Westar Energy, Inc. v. Lake

FILED
United States Court of Appeals
Tenth Circuit

January 21, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

WESTAR ENERGY, INC., a Kansas
corporation,

Plaintiff -
Counter-Defendant - Appellant,
v. Nos. 07-3219 & 07-3280
DOUGLAS T. LAKE,

Defendant -
Counter-Claimant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 05-CV-4116-JAR)

Kirk T. May (Charles W. German and Jason M. Hans with him on the briefs) of
Rouse, Hendricks, German, May, P.C., Kansas City, Missouri, for Plaintiff -
Counter-Defendant - Appellant.

Edward J.M. Little, Hughes, Hubbard & Reed, L.L.P., New York, New York
(F. James Robinson, Jr., Hite, Fanning & Honeyman, L.L.P., Wichita, Kansas,
with him on the brief), for Defendant - Counter-Claimant - Appellee.

Before MURPHY, BRORBY, and HARTZ, Circuit Judges.

MURPHY, Circuit Judge.
 Plaintiff-Appellant Westar Energy, Inc. (“Westar”) appeals an interlocutory

order requiring Westar to advance past and future legal fees incurred by

Defendant-Appellee Douglas Lake for his criminal defense. The district court did

not label the order a preliminary injunction, but it meets the elements of a

preliminary injunction and this court therefore has jurisdiction over the appeal

under 28 U.S.C. § 1292(a)(1). The retrospective relief ordering the payment of

past attorneys’ fees cannot be upheld as a preliminary injunction because the

remedy is not necessary to prevent irreparable harm. The prospective relief

ordering future advances, on the other hand, satisfies Rule 65 and the equitable

standards necessary to justify a preliminary injunction, but the district court erred

in effectively assigning Westar the burden of disproving the reasonableness of

Lake’s advancement requests. Accordingly, we affirm in part and reverse in

part.

I. Background

Lake was hired by Westar in the fall of 1998 to be the company’s Chief

Strategic Officer and Executive Vice President. In 2001, he became a director of

the company. Westar’s Articles of Incorporation provide for indemnification of

officers and directors for costs and liabilities, including attorneys’ fees,

reasonably incurred in any proceeding in which they are involved as officers or

directors of Westar. The Articles refer to the right as a contract right. Officers

and directors also have a right under the Articles “to be paid by [Westar] the

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expenses incurred in defending any such proceeding in advance of its final

disposition.” This right is dependent upon the officer or director delivering an

“undertaking” to Westar promising to repay the amounts advanced if the

individual is ultimately not entitled to indemnification. 1

In September 2002, a federal grand jury began issuing subpoenas relating to

allegations of fraud and financial impropriety on the part of several Westar

executives, including Lake. The grand jury ultimately indicted Lake. In 2003,

two civil complaints were filed against Westar; Lake was later added as a

defendant in those actions. 2 Lake retained counsel to defend him in the pending

criminal and civil actions. To trigger Westar’s obligation to advance his legal

fees, Lake signed undertakings agreeing to repay the advances should he

ultimately not be entitled to indemnification.

One law firm retained by Lake to represent him in the civil actions and

criminal proceedings was the New York firm Hughes Hubbard & Reed, LLP

1
This diversity case arises under Kansas law. Under Kansas law, indemnity
is only available to an officer if the officer acted in good faith and in a manner
the officer reasonably believed to be in accordance with or not opposed to the
corporation’s interests. Kan. Stat. Ann. § 17-6305(b).
2
The civil suits, a shareholder derivative action and a class action, settled in
September of 2005. Although Lake’s attorneys claim they are still owed
advancements for their work in those cases, the district court declined to provide
for the payment of those fees. It concluded the only action available for those
fees was indemnification because the civil actions have concluded. Lake has not
appealed this ruling.

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(“Hughes Hubbard”). Lake hired the Kansas firm Hite, Fanning & Honeyman

LLP (“Hite Fanning”) to serve as local counsel in the civil and criminal matters.

Lake submitted his first request for advancement of fees to Westar in

March 2004. These fees were not immediately paid, however, because on April 5,

2004, the district court in the criminal case issued a restraining order against

Westar specifically preventing the distribution of potentially forfeitable assets,

including attorneys’ fee advances, to Lake. The restraining order was modified

on August 13, 2004, to allow for the advancement of legal fees in the criminal

case. Hughes Hubbard then sent Westar two invoices for fees totaling over $2

million, and Westar paid both invoices in full.

Lake’s first criminal trial began on October 12, 2004. Three days later,

Hughes Hubbard sent an invoice for over $800,000 in fees and expenses. This

time, Westar refused to pay the full amount. Westar informed Hughes Hubbard

that the amount was unreasonably high. Without conceding any of the fees were

reasonable, Westar advanced $500,000. Its stated reason for advancing this

amount was that it did not want to distract Hughes Hubbard from its work in the

ongoing trial.

The criminal trial ended in a mistrial on December 20, 2004. Between

November 8 and December 13, 2004, Hughes Hubbard submitted three additional

invoices to Westar, requesting advancements totaling over $1.8 million. Westar

again objected to the reasonableness of the fees and advanced only $1.2 million.

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Additionally, Westar and Lake agreed that in the event of a criminal conviction

after a final determination of guilt, Lake would relinquish his rights to any assets

held by Westar to the extent necessary to repay the advancements. On March 16,

2005, Hughes Hubbard submitted an invoice for over $890,000. Westar objected

to the reasonableness of the bill on several specific grounds and withheld

$90,000. Westar also purported to reserve the right to offset its payment against

future bills if it did not receive satisfactory explanations to its objections.

On May 23, 2005, in advance of the second criminal trial, the district court

in the criminal case imposed a restraining order requiring all advances to be

placed in escrow as potentially forfeitable assets. In its order, the district court

noted it lacked jurisdiction to compel Westar to pay legal fees, but it was the

court’s intention that Westar continue making advances into the escrow account.

