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Category: Fee Jurisprudence

SCOTUS Won’t Hear Case Involving Fee Award Calculation Method

November 13, 2018

A recent Law 360 story by Michael Phillis, “High Court Won’t Hear $17.3M Fee Dispute in Gas Royalty Row,” reports that the Supreme Court declined to take up a challenge to a Tenth Circuit panel's decision that said an incorrect method of calculating the $17.3 million attorneys' fees award for work on a $52 million settlement over gas well royalty payments meant the award should be set aside.

The Tenth Circuit panel’s decision, which will now remain intact, reversed a lower court's award of attorneys' fees and an incentive award of half a percent for lead plaintiff Chieftain Royalty Co.  The panel agreed with two class members who objected to that award, Charles David Nutley and Danny George, who said the lower court was required to use the lodestar approach under Oklahoma law instead of using the percentage-of-the-fund approach for allocating fees.

In its petition for review, Chieftain Royalty said the lodestar method that is based on how many hours the attorneys worked was "burdensome and creates a perverse incentive for class counsel to litigate inefficiently."  The petitioner preferred common-fund awards that distribute a percentage of a fund.

Chieftain Royalty further argued that in diversity class actions such as in the instant case, the courts should be able to decide how to award reasonable attorneys' fees instead of being forced to defer to the applicable state law.  The objectors, however, said Oklahoma law required the lodestar approach and must be applied, and the Tenth Circuit agreed.

Chieftain had filed the state-law putative class action against EverVest Energy Institutional Fund in 2011, alleging the oil and gas company underpaid lease royalties on gas from wells in Oklahoma.  The $52 million settlement, meant to benefit around 21,000 class members, netted final approval about four years later.  The objectors appealed with respect to the fees and incentive awards.  They argued the Oklahoma Supreme Court has held that reasonable attorneys' fees should be calculated by the lodestar method in common-fund cases.

The Tenth Circuit panel said in mid-2017 that while the circuit had no binding precedent on whether federal courts must follow state laws governing how to calculate attorneys' fees, it found a consensus among five other circuits that have considered the issue.  "When state law governs whether to award attorney fees, all agree that state law also governs how to calculate the amount," the panel said.  The decision nixed the awards and remanded the case, adding that class counsel didn't provide the necessary records about their hours to be used in a lodestar calculation, throwing their fees into question.

In an opposition brief Nutley filed in October, the objector said the high court should not take the case, although he did say that there was a circuit split on the issue.  However, the brief said that the question posed by the petitioner on whether "common-fund fee awards are governed in diversity cases by state or federal law" wouldn't fully deal with the question at hand.

"This court should direct the parties to brief and argue the additional question of whether, in a common-fund case like this, 'a reasonable attorney's fee' is presumed to be the attorney's lodestar ... provided it does not exceed a reasonable percentage of the common fund," the opposition brief said.  "An affirmative answer to that question would resolve many conflicts in federal common-fund jurisprudence by providing a uniform rule that is consistent with this court's prior holdings defining 'a reasonable attorney's fee.'"

Eric Alan Isaacson, an attorney for Nutley, said the Tenth Circuit got it right.  He said the justices likely recognized the case was a poor vehicle to resolve conflicts among various courts.  "As Nutley's Brief in Opposition pointed out, there are many conflicts in the federal decisions on common-fund fee awards, so that if the Supreme Court granted certiorari to consider Chieftain's arguments that federal law controls, the Court should also have the opportunity to clarify what the controlling federal law is," Isaacson told Law360.

The case is Chieftain Royalty Co. v. Charles David Nutley et al., case number 18-301, in the Supreme Court of the United States.

$21.3 in Fees in $142M Wells Fargo’s ‘Fake Accounts’ Settlement

November 9, 2018

A recent The Recorded story by Amanda Bronstad, “Objectors Appeal $142 Million Settlement Over Wells Fargo’s ‘Fake Account’ Scandal,” reports that at least eight objectors have appealed approval of the $142 million class action settlement over Wells Fargo’s “fake accounts” scandal, many alleging that plaintiffs lawyers were not entitled to $21.3 million in legal fees.

The objectors appeals, filed on Nov. 5 in the U.S. Court of Appeals for the Ninth Circuit, are the latest challenge to the settlement, which has been hamstrung by increased costs of administering the funds.  The objectors argued that class counsel at Seattle’s Keller Rohrback spent limited time litigating the case, which settled after several government investigations found that Wells Fargo and Co. had set up unauthorized bank accounts for 3.5 million of its customers.

