Recovering Attorneys’ Fees
In the Commonwealth of Virginia, along with most other jurisdictions in the United States, the default rule in litigation proceedings is that each party will bear the costs of their own attorneys’ fees, regardless of which side wins or loses. Any exceptions to this rule must be provided for either by a specific law allowing for the recovery of attorneys’ fees in certain causes of action, or by a contractual clause which provides for attorneys’ fees in any litigation arising from the contract.

A recent decision handed down by the U.S. District Court for the Eastern District of Virginia highlights the importance of carefully choosing your cause of action in order to maximize your chances of recovering your attorneys’ fees. In that case, a company brought suit against a former employee who had used her position of employment to sabotage the company’s servers, deleted data from her company-issued Blackberry, and sent unauthorized emails from her company-issued Blackberry. As a result, the company brought claims under the Virginia Computer Crimes Act (“VCCA”) and the federal Stored Communications Act (“SCA”), as well as common law claims for trespass, breach of fiduciary duty, and the misuse of computers and other electronic equipment.

At trial, the company won a verdict of $300,000.00, which included both compensatory and punitive damages. In addition, because both the VCCA and the SCA provide for attorneys’ fees to a prevailing party, the court further awarded the company its expenses and attorneys’ fees in bringing the suit – in the total amount of $342,819.55.

Although only two of the company’s causes of action provided for attorneys’ fees, the company was successfully able to recover all of its expenses and attorneys’ fees in bringing suit against the employee, including the fees it incurred in bringing its common law claims. Normally, a party that brings suit only for common law causes of action cannot recover its attorneys’ fees. In this case, however, because the common law claims shared a “common core of facts” with the claims brought under the VCCA and SCA, the company’s success on its statutory claims entitled it to recover the entire cost of the litigation.

Practical Counsel: By carefully choosing what causes of action to allege when bringing a lawsuit, or reviewing your contracts and determining, on a case-by-case basis, whether an attorney fees provisions should be included, you can maximize your chances of not only prevailing in litigation against the other party, but also in recovering some or all of your attorneys’ fees.

 

About the Litigation Counselor

The Litigation Counselor is a monthly e-newsletter providing updates and counsel to business owners, executives and managers based on recent court decisions or litigation-related matters we are seeing impact local organizations.

If you would like any further information/assistance on the topics discussed herein, please contact Daniel Fevrin or Susan Simpson at 703-556-0411.