Despite the district court’s suggestion, Westar ceased making advances. When

Hughes Hubbard sent Westar an invoice for $780,000, Westar refused to advance

anything. It deemed the amount unreasonably high and stated its view there was

no purpose in advancing the funds into escrow since they were not immediately

available for Lake’s defense.

On September 15, 2005, the second trial ended and Lake was found guilty

on some of the counts. The jury found, however, that the attorneys’ fee advances

were not forfeitable assets. Accordingly, the district court lifted the restraint on

the advances of attorneys’ fees. Instead of advancing the attorneys’ fees incurred

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in the second trial, Westar filed this declaratory judgment action premised on

diversity jurisdiction seeking a determination of its obligation to advance. Lake

brought a counterclaim for breach of contract. When Westar filed this suit in

October of 2005, Lake had incurred nearly $4 million in unpaid fees and

expenses.

Because Lake still needed representation in post-trial matters, the

attorneys’ fees continued to accrue. Lake retained another New York firm to

handle his appeal, Wilmer Cutler Pickering Hale & Dorr LLP (“Wilmer Hale”).

Wilmer Hale accrued fees and expenses totaling over $2.2 million pursuing

Lake’s appeal. Hughes Hubbard incurred over $900,000 in additional fees and

expenses in connection with the criminal post-trial matters. Westar has advanced

none of these fees.

In December of 2006, Lake filed a motion for summary judgment in the

instant case on his breach of contract counterclaim, seeking “an order that Westar

immediately advance to Lake the sum of $5,325,049.18, which constitutes 82% of

the invoices for legal expenses Lake incurred against which Westar has advanced

no money whatsoever.” 3 Lake argued that reasonableness challenges to

advancement requests are permitted in very limited circumstances, and the

attempt to set off the fees from the first trial with those of the second trial was

3
Lake sought only 82% of those invoices because Westar had paid, on
average, 82% of the previous invoices. Thus, Lake argued, Westar had
effectively conceded the reasonableness of 82% of Lake’s fees.

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unreasonable. Lake did not specifically seek a preliminary injunction. He did,

however, state the relief he requested was interim because it would “in no way

compromise Westar’s right at the indemnification stage to recoup so much of the

above amounts as are ultimately deemed unreasonable.”

While Lake’s motion was pending, several significant events occurred.

First, this court reversed all of Lake’s convictions, remanding some for a new

trial. United States v. Lake, 472 F.3d 1247, 1267 (10th Cir. 2007). The

government intends to try Lake a third time. 4 In response to the reversal of

Lake’s convictions, the district court in this matter requested expedited

supplemental briefing on “the issue of Westar’s liability with respect to future

advancement of legal fees and expenses in the upcoming third criminal trial.” In

its supplemental brief, Westar stated its intention to “advance in good faith”

reasonable fees and expenses for the third trial, and requested the court to “set

hourly rates . . . at rates customarily charged in Kansas for similar legal services,

and grant such other relief as is appropriate under the circumstances.” Westar

indicated its understanding that this relief would be interim in nature because it

was not waiving its objection to “the overall reasonableness of all fees and

expenses.” In his supplemental brief, Lake sought prospective, equitable relief in

4
The third trial is subject to an expedited interlocutory appeal before this
court. United States v. Wittig, No. 08-3220. No trial date has been set. In
advance of the third trial, the government sought, but was denied, a new
restraining order prohibiting the advancement of attorneys’ fees.

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the form of an order requiring Westar to advance Lake’s attorneys’ fees as they

came due.

On May 29, 2007, Hughes Hubbard and Hite Fanning moved to withdraw

from representing Lake in the criminal case. As grounds for withdrawal, the

firms cited Lake’s inability to pay their substantial outstanding fees. While the

motion to withdraw was pending in the criminal case, the district court ruled on

Lake’s motion for summary judgment in this case. The court first ruled Westar

was only obligated to advance reasonable attorneys’ fees. While disputed issues

of material fact prevented the court from entering summary judgment, the court

found it appropriate to grant two interim remedies: one retrospective, and one

prospective. For retrospective relief, the district court noted the final resolution

of the case might be “years away,” and the right to advancement would be lost if

payments were not made promptly. Accordingly, the court determined that “the

appropriate measure of interim relief is immediate payment of 50% of the

outstanding requests for out-of-state counsel, Hughes Hubbard and Wilmer Hale,

and payment in full for local counsel, Hite Fanning.”

For prospective relief, the district court exercised its “equitable power to

establish certain limited procedures to ensure” Westar’s compliance with its

obligation to advance. The court ordered Westar to promptly pay Lake’s legal

fees at each lawyer’s customary rates. If Westar objected to the reasonableness of

a particular bill, it had to specify the objection within ten days of receipt of the

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bill. It also had to timely pay any portion of the bill to which it did not object. If

the parties did not settle the dispute within ten days, it would be submitted to a

magistrate judge for expedited adjudication. Westar preserved the right to

ultimately challenge the reasonableness of all the fees.

In response to the order, Westar filed a motion to set bond and a notice of

appeal, arguing the order was a preliminary injunction. Westar also refused to

pay the retrospective sum owed and Lake filed a motion seeking to have Westar

held in contempt. The district court then denied Westar’s motion to set bond and

clarified and revised the order. Following that denial, Westar filed another notice

of appeal and unsuccessfully sought a stay of the retrospective portion of the

order with the district court and this court. Westar indicated at oral argument that

it has now paid the retrospective amount ordered by the court.

Notwithstanding the entry of the interim order and Westar’s announcement

that it would comply with the prospective remedy even while appealing it, Hughes

Hubbard and Hite Fanning proceeded in their efforts to withdraw as Lake’s

criminal counsel. Blackwell Sanders LLP, a Kansas City, Missouri law firm,

entered its appearance for Lake in the criminal case as his new lead counsel. On

November 6, 2007, the district court granted Hughes Hubbard and Hite Fanning’s

motion to withdraw from representation, excepting one Hughes Hubbard associate

who was familiar with certain documents and issues in the case.

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 II. Appellate Jurisdiction

Before addressing the merits of the appeal, this court must determine

whether it has jurisdiction. The order of the district court does not constitute a

final judgment so it cannot be appealed under 28 U.S.C. § 1291. Westar contends

the order grants injunctive relief, and thus is appealable under 28 U.S.C.

