Third Circuit Court Orders Prevailing Defendants in Class Action Suit to Pay Court Costs

In a recently published case, a four-judge panel of the Third Circuit Court of Appeal for the State of Louisiana upheld a trial court’s determination that the defendants pay all of the court costs, even though they prevailed on the merits of the case. This kind of decision is highly unusual; typically, the losing party pays court costs, which can include, for example, filing fees, expert witness fees, and costs of depositions. They can be substantial, especially in a decade-long court case such as this one. Here, the defendants were ordered to pay court costs of $326,307.09, which they promptly appealed.

In order to appeal a judgment of costs, the costs must be substantial and a hearing on the subject must be held after the case has resolved on the merits. Here, the trial judge, Judge Hebert, did in fact hold a hearing where both sides were allowed to present briefs and arguments as so why the opposing party should be forced to bear the costs.

The judge acknowledged that the lawyers for both sides were aggressive advocates and did not fault them for that. Though Judge Hebert took one of the plaintiff’s attorneys to task for losing his temper and throwing a pencil, he also pointed out that the defendants’ attorneys engaged in behavior that was calculated to mislead the court, intimidate and harass witnesses, and impede litigation.

Under Louisiana Code of Civil Procedure article 1920, the trial court has discretion in equity to decide which party is responsible for costs. Generally, the rule is to assess costs against the party that lost the case on the merits, but in some situations, the best interests of justice are served by ordering the winning party to pay all costs; the appellate court cited numerous examples. The appellate court found that Judge Hebert did in fact take note of the relevant factors, and noted that he had presided over the case for ten years and was fully aware of all aspects of the litigation.

One of the defendants’ in-house counsel wrote a letter to the editor of a scientific journal which was about to publish an article written by a plaintiff’s expert, alleging “scientific anomalies” which were found not to exist. The paper was temporarily pulled from publication, but the damage was done and the trial was delayed for several days while the expert was again examined. The defendants’ counsel claimed not to know anything about the correspondence, but the questions they asked the expert revealed their guilt.

During trial, one of the plaintiffs and her husband were sued to collect on a debt the day he was scheduled to testify. Defendants’ counsel claimed not to be involved in the collection effort, but the trial judge believed that it was done solely to intimidate the plaintiffs, not to further a good-faith debt collection. The trial judge also dismissed the defendants’ arguments that they took certain depositions in good faith and that unused depositions should not be counted against them.

On the whole, the trial judge noted a pattern of “overreaching and unduly aggressive behavior” by the defendants’ attorneys that justified imposing costs. The appellate court agreed and upheld the decision in full.

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