No Liability of a Losing RPA Plaintiff to Pay Defendants' Attorneys' Fees, Unlike the Possibility under the Copyright Act

Initial Publication: 11/29/99; Last Update: 8/3/01 19:00

Under the worst case scenario (that a plaintiff loses his/her/its RPA action), there are no attorneys fees which the defendants are entitled to recover merely because they (assumedly) won the action. If the plaintiff wins, however, the plaintiff is entitled, as a matter of law, to his/her attorney's fees, under the Robinson-Patman Act (which fees have probably been included in the definition of the plaintiff's "recovery" in the plaintiff's fee agreement with his/her attorney).

There is a different result in copyright cases, where the plaintiff is as liable for attorneys' fees if the plaintiff loses as the defendants are liable for attorneys' fees if the defendants lose. The Supreme Court has recently held that the copyright law is a 2-way street with attorneys' fees, as to the standard when they should be awarded, but that no attorneys' fees would be payable by the copyright plaintiff or copyright defendants in the event the issues were issues for which the dispute was necessary to resolve the matter and advance copyright law. There is no similar doctrine in antitrust law.

Of course, an individual litigant (plaintiff or defendant) could be liable for attorneys' fees for outrageous conduct, such as intentionally falsifying, destroying or hiding evidence.

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Copyright 1999, 2001 by Carl E. Person