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Attorney Fees Awarded in Skim Milk Labeling Case

October 23, 2017 | Posted in : Fee Award, Fee Entitlement / Recoverability, Fee Reduction, Fee Request, Hourly Rates

A recent Daily Business Review story by Catherine Wilson, “$437,000 in Legal Fees Flow From All-Natural Skim Milk Fight” reports that a judge awards fees to two Miami attorneys who lost a skim-milk labeling case at the trial court level and won on appeal.  Florida has agreed to pay $428,855 in legal fees to pro bono attorneys who beat the state on a First Amendment skim-milk labeling dispute filed by a natural-foods creamery.

Mary Lou Wesselhoeft of Ocheesee Creamery was represented by two Miami attorneys at the Institute for Justice, a nonprofit libertarian public interest law firm based in Virginia.  The Florida Panhandle milk producer “felt like she was banging her head against the wall” and sued state Agriculture Commissioner Adam Putnam for rejecting the proposed label, Justin Pearson wrote in his motion for fees.

The state asked for a fee reduction, claiming the creamery met with only limited success.  U.S. District Judge Robert Hinkle concluded, “As a practical matter, the plaintiff prevailed completely.”

Regulations require producers to add vitamins to meet the definition of skim milk.  An injunction gives the dairy “the right to sell in Florida vitamin-deficient skim milk and call it skim milk,” the judge wrote.  The fee question returned to Hinkle, who ruled against the creamery after the U.S. Court of Appeals for the Eleventh Circuit rejected state arguments.

“Having initially ruled the the plaintiff’s claim was unfounded, I have no difficulty now concluding that the plaintiff’s attorneys did excellent work to achieve an excellent result in a difficult case,” Hinkle said following the reversal.

The judge accepted as reasonable hourly rates of $375 for Pearson, $275 for attorney Ari Bargil and $125 for paralegal Rebekah Ramirez.  The state objected to the claimed fee, and Hinkle cut the hours about 2 percent.

In the litigation, the state insisted Ocheesse’s’ product without the vitamins was “imitation” skim milk and wanted the Ocheesee label to use that word.  Pearson called the decision “the first of a kind in litigation regarding food labels.”  He noted no Tallahassee attorneys would take the case against the state agency.