§ 1292(a)(1). Both parties agree that this court defines injunctive relief as “all

equitable decrees compelling obedience under the threat of contempt.”

Consumers Gas & Oil, Inc. v. Farmland Indus., 84 F.3d 367, 370 (10th Cir. 1996)

(quotation omitted). The district court, for its part, did not consider the relief

injunctive in nature. In determining whether a remedy constitutes an injunction,

however, this court relies upon the substance of the underlying order, not simply

its form. Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 477 F.3d 1151, 1153

(10th Cir. 2007).

Lake argues the interim order is unappealable because the relief granted by

the district court was legal, not equitable, in nature. He claims if the remedy was

legal, it cannot, by definition, be a preliminary injunction. He relies upon a

Second Circuit case for the proposition that an order compelling payments “in

accordance with a statute [granting] a right to preliminary relief” is not equitable

and is therefore not immediately appealable. Korea Shipping Corp. v. N.Y.

Shipping Ass’n, 811 F.2d 124, 126 (2d Cir. 1987).

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 Lake also argues that interlocutory appeals of this sort threaten to render

the right to advancement a nullity. Because the underlying criminal proceeding is

not stayed during this appeal, Lake argues Westar can “run out the clock” by

taking advantage of the time-consuming appellate process. According to Lake,

the right to advancement will become moot at the conclusion of the criminal trial.

If Lake is acquitted and Westar must indemnify him, then Westar will be no

worse off than if it had advanced the funds in the first place. If Lake is convicted

and not entitled to indemnification, then Westar will likely owe nothing

notwithstanding its failure to advance Lake’s expenses. 5

Lake’s arguments are unconvincing. The district court directly ordered

Westar to do two things prior to any adjudication on the merits: pay a certain

dollar figure for accrued unpaid legal expenses and prospectively pay Lake’s

future legal expenses. The district court also explicitly invoked its equitable

powers in granting the prospective relief. Lake, for his part, requested equitable

relief in his supplemental brief, and has attempted to enforce the retrospective

award through contempt proceedings. Under these circumstances, the order was a

preliminary injunction.

5
The Articles themselves do not condition indemnification upon an ultimate
finding of guilt or innocence; instead, they extend indemnity in cases where the
officer or director who acted in good faith and in a manner he reasonably believed
to be in accordance with or not opposed to the corporation’s interests. Neither
party has argued, however, that Lake will be entitled to indemnity if he is
ultimately convicted.

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 Korea Shipping is inapplicable here. The payments in question in that case

were interim withdrawal liability payments mandated by ERISA. Id. at 125. In

contrast, the Kansas advancement statute does not mandate payments; instead, it

allows corporations to enter into contracts providing the right of advancement.

Kan. Stat. Ann. 17-6305(e). An action seeking to enforce the right to

advancement is an action for specific performance of a contract. Specific

performance is an equitable remedy, and an interim grant of specific relief is a

preliminary injunction. See, e.g., Port City Props. v. Union Pac. R.R., 518 F.3d

1186, 1189-90 (10th Cir. 2008).

Lake’s policy-based argument does not negate the essentially injunctive

nature of the relief granted by the district court. While advancement claims must

be adjudicated expeditiously so judicial rulings are enforceable while they retain

value to the officer, federal law limits the procedures and mechanisms available

to a litigant in federal court. If a party seeks to enforce a contract in federal

court, the court must comply with the Federal Rules of Civil Procedure in

adjudicating the claim.

The appealability of preliminary injunctive relief may, in some situations,

impair an officer’s ability to collect advances. Yet no such impairment is present

here, as the district court’s order has not been stayed and is enforceable during

the pendency of this appeal. Lake’s position would also present new obstacles for

officers who, unlike Lake, are denied immediate interim relief. In such

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circumstances, an immediate appeal would be absolutely vital to protecting the

right to advances. In sum, while the preliminary injunction may be an imperfect

remedy for enforcing the right to advances, it does not, as Lake suggests, destroy

the value of advancement.

Lake’s argument that Westar can run out the clock is further belied by his

own pace in seeking preliminary relief. Westar began objecting to the

reasonableness of Lake’s attorneys’ fees during the first trial. After the mistrial

in December 2004, Lake made no effort to judicially enforce his right to

advances. The May 2005 restraining order requiring advances to be placed in

escrow may have justified the belief that a lawsuit would be futile at that point.

Once the restraining order was lifted at the conclusion of the second trial,

however, it was Westar, and not Lake, who brought a declaratory judgment action

regarding its advancement obligation. Even after Lake filed his breach of

contract counterclaim and Lake’s attorneys continued to accrue fees in connection

with post-trial motions and the appeal, Lake waited over a year to specifically

seek preliminary relief. Under these circumstances, Lake is poorly positioned to

argue that a preliminary injunction, with its right to immediate appeal, is not

equal to the task of protecting his right to advances.

Because the relief granted by the district court was not labeled an

injunction by the district court, Lake argues it must also meet the harm test set

out in Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981). Under Carson,

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an interlocutory order with the “practical effect” of denying an injunction is only

appealable if the litigant can show a “serious, perhaps irreparable, consequence”

and the order can only be “effectually challenged” upon interlocutory appeal. Id.

(quotations omitted). We decline to apply the Carson test to the facts of this

case. While Carson applies in situations where orders have the practical effect of

denying an injunction, orders which themselves grant or deny injunctive relief are

appealable as injunctions under 28 U.S.C. § 1292(a)(1) without the Carson

showing. Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir. 1997). Since the

district court’s order expressly granted relief, it is immediately appealable

notwithstanding the court’s failure to label the relief as injunctive. 6

In summary, the relief was equitable in nature and constitutes the grant of

a preliminary injunction. This court has jurisdiction to hear the appeal under 28

U.S.C. § 1292(a)(1) and Lake’s motion to dismiss is hereby denied.

