• March 18, 2010

Plaintiff Willcox brought an ERISA case against Liberty Life Assurance Co. of Boston and she won on summary judgment. The case went up on appeal.  Plaintiff prevailed on that appeal.  Then, when the case went back down to U.S. District Court Judge Paul Magnuson (D. Minn.) for a statutory award of attorneys’ fees for the prevailing plaintiff, the district court “zeroed” the plaintiff on fees.  (Denial of the petition for attorneys’ fees is here.)

In the decision, Judge Magnuson chided plaintiff’s counsel for his “vitriolic argument.”  Earlier, the Judge had cautioned the plaintiff’s lawyer for his “threatening and venomous” language.

Counsel for Defendant Liberty Life sets out the nature of plaintiff’s counsel’s “venomous” language on pages 22-29 of their brief. Plaintiff’s counsel suggests that, to the extent the fee award was denied due to this “vitriolic” language, this would be in the nature of a sanction, which would usually provide for due process and opportunity to be heard (not provided here) (her brief is here).  To the extent the claimed fees were excessive, Plaintiff’s counsel argued, they should be reduced, not eliminated.  (The case was argued before the U.S. Court of Appeals for the Eighth Circuit on March 10 (Case No. 09-2363.)

Plaintiff’s counsel also suggested that the comparison of a $200,000+ fee petition and a $14,800 award was deceptive because the award was for disability benefits, on-going in nature.

Ultimately, there is a fairly important message here for Minnesota civil litigators:  Judge Magnuson is not unique among the federal bench in Minnesota (and in Minnesota courts, generally).  The bench here generally has little tolerance for “scorched earth” litigation tactics or unnecessarily combative and antagonistic lawyering; bombastic counsel should proceed with caution.

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