Friday, September 13, 2013

Gonzalez v. City of Maywood (9th Cir. - Sept. 9, 2013)

This is a civil rights attorney's fees case.  How much should the plaintiffs' lawyers receive?

Plaintiffs themselves received $500,000 total (as part of a settlement).  Plaintiffs are thus entitled to move for fees, and the parties have stipulated to a cap of $1,000,000 (plus a cap of $25,000 in fees-on-fees).

Plaintiffs allege a lodestar of around two million, and request the full million dollar cap.  The district court is very displeased with the fee application, awards around $475,000.  The Ninth Circuit reverses.

I must say that it's sometimes difficult as a judge to "explain" why you're picking a certain figure for your "fee haircut" rather than a different figure.  Sometimes it's like obscenity:  You know it when you see it when an attorney is billing an absurdly inflated amount, but you can't really explain with particularity why you think it's inflated by 60% as opposed to 50% or 30%.  You just know what you know.

The Court of Appeals nonetheless understandably requires district courts to try their best.  And Judge Wright's apparent best here simply wasn't good enough.  At least for the Ninth Circuit.

I'll give two predictions about this case.  One testable, the other not.

The testable one first.  I predict that, on remand, Judge Wright does one of two things:  (1)  He awards the exact same figure.  Or nearly the exact same.  Just with more detailed explanation.  And that, thereafter, the Ninth Circuit will affirm.  Or (2)  He awards plaintiffs nothing.  The "throw up the hands" approach.  That's a permissible response.  He might well even get affirmed were he to do so. But I think that, upon reflection, he will be sufficiently worried about being reversed, and the case remanded to a different judge, who will award the full million, that he'll do (1) instead.

See if I'm right.  At least if the case doesn't settle upon remand.  Which -- another testable hypothesis -- I do not think it will.

Second prediction.  Not testable:

Normally you don't remand to a different judge.  But I saw in the caption that the district court judge was Judge Wright, and then read what he said at the oral argument.  Normally, those two things get a remand to a different judge.  Which is what plaintiffs indeed request of the Ninth Circuit.

But I also saw that the opinion was written by Judge Randy Smith.  At which point I predicted that the case would not, in fact, get reassigned.

I was right.  Not reassigned.

But my nontestable claim is that at least a third of the panels on the Ninth Circuit would have reassigned this case to a different judge.

Let's see what happens on remand.