III. Injunctive Relief

Westar argues the grant of interim relief was erroneous on two main

grounds. First, it argues the district court applied the wrong legal standard to

evaluate the claim. Second, it argues the relief was impermissible because the

district court failed to follow the procedures and make the determinations

6
This eliminates the need to determine whether the heightened Carson
showing is necessary when an interlocutory order has the practical effect of
granting, rather than denying, a preliminary injunction. See Saudi Basic Indus. v.
Exxon Corp., 364 F.3d 106, 111 (3d Cir. 2004) (holding Carson inapplicable
where an order had the practical effect of granting an injunction).

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necessary to support the imposition of a preliminary injunction. We address both

contentions within the context of the legal standards applicable to preliminary

injunctions.

The grant of a preliminary injunction is reviewed for abuse of discretion.

Bhd. of Maintenance of Way Employees Div./IBT v. Union Pac. R.R., 460 F.3d

1277, 1282 (10th Cir. 2006). An abuse of discretion occurs when the district

court commits an error of law or relies upon a clearly erroneous factual finding.

Id. If the district court fails to analyze the factors necessary to justify a

preliminary injunction, this court may do so if the record is sufficiently

developed. Schrier v. Univ. of Colo., 427 F.3d 1253, 1261 (10th Cir. 2005).

Preliminary injunctions are extraordinary equitable remedies designed to

“preserve the relative positions of the parties until a trial on the merits can be

held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). For a district court

to grant a preliminary injunction, it must comply with the procedural

requirements of Rule 65 of the Federal Rules of Civil Procedure. Further, the

moving party must demonstrate that four equitable factors weigh in favor of the

injunction: (1) irreparable injury in the absence of the injunction; (2) the

threatened injury to the moving party outweighs the harm to the opposing party

resulting from the injunction; (3) the injunction is not adverse to the public

interest; and (4) the moving party has a substantial likelihood of success on the

merits. Schrier, 427 F.3d at 1258. Three types of preliminary injunctions are

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disfavored: (1) preliminary injunctions altering the status quo, (2) mandatory

preliminary injunctions, and (3) preliminary injunctions granting the moving

party all the relief it could recover at the conclusion of a full trial on the merits.

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975

(10th Cir. 2004) (en banc), aff’d on other grounds, 546 U.S. 418 (2006). These

injunctions require strong showings of the likelihood of success on the merits and

the balance of harms. Id. at 976.

As discussed above, the district court concluded its order did not constitute

a preliminary injunction. As a consequence, the court did not weigh the equitable

factors. That failure was an error of law and, hence, an abuse of discretion.

Nonetheless, the record is sufficiently developed to allow for an analysis of the

equitable factors on appeal.

The order issued by the district court was mandatory in nature. It

commanded Westar to immediately pay a specific sum of money to Lake and pay

future amounts as they come due. It therefore falls easily within the definition of

a disfavored mandatory injunction. 7 See Schrier, 427 F.3d at 1261. As a

consequence, a strong showing on the likelihood of success and the balance of

harms is necessary to justify the mandatory injunction in this case.

7
Since the injunction is mandatory, there is no need to inquire whether the
injunction is also an alteration of the status quo or the preliminary grant of merits
relief.

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 A. Equitable factors

1. Irreparable Injury

Lake’s right to advancement is a contractual right originating in Westar’s

Articles of Incorporation. 8 Advancement is a distinct right complementary to the

right to indemnification. Homestore, Inc. v. Tafeen (Homestore II), 888 A.2d

204, 212 (Del. 2005). Indemnification and advancement work in tandem to

encourage talented individuals to serve as corporate officers. Homestore II, 888

A.2d at 211. Corporate service entails the risk of civil and criminal liability, and

corporations may be willing to assume the expenses of defending such suits to

attract talented employees. Id. The right to indemnity, however, is often

impossible to determine until the legal proceedings are finished. Absent

advances, the officer himself must front the cost of defending the legal

proceeding, significantly diminishing the attractiveness of indemnity. Id.

Advancement addresses this problem by providing timely relief in the midst of

litigation. Homestore, Inc. v. Tafeen (Homestore I), 886 A.2d 502, 505 (Del.

2005). If a corporation withholds advances, the right will be irretrievably lost at

the conclusion of the litigation, because at that point the officer will only be

entitled to indemnity. See id.

8
Although this diversity case arises under Kansas law, the Kansas
Corporate Code was modeled after the Delaware Corporate Code and the Kansas
Supreme Court relies upon Delaware case law as persuasive authority in
interpreting rights arising under the code. Arctic Fin. Corp. v. OTR Exp., Inc., 38
P.3d 701, 703 (Kan. 2002).

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 In this case, Lake faces the possibility of a prison term if he is convicted in

his third criminal trial. He is relying on advances to fund his legal defense. The

district court’s prospective remedy protects Lake’s right to advances, and is thus

crucial to Lake’s defense of his liberty. Lake therefore meets the requirement of

showing irreparable injury in the absence of the prospective relief granted by the

district court.

The question, however, is different with respect to the retrospective relief

granted by the district court. Unlike the prospective remedy, the retrospective

remedy commanded Westar to pay accrued legal fees for services already

rendered. It is more difficult to conclude such retrospective relief is necessary to

prevent an irreparable injury, since the injury of nonpayment has already

occurred.

In certain circumstances, retrospective relief might be necessary to forestall

an irreparable injury. For example, if Hughes Hubbard were still Lake’s lead

counsel, their accrued debts might conceivably affect their future representation.

We need not decide that issue, however, because Hughes Hubbard has

relinquished the role of lead counsel for the third criminal trial. A preliminary

injunction mandating payment of Hughes Hubbard’s past invoices is not

necessary to prevent irreparable harm to Lake given the firm’s current diminished

role on Lake’s criminal defense team. Correspondingly, the nonpayment of the

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Hite Fanning and Wilmer Hale invoices poses no threat of irreparable harm to

Lake since each has terminated its representation.

