On November 14, 2012, the Second Circuit court of appeals upheld the award of $290,997.94 in costs, of which $286,065.00 were attorney fees, in a case with a $30,000 judgment for plaintiffs.

Deja Barbour, Shinnel Gonzalez and Rakayyah Massey were leaving a diner in White Plains, New York early in the morning when they saw a friend being first questioned, then roughly arrested by White Plains police officers. When they asked why their friend was being treated so roughly, they were roughly arrested, allegedly using excessive force. Barbour was charged with "Obstructing Governmental Administration and Resisting Arrest" while Gonzalez and Massey were charged with "Assault on a Police Office" and related offenses. Barbour and Gonzalez were acquitted at trial and Massey's case was dismissed during trial. They then filed a federal civil rights action pursuant to 42 U.S.C. §§ 1981 and 1983 alleging, among other things, false arrest and malicious prosecution and seeking damages, costs and attorney fees.

Thirteen days before trial, defendants made offers of judgement pursuant to Rule 68, Federal Rules of Civil Procedure. The offers were to settle all claims arising from the incident for $10,000 per plaintiff. The plaintiffs accepted the offers, then immediately filed for attorney fees of $267,295.00 and costs of $13,645.44.

Defendants did not oppose the hourly rate of the attorney fees or the number of hours expended on the case. Nonetheless, the court engaged in a detailed lodestar calculation and awarded $290,997.94 in fees and costs, including additional fees and costs to defend their original fees and costs.

Defendants appealed, raising two issues: whether the Rule 68 offer included costs and attorney fees and whether the amount of attorney fees had to be proportionate to the damages awarded.

The Second Circuit held that the argument in the first issue was foreclosed by the Supreme Court's decision in Marek v. Chesny, 473 U.S. 1 (1985). Because costs and fees were not specifically included in the Rule 68 settlement offer, they were not included in the judgment.

Defendants had equally little traction on the second issue. The Second Circuit noted that it gave great deference to district courts on the issue of attorney fees, that the defendants' argument was unsupported by citation to legal authority and that they had failed to challenge the hourly rate or number of hours worked before the district court. Further, the $30,000 recovery was not "nominal" as defendants claimed and the court had "repeatedly rejected the notion that a fee may be reduced merely because the fee would be disproportionate to the financial interest at stake in the litigation." Therefore, the Second Circuit affirmed the judgment, including the award of attorney fees and costs.

Plaintiffs were represented by New York attorney Michael L. Spiegel on appeal with Scott A. Korenbaum on brief. Doubtlessly, defendants will now have to pay their fees and the costs of appeal as well. See: Barbour v. City of White Plains, 2d Cir., No. 11-2229.

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