Wednesday, August 24, 2011


It's an axiom of employment discrimination cases that plaintiffs who win get their attorneys' fees as part of a damage award.  In fact, frequently the attorneys' fees are as much or more than the back pay and other compensatory damages recovered by the plaintiff. Most employment statutes do not provide for recovery of attorneys' fees if the company prevails, an inequity that frequently grates on my clients when we are discussing litigation strategy. During these discussions, I often hear general counsel bemoan the fact that American courts do not operate under the rules applicable in English jurisprudence, where the loser usually pays the other sides attorneys' fees, as well as the traditional costs associated with depositions, photocopying, filing fees, etc.
Title VII of the 1964 Civil Rights Act, however, allows for the prevailing party to seek attorneys' fees. Given the financial inequities between the parties, courts are normally loath to award attorneys fees to a prevailing company unless the employee plaintiff either brought her case in bad faith, or had virtually no evidence to support her claims. Some courts consider it "bad form" for a prevailing company to go after a former employee for attorneys' fees in this situation, in fact. But more and more, especially given the extremely high cost of litigation, companies are looking to ways to recover anything they can from an unsuccessful employment plaintiff. This is especially true when the plaintiff's demands are so significant (or extravagant) that settlement is virtually impossible, or when the case has been extensively litigated in the media, where the company has virtually no chance to fight back without looking even worse than it does already.
So it shouldn't be a surprise that defense contractor KBR, which had been publicly raked over the coals for the last 5 years in a highly publicized case involving claims by a former employee of rape, hostile work environment and gender discrimination, is going after fees from the individual plaintiff after the company prevailed in a jury trial. The plaintiff sought $145 million in damages, and took her case to the media and Congress in an effort to force the company to pay.
KBR is now asking for more than $2 million in legal fees and court costs of $145,000. Plaintiff's counsel, of course, is crying "foul", and while I'm sure he didn't expect to lose completely, at some point he must have advised his client that she was facing a significant financial risk if things didn't go as planned. He's also claiming that this is an effort by KBR to chill people from bringing legitimate claims. But from my perspective, if KBR successfully recovers just its costs, the knowledge that plaintiffs have some financial exposure themselves will go some way to making settlement of these types of cases a little more likely.

UPDATE:  And, BAM!  This will be an expensive lesson in US jurisprudence, although not nearly as bad as it could have been.

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