The concurrence is entirely premised on an issue not before this court, i.e.,

Westar’s ability to recover on remand. Westar cannot recover, according to the

concurrence, because to do so would conflict with a provision in a draft version

of the Restatement (Third) of Restitution and Unjust Enrichment. The draft,

however, only addresses the question of whether an action for unjust enrichment

can lie when the original judgment is invalid on a technicality but a legal duty to

pay still exists. See Restatement (Third) of Restitution and Unjust Enrichment §

18 cmt. e (Tentative Draft No. 1, 2001) (“An invalid or erroneous judgment that

gives effect to a valid and enforceable liability does not create unjust enrichment.

. . .” (emphasis added)). The situation here is different. The defects in the order

granting retrospective relief are not merely technical. While Westar

unquestionably has a legal duty to pay some advancements to Lake, it contests the

amount. At least with respect to the difference between the amount Westar

believes in good faith it owes and the amount it was compelled to pay, it cannot

be said at this stage of the litigation that Westar has a legal duty to pay. In other

words, Westar may be able to argue that there is no underlying legal duty to pay

and, therefore, it should be able to recover. Thus, even if the Restatement draft

were controlling law, it still would not necessarily compel the result suggested by

the concurrence. The more important point, however, is that regardless of

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whether the application of a Restatement draft is appropriate, this is not the time

to opine on the matter. The issue is hypothetical, undefined by real facts, and the

adversary process has not been brought to bear. 9

Because the retrospective remedy ordered in this case is not necessary to

forestall an irreparable injury, the district court abused its discretion in granting

that relief. The prospective remedy, however, is based on the prevention of an

irreparable injury, and thus its compliance with the remaining equitable factors

and compliance with Rule 65 must still be analyzed.

2. Balance of Harms

9
The concurrence uses this hypothetical as a reason to suggest an
alternative procedure for district courts. Like the underlying hypothetical, the
analysis is neither moored to facts nor driven by the adversary process. The
concurrence suggests that district courts fully resolve advancement claims and
issue judgments under Rule 54(b) of the Federal Rules of Civil Procedure.
Consideration of Rule 54(b) seems evident, but the actual determination to issue a
54(b) judgment is a discretionary decision for district courts faced with real facts
and circumstances.
In its hypothetical case, the concurrence goes on to state that after entering
judgment, the district court may choose to enter an order mandating immediate
payment even after the losing party has posted a proper supersedeas bond. While
the concurrence references the right to a stay of execution on a money judgment
upon the posting of a supersedeas bond, it then nullifies that right in “the
advancement context” by suggesting that the district court could effectively deny
a stay by ordering immediate payment by the judgment debtor. Concurrence at p.
4. Whether such an implied exception to the right to a stay under Rule 62(d) of
the Federal Rules of Civil Procedure exists should only be resolved in a true case
or controversy with real facts and after the adversary process has been brought to
bear.

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 The stakes for both parties are significant in this case. If the prospective

relief is not issued, Lake faces a criminal trial without knowing whether his

attorneys can continue representing him. Such uncertainty could have a direct

impact on the quality of Lake’s representation. Westar, on the other hand, has

been ordered to pay significant sums for attorneys’ fees it believes are

unreasonable, and indeed contends it has already paid more than a reasonable

amount to cover all of Lake’s past and future legal expenses. Westar also argues

it will be unable to recover overpayments, since Lake will likely be unable to

repay any amount ruled unreasonable.

On balance, Lake has made the strong showing necessary to justify the

issuance of a mandatory preliminary injunction. Lake’s very liberty is at stake,

and such a threatened harm outweighs the mere threat of monetary loss.

Furthermore, Westar’s threatened harm is not the loss of the entire sum of

attorneys’ fees it pays, but only that amount determined to be unreasonable. It

contracted to accept that risk when it agreed to advance Lake’s attorneys’ fees. In

this case, the district court’s interim protest procedure diminishes that risk by

allowing Westar to challenge any unreasonable invoice prior to payment. Under

these circumstances, the threat to Lake’s liberty strongly outweighs the threat of

monetary loss to Westar.

3. Public Interest

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 The Kansas legislature has decided, as a matter of public policy, to allow

corporations to advance legal fees to officers. Kan. Stat. Ann. § 17-6305(e). In

so doing, it has endorsed the view that advancement, along with indemnity, is a

worthwhile mechanism for attracting talented individuals to corporate service,

notwithstanding the inevitable cost to corporations and the risk that some officers

who are not ultimately entitled to indemnity will nonetheless receive advances.

The public interest, as determined by the Kansas legislature, would therefore be

served by the issuance of a preliminary injunction protecting Lake’s right to

advancement.

4. Likelihood of Success on the Merits

a. Reasonableness standard

Westar does not dispute that its contract with Lake requires it to advance

attorneys’ fees in some amount. Rather, it argues it is only obligated to pay

reasonable attorneys’ fees, as defined by Kansas law. On appeal, Lake agrees the

advanced fees must be reasonable, but the two sides dispute the meaning of the

term “reasonable” in the context of advances.

The district court, relying on Delaware cases interpreting corporate bylaws

and advancement provisions, concluded the advancement contract was subject to

an “implied reasonableness” term. It then proceeded to determine the

reasonableness of payments made pursuant to a contractual advancement

provision. The court concluded the reasonableness of contractually bargained-for

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attorneys’ fees is different from the reasonableness of attorneys’ fees awarded as

a result of statutory fee-shifting provisions. In making this distinction, the court

did not cite to Kansas case law, but instead relied upon a Tenth Circuit case. See

United States ex rel. C.J.C., Inc. v. W. States Mech. Contractors, Inc., 834 F.2d

1533, 1547-50 (10th Cir. 1987). 10 In Western States, this court decided that, when

determining contractual attorneys’ fees, the requested fees are to be upheld if they

are not inequitable or unreasonable. Id. at 1549. Thus, even if a district court, in

the first instance, would fix the fee at a different amount, the amount requested

should be honored unless it would be inequitable or unreasonable to do so. Id. at

1549–50. In making its determination, the district court can still consider the

usual factors used in computing reasonable attorneys’ fees. 11 Id. at 1550.

