Atherton v. GOPIN
1 N.M. Ct. App. 317
| N.M. Ct. App. | 2012Background
- Plaintiffs prevailed on an Unfair Practices Act claim and were entitled to attorney fees under §57-12-10(C).
- District court approved a lodestar-based fee but refused to apply a multiplier.
- Parties settled for about $5,200 plus attorney fees; amount to be determined by counsel or court.
- Disagreement over the proper amount of attorney fees and whether a multiplier should be used.
- District court ultimately awarded $39,608.40 in fees but denied any multiplier; this appeal followed.
- Court holds district court may consider a multiplier to the lodestar in UPA cases and remands for new fee determination including the appeal fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a multiplier may be used in UPA attorney fees. | Gesswein/ plaintiffs: multiplier allowed; no statutory limit. | Gopin: multiplier outside precedent and improper. | Yes; multiplier may be applied to the lodestar in UPA cases. |
| Whether waiver barred pursuing a multiplier previously. | No waiver; settlement statement did not abandon multiplier right. | Waiver by conduct/estoppel possible. | No waiver by the record; right to seek multiplier preserved. |
| Whether district court can apply multiplier beyond class/common fund settings. | Multiplier appropriate to ensure enforceability of UPA rights. | Not supported by federal cases cited; constrained by precedent. | District court has discretion to apply a multiplier outside class/common fund contexts. |
| Whether appellate fees should be awarded on remand. | UPA cases allow appellate fees. | Not disputed. | Award reasonable appellate fees and costs on remand. |
Key Cases Cited
- Jones v. Gen. Motors Corp., 124 N.M. 606 (New Mexico Court of Appeals, 1998) (reasonableness of attorney fees under UPA; entitlement to fees even with small damages)
- Microsoft v. L.N.M. (Microsoft), 140 P.3d 976 (New Mexico Court of Appeals, 2007) (lodestar method and possibility of multiplier)
- Perdue v. Kellogg Brown & Root, 130 S. Ct. 1662, 130 S. Ct. 1662 (Supreme Court, 2010) (fee enhancement may be appropriate for contingent risk; lodestar not exclusive)
- Ketchum v. Moses, 24 Cal.4th 1122 (Cal. 2001) (trial court not required to enhance lodestar but may in appropriate case)
- Sloan v. State Farm Mut. Auto. Ins. Co., 135 N.M. 106 (New Mexico Supreme Court, 2004) (cases not authority for propositions not considered)