COURT REVERSES PUNISHMENT FOR NOT SETTLING CASE

            Parties to litigation, and their attorneys, are often put into a no-win situation when the presiding Judge in a case "strongly" suggests a settlement for an amount that is not acceptable. A refusal may prejudice the Judge against your case, and an acceptance means paying more, or accepting less, than you believe is right.

            The Second Circuit Court of Appeals recently reversed a denial of attorneys fees in this situation, and remanded the case to the District Court to award appropriate fees to a photographer.

            The case, Boris Raishevich v. Foster, involved the loss of 347 photographic transparencies of his cannabis collection created over a 15-year period. They were seized by the New York State Police, and later destroyed by the defendant, an evidence custodian for the Police Department.

            The defendant conceded liability and the court held a non-jury trial on damages. A dispute arose as to whether the defendant had actually made a settlement offer before the trial. There was no dispute, however, that the photographer rejected the Court's "suggested" settlement proposal.

            After trial, the Court awarded damages, upon the evidence, which was less than the settlement proposal rejected by the photographer. The Court then refused to grant attorneys fees to the photographer on the ground of the refusal to accept the prior offer. (Attorneys fees were awardable in this action under the Civil Rights Attorneys Fees Awards Act of 1976, but the
principal would equally apply in copyright infringement situations and elsewhere where attorneys fees are available.)

            The Circuit Court held that the District Court "exceeded its allowable discretion in denying an award of attorneys fees on the basis of Raishevich's rejection of the court-proposed settlement offer."

            The victory was only half a loaf however, since the Circuit Court denied the photographer's request to increase the actual award.