10
The Western States court determined the same standard applied under
both federal and New Mexico state law, and so did not decide the question of
whether to apply federal or state law. United States ex rel. C.J.C., Inc. v. W.
States Mech. Contractors, Inc., 834 F.2d 1533, 1549 n.17 (10th Cir. 1987).
11
The Kansas Rules of Professional Conduct provide a list of factors for
evaluating the reasonableness of attorneys’ fees. Those factors are:

(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment by the
lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
(continued...)

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 In attacking this ruling, Westar argues that this “inequitable or

unreasonable” approach is a federal standard that has never been adopted by a

Kansas court. Westar claims Kansas courts apply a set of factors to determine the

reasonableness of attorneys’ fees, regardless of whether the attorneys’ fees are

awarded under a fee-shifting statute or a contract.

As an initial matter, the standards are not as different as Westar suggests.

Under either standard, the district court analyzes the fee award using essentially

the same factors. The chief difference appears to be who bears the burden of

proof on the question of reasonableness. While the Western States court did not

discuss the burden of proof, application of its ruling requires fee awards to be

upheld unless the payor proves they are unreasonable or inequitable. Under

Westar’s preferred standard, the reasonableness of the fees must be proved by the

party seeking the award.

The Kansas Supreme Court has applied the reasonableness factors of Rule

1.5 of the Kansas Rules of Professional Conduct to set fees both when statutes

11
(...continued)
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.

Kan. Rules of Prof’l Conduct R. 1.5(a).

-24-
allow for the recovery of reasonable attorneys’ fees and when a contract provides

for the recovery of attorneys’ fees. Johnson v. Westhoff Sand Co., 135 P.3d 1127,

1135 (Kan. 2006) (awarding attorneys’ fees pursuant to insurance statute); Davis

v. Miller, 7 P.3d 1223, 1236 (Kan. 2000) (awarding attorneys’ fees pursuant to a

contractual fee shifting provision); City of Wichita v. B G Prods., Inc., 845 P.2d

649, 652 (Kan. 1993) (awarding attorneys’ fees pursuant to condemnation

statute). The Kansas Supreme Court has not, however, addressed the specific

question of who bears the burden of proof when a contract provides for the

advancement of attorneys’ fees and the payor disputes their reasonableness.

Since the Kansas Supreme Court has not ruled on this issue, a federal court sitting

in diversity must predict what the Kansas Supreme Court would do if faced with

the issue. Pompa v. Am. Family Mut. Ins. Co., 520 F.3d 1139, 1142 (10th Cir.

2008).

Courts in other states have considered how to assign the burden of proof

when attorneys’ fees are based on contract. Some courts, without explanation,

have assigned the burden to the party seeking payment. See, e.g., Kaiser v.

MEPC Am. Props., Inc., 518 N.E.2d 424, 428 (Ill. App. 1987); Stonehenge Land

Co. v. Beazer Homes Invs., L.L.C., 893 N.E.2d 855, 869 (Ohio App. 2008). When

contracts allow for the recovery of attorneys’ fees without expressly referencing

reasonableness, other state courts have taken approaches similar to that in

Western States. See, e.g., McDowell Mountain Ranch Cmty. Ass’n, Inc. v.

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Simons, 165 P.3d 667, 672 (Ariz. App. 2007); Storm Assocs., Inc. v. Baumgold,

440 A.2d 306, 310 (Conn. 1982); Carter v. Warren Five Cents Sav. Bank, 564

N.E.2d 579, 583-84 (Mass. 1991). The latter courts reason that the parties have

bargained for one side to pay the other side’s actual attorneys’ fees, and the

contract should be enforced so long as the fees are not unreasonable or excessive.

Storm Assocs., 440 A.2d at 310; Carter, 564 N.E.2d at 583.

In this case, the indemnity provision in the Articles of Incorporation allows

for the recovery of expenses, including attorneys’ fees, “reasonably incurred.”

The Articles frame the advancement right as a right ancillary to the right to

indemnification: “[t]he right to indemnification . . . shall include the right to be

paid by the Corporation the expenses incurred in defending any such proceeding

in advance of its final disposition.” The advancement provision, unlike the

indemnity provision, does not further qualify “expenses.” Because advancement

is included within indemnity and the advancement provision does not define the

term “expenses,” a logical reading of the Articles would indicate that the word

“expenses” in the advancement provision has the same meaning as it does in the

indemnity provision. The indemnity provision defines expenses to include

attorneys’ fees “reasonably incurred.” The advancement provision should

therefore be read to have the same limitation.

Since the Articles only provide for the advancement of attorneys’ fees

reasonably incurred, the cases interpreting contractual fee-shifting provisions with

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no reasonableness limitation, including Western States, are inapplicable. There is

no reason to believe the Kansas Supreme Court would apply the Western States

standard in a situation factually different from Western States. The Kansas

Supreme Court would instead most likely require the party seeking payment to

justify the reasonableness of the fees by reference to Rule 1.5 of the Kansas Rules

of Professional Conduct.

While the district court erroneously adopted a standard which effectively

shifted the burden of proof to Westar, the district court’s order was not explicit

regarding the burden of proof in the interim protest procedure. The order

assigned Westar the initial burden of objecting to Lake’s invoices, and required

disputes to be submitted to the magistrate judge for resolution. Assigning Westar

the initial burden of going forward with its objections was not erroneous, so long

as Lake has the burden of proving the reasonableness of the fees before the

magistrate judge. On remand, the district court should assign Lake the burden of

proof on the issue of reasonableness in the interim protest proceedings before the

magistrate judge.

b. Reasonableness of out-of-state attorneys’ fees.

Westar attacks the district court determination that out-of-state attorneys’

fees were not per se unreasonable given the complexity of the criminal trials. The

court’s ruling was sound. Kansas recognizes trial judges as experts on the topic

of attorneys’ fees. Johnson, 135 P.3d at 1135. The district court was well

-27-
acquainted with the difficulty of the case after presiding over two full trials.