Objectors raised issues with whether U.S. District Judge Vince Chhabria of the Northern District of California sufficiently analyzed the various state laws before certifying a nationwide class action settlement.  They cited In re Hyundai and Kia Fuel Economy Litigation, a Jan.23 order in which the Ninth Circuit de-certified a nationwide class action because the district judge had failed to analyze the consumer laws of several states before approving the deal.

The case alleged that Wells Fargo opened accounts on behalf of its customers without their consent beginning in 2009. Wells Fargo fired thousands of employees.  Several executives, including its CEO, resigned or appeared on Capitol Hill.  In 2015, Chhabria granted Wells Fargo’s motion to compel arbitration in one of the cases.  While that order was on appeal, the company reached settlements with government regulators, including the Consumer Financial Protection Bureau, totaling $190 million.  Only $5 million of that payment went to customers.

The consolidated class action originally settled for $110 million last year.  Wells Fargo later upped that figure to $142 million.  However, after Chhabria granted preliminary approval of the deal, an outside review discovered another 1.4 million unauthorized accounts, prompting a delay in final approval, which Chhabria eventually granted on June 14.  Chhabria also gave $21.3 million in fees to class counsel, concluding that the award, at 15 percent of the total settlement fund, was well below the Ninth Circuit’s benchmark of 25 percent.

But administering the Wells Fargo settlement has been a complicated task.  Court records indicate Chhabria as well as several state attorneys general raised concerns about the notices sent to potential class members.  As a result, the costs of administering the settlement, a task undertaken by Rust Consulting, had increased substantially and, at times, resulted in what Loeser called “downright fighting,” according to a March 22 hearing transcript.  Loeser predicted at that hearing that the costs of administering the settlement would exceed $10 million, though Wells Fargo had agreed to pay much of that.

The case raised what Chhabria called “a burgeoning concern about the administration of class action settlements.”  “I think it’s a real problem in class action settlements that the court grants final approval and then gets out of the process, in class action settlements,” he said at the March 22 hearing, according to the transcript.  “I’m increasingly thinking that there needs to be, maybe, in a certain category of class action settlements, or maybe in all class action settlements—I’m not sure yet—a third level of review.”

At the settlement’s final approval hearing, on May 30, Chhabria declared that in all his class action cases, he would require plaintiffs lawyers to file a “notice of completion of duties at the end, after the settlement has been fully administered and everybody’s gotten their checks and all the money’s been accounted for.”  Until those duties are completed, he noted he would withhold a certain percentage of attorney fees—in this case, 10 percent.

He followed that with an order on June 14.  The order is similar to new guidelines issued on Nov. 1 by the Northern District of California that include providing data about class action settlements after final approval.  On Nov. 2, Loeser filed a motion to withdraw 25 percent of the attorney fees from the settlement fund, promising to repay the amount should the Ninth Circuit vacate the settlement.

SCOTUS Considers Attorney Fee Caps in Social Security Disability Claims

November 5, 2018

A recent SCOTUS Blog post by Kathryn Moore Guest, “Argument Preview: Justices Consider Cap on Attorney’s Fees for Successful Representation of Social Security Disability Claimants,” reports that attorney Richard Culbertson successfully represented several Social Security disability claimants both before the Social Security Administration and in federal court.  Prior to his representation, he entered into fee agreements that provided that the clients would pay him attorney’s fees equal to 25 percent of past-due benefits for successful representation before the court as well as separate attorney’s fees for successful representation before the agency.  Following longstanding precedent of the U.S. Court of Appeals for the 5th Circuit, adopted by the U.S. Court of Appeals for the 11th Circuit, the court below capped his attorney’s fees at 25 percent of past-due benefits for representation before both the Social Security Administration and the court.

In granting certiorari, the Supreme Court agreed to resolve a split among the federal courts of appeals as to whether the Social Security Act imposes an aggregate cap on attorney’s fees of 25 percent of past-due benefits for representation before both the court and the Social Security Administration, or instead the 25 percent cap applies separately to representation before the court.

