendant’s rights to attorneys fees in SLAPP lawsuits. In Ketchum v. Moses, the California Supreme Court ruled on Feb. 26 that a successful defendant was entitled to recover attorneys fees under a formula based on the local hourly rate. In an unpublished decision, Rosenaur v. Scherer, the California Court of Appeal in Sacramento (Third District) ruled on March 6 that attorneys fees were warranted even where defendant’s counsel was working pro bono.

SLAPP is an acronym for “strategic lawsuit against public participation.” Anti-SLAPP laws protect persons from lawsuits brought primarily to chill the valid exercise of free speech. California is one of 16 states that has anti-SLAPP legislation.

Under the California anti-SLAPP statute, attorneys fees are granted to a defendant who prevails on a special motion to strike the plaintiff’s lawsuit. To escape the motion to strike a plaintiff must prove that he probably will prevail.

In Ketchum, the Supreme Court ruled the lodestar adjustment method was the appropriate measure of recovery of attorneys fees. Under the lodestar method, the court determines the local prevailing hourly rate for attorneys and multiplies it by the hours worked on the case. That figure is then adjusted according to several factors, such as the novelty of the legal issues, the skill required to complete the case, and the contingent nature of the fee award.

In Rosenaur, the appellate court was called to answer whether the law’s provision that attorney’s fees and costs may be “recovered” included situations where defendant himself was not liable for the fees and costs. Prior to this case, there was no California case law directly on point.

The court in Rosenaur construed the statute as containing no distinction between recovery of fees for which the defendant himself was liable and recovery of fees paid for on behalf of defendant. The court also reasoned that because an attorney was an agent of his client, the statute could be applied to situations where the attorney had accrued costs or fees on behalf of the client.

(Ketchum v. Moses; Media Counsel: Charles B. Renfrew, Lieff, Cabraser, Heimann & Bernstein; Rosenaur v. Scherer; Media Counsel: James Houpt, Orrick, Herrington & Sutcliffe) DB


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