While local rates are one factor Kansas uses to determine the reasonableness of

attorneys’ fees under Rule 1.5 of the Kansas Rules of Professional Conduct, the

difficulty of the case is another, and the district court did not abuse its discretion

in refusing to foreclose the award of out-of-state rates.

c. Set-off of past advances against future advances.

The district court’s rejection of Westar’s set-off argument was also

warranted. Ceasing advances as a set-off for perceived past overpayments is, as

the Delaware Supreme Court has decided, inappropriate before the right to

indemnification has been determined. Kaung v. Cole Nat’l Corp., 884 A.2d 500,

510 (Del. 2005). In other words, once advances have been made, they cannot be

recouped until indemnification is adjudicated. Id. If corporations cannot make

recoupment claims until the indemnification stage, they should not be permitted

to achieve the same result by setting off current payments against past ones.

Westar contracted for the risk that it might advance fees in excess of its

indemnity obligation. To the extent it believes it has already advanced fees

sufficient to cover the entirety of Lake’s legal defense, Westar must save that

argument for the indemnity proceeding.

B. Rule 65

Because the district court’s order constituted preliminary injunctive relief,

it must comply with the relevant provisions of Rule 65 of the Federal Rules of

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Civil Procedure. Those provisions include the notice requirement of Rule

65(a)(1). 12

Westar complains it was not given adequate notice of the grant of

injunctive relief, and therefore the order must be reversed. Rule 65(a)(1) states:

“The court may issue a preliminary injunction only on notice to the adverse

party.” Fed. R. Civ. P. 65(a)(1). The Supreme Court has interpreted this

provision to require a “fair opportunity to oppose the application and to prepare

for such opposition.” Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto

Truck Drivers Local No. 70, 415 U.S. 423, 432 n.7 (1974).

Westar notes the order was granted after the district court requested

supplemental briefing, with no opportunity for response, on how it should proceed

with Lake facing a third criminal trial. In Lake’s supplemental brief, he explicitly

requested equitable relief for the first time. Westar complains it was unable to

respond to this brief and thus unable to present its case opposing equitable relief.

Westar was, however, fairly apprised of the likelihood of equitable relief.

The district court’s order requesting supplemental briefing was solely directed to

the issue of “Westar’s liability with respect to future advancement of legal fees

12
Westar asked the district court to impose a security pursuant to Rule
65(c), but it has not appealed the court’s denial of that request and so we do not
address that issue. As a consequence, it is not necessary for this court to consider
whether the amount to be secured is the amount claimed to be unreasonable or the
total amount ordered paid.

-29-
and expenses in the upcoming third criminal trial.” Westar itself suggested the

court grant interim relief at prevailing local rates. While the district court

decided to grant interim relief at a higher rate than Westar requested, Westar can

hardly complain it lacked notice of the possibility of an interim remedy. 13

IV. Conclusion

The district court’s order constituted preliminary injunctive relief and was

thus immediately appealable. Therefore, Lake’s motion to dismiss is denied.

The district court abused its discretion in ordering the retrospective remedy in the

absence of proof of irreparable harm. The prospective remedy requiring Westar

to advance future attorneys’ fees in the face of irreparable harm, however, was

not an abuse of discretion. In granting interim relief to Lake, the district court

erred in assigning the burden of proving reasonableness to Westar. On remand,

the district court must assign the burden of proving the reasonableness of requests

for advances to Lake.

The district court’s orders granting and modifying interim relief are hereby

affirmed in part and reversed in part. The matter is remanded for further

proceedings consistent with this opinion.

13
Because Westar had sufficient notice prior to the grant of the preliminary
injunction, there is no need to address Lake’s alternative argument that Westar’s
motions objecting to the preliminary remedy cured any notice defect.

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07-3219, 07-3280 - Westar Energy, Inc. v. Lake

HARTZ, Circuit Judge, concurring:

I join Judge Murphy’s opinion. I write separately to note a peculiar result

of our disposition and to suggest what appears to me to be a superior way for

district courts to handle advancement requests in the future. To assure that both

parties to an advancement dispute can obtain timely appellate resolution of the

merits, district courts should consider entering orders under Fed. R. Civ. P. 54(b)

when necessary for decisions on retrospective relief to be final and appealable.

The peculiar result in this appeal is that Westar’s victory with respect to

retrospective relief (we are setting aside the order to pay a portion of attorney

fees already incurred by Lake) is probably an empty one. The victory scarcely

improves its situation. Under threat of contempt, Westar has already paid what

was ordered, 1 and I see no clear avenue for Westar to reclaim that money.

Ordinarily, when a judgment is reversed, the prevailing party has a claim

for unjust enrichment to recover what it transferred to the opposing party under

that judgment. See Restatement (Third) of Restitution and Unjust Enrichment

1
When Westar did not promptly pay as ordered, Lake moved in district
court for an order to show cause why Westar was not in contempt. Westar then
moved in this court for a stay of the order to pay, offering to post a bond or other
adequate security required by the court. We denied the stay on the ground that
Westar had not shown all the factors required by 10th Cir. R. 8.1. See Order,
Oct. 16, 2007.
§ 18 (Tentative Draft No. 1, 2001) (Tentative Restatement) 2. The trial or

appellate court may order the recovery. See id. at cmt. b. But the ground for the

reversal can affect whether recovery is proper or likely. The ground for reversal

may be a procedural matter that has nothing to do with whether the party that

prevailed on appeal owes a lawful debt to the opposing party. If the party that

prevailed on appeal actually owes the money set forth in the (reversed) judgment,

then one could hardly say that the opposing party had been “unjustly enriched” by

payment of the judgment amount. As stated in the Tentative Restatement, “An

invalid or erroneous judgment that gives effect to a valid and enforceable liability

does not create unjust enrichment; the transfer finds a sufficient legal basis in the

underlying liability, notwithstanding the defective judgment.” Id. cmt. e.