The Social Security Act regulates the amount and manner in which an attorney may collect fees from a disability claimant for successful representation before the agency and the court.  42 USC § 406(a) governs attorney’s fees for successful representation before the agency, while 42 USC § 406(b) governs attorney’s fees for successful representation before the court.  The Equal Access to Justice Act also authorizes a court to order recovery of “reasonable attorney’s fees” from the government in certain cases in which the claimant is successful and the government’s position was not “substantially justified.”  If attorney’s fees are awarded under the EAJA and under Section 406(b), the attorney must refund the lesser fee to the claimant.  The Social Security Administration withholds a single pool of 25 percent of past-due benefits from which to certify for payment any and all attorney’s fees awarded under Section 406(a) and/or 406(b).

Section 406(a) authorizes two avenues for recovery of attorney’s fees from a claimant for successful representation before the agency.  Under Section 406(a)(1), an attorney may file a “fee petition” with the Social Security Administration.  Alternatively, under a more recent and more commonly used, streamlined process, an attorney may seek approval of a “fee agreement” with a claimant under Section 406(a)(2).  No cap is imposed under Section 406(a)(1).  Section 406(a)(2) limits attorney’s fees to the lesser of 25 percent of past-due benefits or a specified dollar amount, currently set at $6,000.

For successful representation before a court, Section 406(b)(1)(A) provides in relevant part:

Whenever a court renders a judgment favorable to a claimant under [Title II] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment.  Section 406(b)(1)(A) further provides that “no other fee may be payable or certified for payment for such representation except as provided in this paragraph.”

Focusing on the “plain meaning” of Section 406(b), Culbertson argues that the term “such representation” in Section 406(b)(1)(A) clearly refers to the antecedent phrase “represented before the court,” and thus under the plain meaning of Section 406(b), the 25 percent cap applies to representation “before the court by an attorney” and does not include representation before the agency.  Culbertson also argues that a separate cap on attorney’s fees for representation before the court is consistent with the structure of Section 406 as well as the purpose of the statute and its legislative history.

Almost 40 years ago, in the first circuit-court decision to address this issue, Dawson v. Finch, the 5th Circuit held that Section 406(b) imposes an aggregate cap on attorney’s fees for representation in the administrative proceedings as well as before the court.  In reaching this result, the 5th Circuit looked to the legislative history of the provision in order to discern Congress’ intent.  Specifically, the court focused on the fact that Congress added Section 406(b) to address two goals.  First, Congress sought to encourage effective legal representation by “insuring lawyers that they will receive reasonable fees directly through certification by the Secretary.”  Second, Congress sought to protect claimants against excessive attorneys’ fees, which in the past had reached one-third to one-half of claimants’ past-due benefits, by imposing the 25 percent cap on fees.  In 1982, the U.S. Court of Appeals for the 4th Circuit also looked to this legislative history to hold in Morris v. Social Security Administration that Section 406(b) imposes a cumulative 25 percent cap on attorney’s fees.

More recently, the U.S. Courts of Appeals for the 6th, 9th and 10th Circuits have focused on the text of section 406(b) to hold that the 25 percent cap only applies to representation before a court.  See Horenstein v. Secretary of Health and Human Services; Clark v. Astrue; and Wrenn v. Astrue, respectively.

The commissioner’s position on this issue has flipflopped over the years. Almost 40 years ago, the commissioner sided with the 5th Circuit in interpreting Section 406(b) to impose an aggregate cap and opposed the grant of certiorari in Dawson.  Then about 15 years later, the commissioner sought and obtained 6th Circuit en banc review of the panel’s decision in Horenstein v. Secretary of Health and Human Services based on arguments that were logically inconsistent with an aggregate 25 percent cap.  Almost 15 years after that, the commissioner argued in briefs before the 9th and 10th Circuits that an aggregate cap honors congressional intent and it would be inappropriate to permit attorneys to potentially collect up to 25 percent of a disability claimant’s past-due benefits at both the agency and court levels.

In this case, the acting commissioner initially supported the 11th Circuit’s rule imposing an aggregate cap.  Then, after requesting four extensions to file a response, the acting commissioner filed a response siding with Culbertson and arguing that the text of Section 406(b) unambiguously applies the 25 percent cap only to attorney’s fees for representation before a court.  The acting commissioner further argues that a 25 percent cap would be inconsistent with other provisions of Section 406(a) and that the absence of an aggregate cap does not mean that the agency and courts should approve fees that in the aggregate are equal to or greater than 50 percent of a claimant’s past-due benefits.

