Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—11th Cir.: Attorney fees properly granted in Chinese restaurant deceptive practices dispute, (Nov 18, 2015)

By Greg Hammond, J.D.

The owners of the Chinese restaurant “Philippe by Philippe Chow” were properly granted attorney fees in a dispute alleging the owners engaged in unfair and deceptive practices by opening and operating restaurants similar to “Mr Chow” Chinese restaurants. The U.S. Court of Appeals in Atlanta determined that that the owners were the “prevailing” party and that the lower court did not err in awarding attorney fees under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) (Chow v. Chau, November 17, 2015, per curiam).

The owners of Mr Chow filed suit against the owners of Philippe, alleging, in part, false advertising and unfair competition under federal, state, and common law. The district court granted summary judgment in favor of the defendants on the plaintiffs’ unfair competition claims under the FDUTPA. All other claims were also decided in favor of the defendants. Finding the Philippe owners to be the prevailing party under the FDUTPA, the district court awarded the defendants over $1.1 million in attorney fees and $182,992.12 in costs, which the plaintiffs appealed.

The key issue on appeal, according to the court, was whether the defendants were the “prevailing party” under FDUTPA’s attorney fees provision. Despite the Mr Chow plaintiffs’ arguments, the appellate court agreed with the lower court that the defendants prevailed as to the FDUTPA claims against them. Even though the defendants’ counterclaims also failed, they could still be considered the “prevailing party” for purposes of assessing attorney fees and costs, because: (1) the plaintiffs did not prevail against the defendants on any alternative theory of recovery, so the net judgment rule could not be applied; (2) neither party recovered damages and a tie goes to the defendant who was sued and who was not found liable; and (3) the district court properly considered the scope and history of the litigation and the merits of the respective positions in awarding attorney fees.

Calculation of attorney fees. Although the district court did not err in awarding attorney fees, it nevertheless miscalculated the award, the appellate court concluded. In particular, the appellate court found that the attorney fees did not distinguish between FDUTPA-related and non-FDUTPA-related work. Because approximately one-fourth of the work focused on matters unrelated to the FDUTPA, the appellate court partially remanded the case for the lower court to issue an amended order reflecting the correct calculations. The prevailing defendants should therefore be awarded $870,218.01 in attorney fees.

The case number is 14-14654.

Attorneys: Curtis Bradley Miner (Colson Hicks Eidson), Bertram H. Fields (Greenberg Glusker Fields Claman & Machtinger LLP) and Lisa Jaffa Jerles (Kluger Kaplan Silverman Katzen & Levine, PL) for Michael Chow, Mr. Chow Enterprises, Ltd., and MC Miami Enterprises, LLC. Rosemary Balanky Wilder (Marlow Adler Abrams Newman & Lewis) and Anthony Accetta (Anthony Accetta, PA) for Chak Yam Chau, Philippe Miami, LLC, and Philippe West Coast LLC.

Companies: Mr. Chow Enterprises, Ltd; MC Miami Enterprises, LLC; Philippe Miami, LLC; Philippe West Coast LLC

Cases: StateUnfairTradePractices AlabamaNews FloridaNews GeorgiaNews