OTLA Trial Lawyer Spring 2021

47 Trial Lawyer • Spring 2021 Between the Sheets Lisa T. Hunt Cody Hoesly Christine Moore By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Christine Moore, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT In making attorney fee award, court applies lodestar approach and values non-profit organization’s in-house coun- sel’s time at market rates, not reduced rates; court also discounts time entries not clearly attributable to fee-generating claims. Friends of the Columbia Gorge v. En- ergy Facility Siting Council , 367 Or 258 (2020); Balmer, J. The petitioners were represented by Gary Kahn, Nathan Baker, Steven McCoy and Peter Lacy. The petitioners, non-profit environ- mental organizations, challenged certain rules adopted by the Energy Facility Siting Council. The petitioners made five arguments and prevailed on two of them: one procedural and one substantive. As a result, the Oregon Supreme Court in- validated the council’s rules. The peti- tioners then sought nearly $300,000 in attorney fees. The court held an award of fees was mandated by ORS 183.497 as to the petitioners’ substantive argu- ment, because the council had acted unreasonably. The court held that the petitioners were not entitled to any fees for their procedural argument, because the council had been reasonable, albeit incorrect, in its position. In determining a reasonable amount of fees to award, the court applied the “lodestar” approach. Regarding the hourly rate sought by the petitioners, the court held market rates should be awarded. The court rejected the council’s argument that, because several of peti- tioners’ council were in-house staff at- torneys, lower rates based on a cost-plus approach should be awarded. Regarding the time for which the petitioners sought compensation, the court held, although the petitioners sought fees for everything they did in the appeal, the petitioners were only entitled to fees for one argument they had made. That argument was the only claim on which they pre- vailed for which the court was awarding fees, and the work on that claim was severable from the work on the other claims. Further, the court noted, the petitioners had not specified which claims they were working on in each time entry, and the fee-generating claim was a relatively simple, small part of the case that did not require extensive time and effort to assert. Accordingly, the court awarded fees of about $30,000. Justice Nakamoto dissented, joined by Justice Nelson. They would have awarded fees for the petitioners’ work on their second winning argument (the procedural one), and they faulted the majority for essentially relying only on the ORS 20.075(2)(a) factors in deter- mining the fee award to the exclusion of other statutory factors. The dissent also discussed several time entries for which it would have awarded fees beyond what the majority awarded. The dissent would have awarded petitioners significantly See Sheets 48