Because the acting commissioner agrees with Culbertson, the Supreme Court appointed Amy Levin Weil, an experienced 11th Circuit appellate litigator, to serve as amicus curiae in support of the 11th Circuit’s decision. Weil argues that the statute itself does not specifically state whether combined attorney’s fees may exceed 25 percent, and that the text of Section 406(a) and Section 406(b), read together, supports the aggregate rule.  She also points to the legislative history on which the 4th and 5th Circuits relied in support of an aggregate 25 percent cap.  She contends that permitting attorney’s fees to exceed 25 percent in the aggregate could lead to attorneys suing their clients to collect fees out of their present or future Social Security benefits contrary to the Social Security Act’s purpose of ensuring beneficiaries a protected source of income.  She also argues that rejecting the 25 percent aggregate rule would lead to absurd results, with fees of up to 75 percent of past-due benefits if a favorable district court opinion is appealed and the applicant is successful in the court of appeals.  She contends that the aggregate cap allows a logical division of agency and court fees from the 25-percent-of-accrued-benefit pool in a manner that recognizes that a portion of the accrued benefits is attributable to the time that the case was pending before the agency while the other portion is attributable to the time the case was pending before the court.

The National Organization of Social Security Claimants’ Representatives filed an amicus brief in the case.  The NOSSCR does not address the plain meaning of the statute.  Instead, it contends that Section 406(b) cannot impose an aggregate 25 percent cap on attorney’s fees for representation before a court and the agency because Section 406(a)(1) does not impose a cap on fees before the agency.  NOSSCR further argues that a court has no discretion to impose an aggregate cap.  NOSSCR informs the court that in circuits without an aggregate cap, the prevailing market rate includes a cumulative cap either by contract or in practice.

Weil faces an uphill battle in convincing the Supreme Court to uphold the 11th Circuit’s decision.  The plain-meaning approach to statutory interpretation currently favored by the court supports Culbertson’s position.  Moreover, amici curiae appointed by the Supreme Court typically only win about 25 percent of their cases.  If, however, Weil can convince the court to look beyond the text of the Section 406(b) in isolation, it may, like Chief Judge Geoffrey Crawford of the District of Vermont, find that “it would be strange indeed to believe that Congress would in 1965 denounce 50% contingency fees as excessive and enact a statute to stop them, and then, in 1968, pass a law with the effect of permitting 50% contingency fees.”

Law 360 Covers NALFA CLE Program

October 25, 2018

A recent Law 360 story by Bonnie Eslinger, “Excessive Attys’ Fee Bids Can Backfire, Judges Say,” reported on a NALFA CLE program hosted today, “View From the Bench: Awarding Attorney Fees in Federal Litigation”.  This live, remote, and multi-state CLE featured an all-judicial panel of sitting U.S. District Court judges.  The story reads:

A prevailing party seeking to recover legal fees should resist asking for excessive or unnecessary hours, federal judges said in a panel discussion Thursday, with one jurist noting such entries send up a red flag that makes him "skeptical of the entire application."  Speaking on a conference call organized by the National Association of Legal Fee Analysis, U.S. District Judges Virginia A. Phillips and Gene E.K. Pratter and Magistrate Judge William Matthewman all spotlighted examples of fee requests that didn't align with the U.S. Supreme Court’s opinion that fees should only be awarded for hours "reasonably expended" on a case.

Judge Phillips of the Central District of California said that judges spend substantial time combing through billing entries, adding, "Surprising things show up when you take a careful look at the bills."  Judge Pratter of the Eastern District of Pennsylvania agreed, saying the most amusing item she once found in an attorney's billing sheet was a calculation that he did 27 hours of work within one day.  It turned out the lawyer had failed to take into account the time zone changes when flying, she said.  The court's review of an attorney's fee request "sometimes requires a check on reality and then a check on Greenwich mean time," Judge Pratter said, chuckling.

Judge Matthewman of the Southern District of Florida said that lawyers shouldn't try to include excessive, redundant or unnecessary hours in their fee bid.  "That comes up constantly with me, where I will see perhaps excessive hours on reading a docket entry … or looking at the local rules, or opening mail, or doing administrative tasks, or really doing things that are unnecessary, such as preparing for a press conference, or perhaps there's a lot of client handholding in the case," Judge Matthewman said. "Things of that nature."

