Blog post by Anna M. Pepelnjak
Like a number of other so-called “fee-shifting” statutes, the Wisconsin Fair Employment Act enables a successful complainant to recover his/her actual attorneys’ fees. The availability of attorneys’ fees sometimes makes settling these cases problematic, because the fees can far exceed the recovery owed to the employee.
Under a bill recently passed by the Wisconsin State Senate and scheduled for a vote by the Wisconsin Assembly, attorney fees would be presumptively capped at three times the amount of compensatory damages, unless a Court orders otherwise. In order to overcome the presumption, the Court must address the following factors:
- The time and labor required by the attorney.
- The novelty and difficulty of the questions involved in the action.
- The skill requisite to perform the legal service properly.
- The likelihood that the acceptance of the particular case precluded other employment by the attorney.
- The fee customarily charged in the locality for similar legal services.
- The amount of damages involved in the action.
- The results obtained in the action.
- The time limitations imposed by the client or by the circumstances of the action.
- The nature and length of the attorney’s professional relationship with his or her client.
- The experience, reputation, and ability of the attorney.
- Whether the fee is fixed or contingent.
- The complexity of the case.
- Awards of costs and fees in similar cases.
- The legitimacy or strength of any defenses or affirmative defenses asserted in the action.
- Other factors the court deems important or necessary to consider under the circumstances of the case.
In a recent posting on the issue, State Bar of Wisconsin Government Relations Coordinator Adam Korbitz pointed out,
“…the bill will have unintended, adverse consequences for Wisconsin’s business community — on whose behalf the legislation was offered — by creating uncertainty and ambiguity in the law where none currently exists.
The new limits imposed by the bill may impact as many as 280 statutes and administrative rules, including many that are frequently brought by Wisconsin businesses against those who have violated the law. These statutes also are frequently used to successfully defend against frivolous claims brought against an innocent party by someone who has actually violated the law.”
Evidently, the proponents of this legislation decided that the benefits of capping attorney fee recovery in employment and consumer cases outweighed the risk of prolonged litigation and/or the inability for members of the business community to recover fees in appropriate cases. Because this legislation is expected to be passed and signed into law soon, we won’t have to wait long for both negative and positive repercussions to occur.