Suit "Costs" Assessable against Losing Party - a Practical Discussion

Initial Publication: 2/28/98; Last Revision: 2/28/98

The Question. Reasonable persons ask themselves what lawsuit "costs" could be assessed or "taxed" against them if they wind up losing the case. This is a good question to ask yourself.

Since we are talking about federal lawsuits (because only the federal courts have jurisdiction to entertain RPA litigation), we should discuss the federal rules relating to costs.

"Taxable Costs" Assessed against Losing Party - 28 U.S.C. Section 1920. Under federal statute 28 U.S.C. Section 1920, entitled "Taxation of costs," [see link below] the court clerk and judge have the shared responsibility of determining and assessing "taxable costs" against the losing party or parties.

These costs generally include the prevailing party's costs of deposition transcripts which were used at trial or used in the making of a summary judgment motion, and could amount to anywhere from $1,000 to $50,000, with $20,000 being a reasonably predictable amount.

Another expense is copying, which could amount to several hundred dollars or more.

Witness fees ($40 per day) and travel/lodging expenses are taxable, as well, and could amount to several thousand dollars.

Filing fees would be non-existent if the defendant prevailed, because the filing fee for the filing of the action is paid by the plaintiff.

Other fees and costs exist but may not be charged under the court rules, depending on the court. The U.S. statute governing taxation of costs is 28 U.S.C. Section 1920 Taxation of Costs - 15 U.S.C. Section 1920.

Thus, it seems that in an RPA antitrust case, the "taxable costs" could amount to about $25,000 if the plaintiff lost (or, an equal amount plus attorneys' fees if the plaintiff won).

Costs May Not Taxable If and to the Extent the Losing Party Cannot Afford to Pay Them.

Costs are initially taxable against the losing party by the clerk of the federal court, according to the rules which govern the taxing of costs against the losing party. If the losing party cannot afford to pay such costs and complies with the procedure set forth below, the costs can be reduced to a truly manageable amount. For example, taxable costs of $200,000 were reduced to $12,500 in a recent copyright case. But remember, you must qualify for such reduction of taxable costs, and comply with the procedure for obtaining the reduction.

The Procedure. When costs and/or attorneys' fees are being requested by an opposing party, the person or persons being asked to pay such costs or attorneys' fees must prepare, serve and file an affidavit or declaration stating that he/she/it has no assets with which to pay the requested costs and/or attorneys' fees. The judge then under law will presumably reduce the requested amount to a sum which is no greater than the losing party would be able to pay.

The net result is that persons who have adequate assets can expect to pay costs if they lose (or receive reimbursement of taxable costs if they win), and if losing persons have no financial ability to pay costs, the courts generally will relieve them of the obligation to an equitable extent.

Of course, the losing party and attorney must be vigilant in preparing, serving and filing the appropriate affidavit or declaration required to adequately describe the financial situation involved, to enable the judge to make a reasonable determination that to award costs in the amount requested would be unjust.

Some of the leading cases in this area are:

[cases and relevant quotes are to be added]

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Copyright © 1998 by Carl E. Person