"Lawyers would do much better on these applications if they themselves would sort of police themselves and exclude excessive or redundant, unnecessary hours, so we see less of it or none of it, and we have more comfort in the application.  Once we start seeing a lot of these excessive and unnecessary requests for fees, it sort makes us skeptical of the entire application," the judge added.

Judge Phillips also noted that if an attorney is asking for a high hourly rate, based on his or her experience, then she's looking to see how much time the lawyer is spending on simple tasks.  "If you're entitled to a high hourly rate because of your immense experience, then you shouldn't really have to be spending a lot of time looking at the local rules of civil procedure," the judge said.

When fighting a fee request by the prevailing party, opposing counsel would do well to look for such concerns and make precise objections, Judge Matthewman said.  But avoid pejoratives, Judge Pratter suggested.  "There's no reason to call you opponent avaricious," she said.  Judge Matthewman agreed, saying those kinds of comments will hurt a party's fee request.

Attorneys seeking reimbursement of their fees also don't pay enough attention to requirements that they base their billing on reasonable, prevailing hourly rates, the judges said.  Often, attorneys don't provide enough information to justify their rates, Judge Phillips said.  "Ideally, under the case law, we should have a survey, some survey evidence, a declaration from someone who's qualified to opine on what the prevailing rate is in that community for this type of case," the judge said.  "But often I get nothing but the declaration of the party, of the attorney who's seeking the fees, saying, 'This is when I graduated and these are all the Best Lawyers awards I've ever gotten.'" 

Judge Matthewman added that it's irksome when attorneys from an expensive jurisdiction, such as New York City, come down to Florida for a case and then seek to be reimbursed for an hourly rate they would get in Manhattan.  Later in the discussion, Judge Matthewman said that when considering a fee request, he takes into consideration the quality of the attorney's work and representation.  "If you have a case where the fee applicant's attorney has been overly litigious, very difficult in the discovery process, very difficult on everything, agreeing on nothing, the court understands and knows that this increases the attorneys' fees that are incurred by both sides in the case," the judge said.  "And I think that's a factor that's taken into account."

On the flip side, an attorney who "makes the flow easy," gets rewarded by the court, he added.  Judge Phillips agreed, saying she frequently deals with top lawyers who may have high rates but get good results with "lean" hours.  "Lawyers who are really good, then, don't drop the ball on their fee petitions," Judge Pratter added.  "And lawyers who still have a ways to go somehow, miraculously, don't do so good on their fee petitions either."  The Pennsylvania judge also noted during the panel hearing that the Third Circuit guidelines direct judges to make fee reductions based on meritorious objections from the opposing party and not necessarily to rule sua sponte.

But later on in the discussion, Judge Pratter noted that there are times when the court should lean in with its own judgment, such as when there is a settlement in a class action lawsuit.  The court has a responsibility to look out for the class, she said.  "You cannot rely on the defendants to be acting as a brake on the fees," the judge said.  "The defendants come in, and they and the plaintiff's lawyers are all friendly and hugging each other about how important everybody's work was.  So that's always a flashing light for the court to become particularly attentive to its duties to the absent class members."

Ultimately, the judge said, attorneys should know that judges are not trying to be "mean-spirited" when they are scrutinizing attorney fee requests.  Nor are they jealous of the lawyers, she said.  They're just trying to carry out their duty.  "Most of us, we've been there," Judge Pratter said.  "We understand what it means to have to keep track of time.  I'll tell you, by the way, that's one of the best things about coming over to the other side, [giving] up time sheets."

CA Court: Attorney Fees Might Have Been Awardable as Damages

October 23, 2018

A recent Metropolitan News story, “Attorney Fees Might Have Been Awardable as Damages” reports that the Fourth District Court of Appeal declared that a trust that had to continue defending against an action in an unlawful detainer when the plaintiff refused to file a request for dismissal after a settlement had been reached was probably entitled to recover its post-settlement attorney fees as damages, in a new action, rather than securing them through a post-judgment motion for costs in the UD case.

While indicating a preference for that view—and suggesting that two cases to the contrary were incorrectly decided—Justice Richard D. Fybel of Div.  Three said in an unpublished opinion that the issue need not be determined because the amount of the fees awarded—$118,000—was not supported by the evidence, consisting solely of inadmissible hearsay.  The opinion directs the trial court to enter judgment in favor of the defendant, Morris Cerullo World Evangelism, Inc. (“MCWE”), and against plaintiff Lloyd Copenbarger, as trustee of the Hazel I. Maag Trust.