We may well have that situation here. Our reversal of the preliminary

injunction is on the ground that Lake failed to show that payment was necessary

to prevent irreparable injury. Our ruling says nothing about whether Westar had a

legal obligation to advance to Lake a portion of the attorney fees he has already

paid. Westar can recover in restitution what it paid Lake (as ordered by the

district court) only if some future proceeding determines that Westar in fact did

2
The American Law Institute’s Restitution project has not been completed,
so language in the Tentative Draft may be revised. But Tentative Draft No. 1 was
presented at the 2001 membership meeting and approved subject to “the usual
editorial prerogative” of the Institute’s Council and the discussion at the annual
meeting. 78th Ann. Meeting, A.L.I. Proc., May 15, 2001, at 212. There were no
comments by the members regarding § 18. See id. at 207.

-2-
not owe Lake an advance of that money. (I am not addressing here what Westar

could recover if, at the end of Lake’s various trials, it is apparent that he is not

entitled to indemnification and must refund all the advances he received, as

required by the contractual conditions of the advancement.) It would seem

unlikely that the district court in this case would determine that Westar has made

such a showing. After all, it has already ruled to the contrary and we have said

nothing that would undermine its confidence in that prior ruling. Perhaps Westar

could bring a restitution action in some other court; but the reality is that after

any necessary removal or transfer of the case, the action would end up before the

same judge as in this case; and even if it came before another judge, that judge is

likely to show deference to the ruling by the judge in this case, who is the one

most familiar with the performance of Lake’s attorneys.

This peculiarity in the present case—that Westar prevails on appeal but, as

a practical matter, is no better off—results from the presence in the district-court

case of causes of action in addition to Lake’s claim for the advancement of

attorney fees that have already been incurred. These other causes of action have

not been resolved, so the district court has yet to enter a final judgment. The

situation would be different if Lake’s claim for advancement of already incurred

fees were the only claim before the district court. In that event, the district

court’s decision that Westar should have advanced $X to Lake would be (once put

-3-
in proper form) a final, appealable judgment. 3 Thus, once the district court ruled

on advancement, Westar could appeal this final decision on the merits to our

court. If Westar had paid on a judgment that advancement was due from it to

Lake, reversal by this court would entitle it to restitution from Lake of what it had

overpaid.

This would be the case even if the district court, in addition to entering

judgment that advancement was due, also entered an order compelling Westar to

pay Lake immediately. Before getting to that issue, though, I should explain why

such an order might be entered. An order to pay a money judgment forthwith is

not something we see every day. But it could make sense in the advancement

context. After all, if Lake had only a money judgment, Westar would have the

right to stay execution on the judgment by filing a supersedeas bond. See Fed. R.

Civ. P. 62(d); Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres,

Inc., 87 S. Ct. 1 (1966) (Mem. Op. of Harlan, J.) (stay of money judgment is

matter of right if supersedeas bond is posted); 12 James Wm. Moore et al.,

Moore’s Federal Practice § 62.03[1] (3d ed. 2008) (same); 11 Charles A. Wright,

et al., Federal Practice and Procedure § 2905 at 520 (2d ed. 1995) (same). Such

3
Perhaps it may seem that the decision on advancement would be only
interlocutory because Westar may be able to recover any advancements at the
conclusion of Lake’s litigation when Lake’s claim for indemnity is resolved. But
Lake’s advancement claim is a distinct cause of action, not an interlocutory
matter in an action for indemnity. Advancement and indemnity are separate
contractual rights owed to Lake; the duty to advance funds is not dependent on
any showing of likelihood that indemnity will later be required.

-4-
a bond is usually adequate to protect the interests of the judgment creditor. In the

advancement context, however, a stay could render the judgment useless even if

the corporation posted a bond requiring payment to the officer if the corporation

lost the appeal. The purpose of advancement is to enable corporate officers to

obtain capable counsel to defend civil and criminal claims against them; counsel

may be willing to represent an officer only if payment of fees is prompt and

unconditional, and advancement can ensure such payment. Staying a judgment

for advancement would defeat this purpose. Indeed, by the time the appeal is

resolved, the advancement issue could be mooted by conclusion of the litigation

for which the officer needed the advance. An officer who lost the litigation

would likely be required to repay all advancements. In that event, even if the

officer prevailed on the advancement appeal, there would be no benefit from an

appeal bond: any payment to the officer from the bond would be deemed an

advancement, and any advancement would need to be repaid to the corporation.

As a result, the officer’s attorney would not be paid. The attorney would, in

essence, have been working on a contingent-fee basis (getting paid only if the

client succeeded in the litigation), thereby defeating the purpose of having a right

to advancement rather than only a right to indemnity. Thus, an injunction

ordering immediate payment could be appropriate in an advancement case.

Although the district court or this court might exercise its discretion to stay the

-5-
order upon filing a bond, the corporation would not have an unqualified right to

post a bond to avoid immediate payment. See Fed. R. Civ. P. 62(c).

Returning to the principal point, entry of an order requiring immediate

payment of a final judgment that advancement is due would not impair the

corporation’s ability to obtain an appellate ruling on the merits. Even though the

order requiring payment might be disposed of on appeal on a nonmerits ground

(such as failure to show irreparable injury), we would still need to review the

judgment on the advancement claim. If we held that advancement was not

required, the corporation could obtain restitution, subject, of course, to ordinary

defenses, see Tentative Restatement § 18. To me, this is a good result. The

corporation would have the ability to protect its rights without delaying an

advancement to the officer that the district court ruled to be necessary.

This same result can be obtained even if the case before the district court,

as here, includes claims other than advancement for previously incurred attorney

fees. All that is necessary is for the district court, upon deciding the advancement

issue, to enter a final judgment on that issue under Fed. R. Civ. P. 54(b). Such a

final judgment is proper despite the presence of unresolved claims if the district

court “determines that there is no just reason for delay.” Id. I would think that

such a determination would ordinarily be proper for an advancement claim. Not

only would use of Rule 54(b) help the corporation that wishes to challenge an

-6-
advancement ruling, it could also be critical to a corporate officer if the ruling is

to deny an advancement.

This case presents challenging procedural issues. I can hardly fault the

district court for how it proceeded in a case of first impression in this circuit. In

the future, however, I would urge district courts to consider using Rule 54(b) to

create final judgments when advancement claims for previously incurred attorney

fees are joined with other matters.

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