“It appears to us the Maag Trust could recover, as damages for breach of the settlement agreement, its attorney fees incurred in the unlawful detainer action,” Fybel wrote.  “One purpose for the Maag Trust entering into the settlement agreement was to avoid continuing to run up attorney fees in the unlawful detainer action; had MCWE performed its obligations under the settlement agreement by dismissing the action, the Maag Trust would not have incurred those fees.”

This was not a case where a written agreement called for the award of attorney fees to the prevailing party.  MCWE pointed to Code of Civil Procedure §1021 which codifies the American Rule that party normally bears its own costs of attorney fees, “[e]xcept as attorney’s fees are specifically provided for by statute.”  Citing the 1985 California Supreme Court decision in Brandt v. Superior Court, Fybel said: “There is a difference, however, between attorney fees sought qua damages and attorney fees sought qua costs of suit.  ”In Brandt, recovery of attorney fees was permitted as tort damages in a case where an insurer wrongfully denied coverage.

Fybel wrote: “Although Brandt dealt with a tort cause of action, the principle that attorney fees qua damages are recoverable as damages, and not as costs of suit, applies equally to breach of contract.  In this case, for example, the Maag Trust’s attorney fees incurred in defending the UD Action are damages caused by MCWE’s breach of the Settlement Agreement.  Those attorney fees were not costs of suit because they were not costs incurred in the action to enforce the Settlement Agreement.  In contrast, the Maag Trust’s attorney fees incurred in the lawsuit for breach of the Settlement Agreement would be, if recoverable, costs of suit because they were incurred in the litigation in which they were sought.”

The jurist noted that there are two contrary Court of Appeal opinions: Olson v. Arnett, decided in 1980 by this district’s Div. Five, and Navellier v. Sletten, a 2003 decision from the First District’s Div. Four.  “We question whether Olson and Navellier were correctly decided because both opinions fail to recognize the difference between attorney fees sought as damages and attorney fees sought as costs of suit,” Fybel said.  “We are not bound by those opinions.”

Noting that comments on the recoverability of attorney fees as damages were dicta, he declared: Although it appears to us attorney fees may be recovered as damages for breach of contract, we do not need to decide the issue.  Nor do we need to decide whether, as MCWE contends, the Maag Trust had to plead attorney fees as special damages in its complaint, whether the Maag Trust failed to disclose those damages in discovery, or whether the Maag Trust had to plead and prove excuse of its own failure to perform its obligations under the Settlement Agreement.  Nor do we need to decide the offset issue.  If attorney fees were recoverable as damages for breach of the Settlement Agreement, the Maag Trust failed to prove them.”

The case is Copenbarger v. Morris Cerullo World Evangelism, Inc., G054731.  Fybel noted that the present appeal was the fifth one stemming from a lease of property in Newport Beach.  Neither Olson or Navellier discussed Brandt. Brandt damages are generally awarded in insurance cases.  Div. One of the First District Court of Appeal said in the 1994 case of Ramirez v. Sturdevant: “Plaintiffs’ attorneys were hopeful that the Brandt rationale could be extended beyond bad-faith insurance cases to other situations involving a breach of the covenant of good faith and fair dealing—such as wrongful termination cases.  There is no evidence that such an extension ever had been sanctioned judicially, however, and in 1990…Division Four of this court expressly found such an extension to be unwarranted.”

The holding in Brandt was criticized in a majority opinion by then-Justice Miriam Vogel (now returned to law practice) in the 1995 case of Burnaby v. Standard Fire Ins. Co., with Presiding Justice Vaino Spencer (now deceased) dissenting from that portion of the discussion.  Vogel wrote: “Whatever merit there may be to the criticisms regularly heaped upon the American rule…, the decision to change that rule is the Legislature’s, not the courts’. For that reason, we agree with Chief Justice Lucas’s dissent in Brandt…that courts ought to move cautiously in extending the nonstatutory bases on which awards of attorneys’ fees may be predicated.  For the same reasons, we suggest it is time for the Supreme Court to reconsider and reject the exception it adopted in Brandt.” The high court has not acceded to that suggestion.