Exxon Corp. v. Burglin

United States Court of Appeals,

Fifth Circuit.

No. 94-20123

Summary Calendar.

EXXON CORPORATION, Plaintiff-Appellee,

v.

Cliff BURGLIN, Charles Hamel, T.J. Miklautsch, Weldtest, Inc.,
and CFM Corporation, Defendants-Appellants.

Jan. 23, 1995.

Appeal from the United States District Court for the Southern
District of Texas.

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Cliff Burglin, Charles Hamel, T.J.

Miklautsch, Weldtest, Inc., and CFM Corporation (Defendants) appeal

for a second time an award of attorneys' fees in favor of

plaintiff-appellee Exxon Corporation (Exxon). We vacate and remand

for entry of judgment in conformity herewith.

Facts and Proceedings Below

This suit originated in Exxon's purchase of Defendants'

interest in a limited partnership, the property of which included

two Alaskan oil and gas leases. Defendants brought suit in Alaska,

claiming that Exxon, a general partner in the limited partnership,

had breached its fiduciary duty under the partnership agreement by

failing to disclose information necessary for the valuation of

Defendants' interests in the purchased leases.1 Thereafter, while

1
Defendants also alleged misrepresentation and fraud.

1
the suit in Alaska was still pending, Exxon sued in Texas state

court, seeking a declaration that it had no duty to disclose

information it considered confidential. On the basis of diversity

of citizenship, Defendants removed the Texas action to the court

below, where, after extensive discovery, Exxon was awarded summary

judgment and full attorneys' fees incurred amounting to

$664,454.29.

On appeal, this Court upheld the grant of summary judgment but

reversed and remanded the award of full attorneys' fees, finding

error in the district court's choice of Texas law. Exxon Corp. v.

Burglin, 4 F.3d 1294 (5th Cir.1993). We remanded the action with

instructions to apply Alaska, not Texas, fee-shifting rules. The

choice of law was critical because, under Alaska Rule of Civil

Procedure 82, where a money judgment is not awarded a court

generally may award full attorneys' fees only in the case of

vexatious or otherwise bad-faith conduct by the losing party. In

all other such cases, the goal of Alaska's fee-shifting rules is

partial compensation: to shift a portion of the prevailing party's

fees onto the unsuccessful litigant. Our remand specifically

instructed the district court to apply these principles in

calculating a new fee award.

On remand, Exxon filed a supplemental motion to set and

recover attorneys' fees. Over Defendants' objection, the district

court awarded Exxon $624,631.91, which included fees for Exxon's

appeal. This new award represents ninety-four percent of the

initial, vacated award and eighty percent of the total amount of

2
fees Exxon incurred before judgment and on appeal. We agree with

Defendants that this award is manifestly unreasonable under Alaska

law and therefore vacate the judgment of the district court.

Discussion

Alaska law allows partial recovery of pre-judgment fees

incurred by the prevailing party. ALASKA R.CIV.P. 82(b)(2). Before

the court can determine what fraction of the fees to shift, the

prevailing party must establish the total amount actually and

necessarily incurred. Id. The district court in this case set the

amount incurred before the first appeal at $664,454.29. On remand,

the court added to this amount the $116,335.60 Exxon expended on

appeal, bringing the aggregate to $780,789.89. From this total

figure, the district court calculated a new award of $624,631.91.

Before determining whether the new award was excessive, we consider

Defendants' contentions with respect to the aggregate.

I. The Aggregate

A. Appellate Fees

Defendants argue that the district court erred in including

amounts attributable to appellate work in the aggregate. We agree.

In the last appeal, we held that "[t]he award of attorneys' fees is

governed by the law of the state whose substantive law is applied

to the underlying claims" and cited Rule 82 of the Alaska Rules of

Civil Procedure. Exxon Corp. v. Burglin, 4 F.3d 1294, 1302 (5th

Cir.1993). Construing our instructions to include the recovery of

appellate fees, the district court relied on section 508 of the

Alaska Rules of Appellate Procedure. Under this rule, an appellate

3
court may allow a party prevailing on appeal to recover partial

attorneys' fees and costs incurred on appeal or, in the case of a

frivolous suit, full fees.

The critical issue here is whether Alaska Rule 508 or Federal

Rule of Appellate Procedure 38 applies to the award of appellate

fees. Federal courts apply state substantive law "when

adjudicating diversity-jurisdiction claims, but in doing so apply

federal procedural law to the proceedings." Cates v. Sears,

Roebuck & Co., 928 F.2d 679, 687 (5th Cir.1991); see Hanna v.

Plummer, 380 U.S. 460, 465-67, 85 S.Ct. 1136, 1141, 14 L.Ed.2d 8

(1965); Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82

L.Ed. 1188 (1938). Where the state rule reflects a substantive

state policy not in conflict with the plain meaning of the federal

rule, then the state rule is the rule of decision and should be

applied under the terms of the Erie doctrine.2 See Alyeska

Pipeline Co. v. Wilderness Soc'y, 421 U.S. 240, 260 n. 31, 95 S.Ct.

1612, 1622 n. 31, 44 L.Ed.2d 141 (1975); see also Powell v. Old

Southern Life Ins. Co., 780 F.2d 1265, 1267 (5th Cir.1986)

("[F]ederal courts in diversity ... follow[ ] state statutes

allowing attorney's fees unless the state practice directly

conflicts with a ... rule of court."); see also 6 Jeremy C. Moore,

MOORE'S FEDERAL PRACTICE ¶ 54.78 (2d ed. 1994) (observing that state

2
It is on this basis that Alaska Rule 82, dealing with
pre-judgment attorneys' fees tied to the merits of the
litigation, applies in diversity actions in federal court. Rule
82 is a substantive rule not in conflict with federal law. See
Powell v. Old Southern Life Ins. Co., 780 F.2d 1265, 1267 (5th
Cir.1986) (noting that state fee-shifting rules apply when not in
conflict with a federal "rule of court").

4
law of attorneys' fees applies "unless ... application of the state

law would infringe upon some statute, rule, or important federal

policy"). Where, on the other hand, a federal procedural rule is

"clearly applicable," then it applies unless unconstitutional or

outside the scope of the Rules Enabling Act. Walker v. Armco Steel

Corp., 446 U.S. 740, 747-49, 100 S.Ct. 1978, 1984, 64 L.Ed.2d 659

(1980). As one treatise has remarked, "If the [federal] Rule

speaks to the point in dispute and is valid, it is controlling, and

no regard need be paid to contrary state provisions." 19 Charles

A. Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND

PROCEDURE § 4508 (1982).

By allowing even minimal recovery of attorneys' fees in every

civil appeal, Alaska Rule 508 directly collides with FED.R.APP.P.

38, which allows the recovery of attorneys' fees only in the case

of a frivolous appeal.3 The federal rule therefore applies unless

it is unconstitutional or outside the scope of the Rules Enabling

Act. The burden of establishing the invalidity of a federal rule

is heavy because all federal rules of court enjoy presumptive

validity. Id. Indeed, to date the Supreme Court "has never

squarely held a provision of the civil rules to be invalid on its

3
Moreover, both the federal and state rules are designed to
penalize frivolous appeals and "to compensate the injured
appellee for the delay and added expense of defending the ...
[lower] court's judgment." Burlington Northern Railroad Co. v.
Woods, 480 U.S. 1, 7, 107 S.Ct. 967, 970, 94 L.Ed.2d 1 (1987).
Accordingly, because the "purposes underlying the Rule [38] are
sufficiently coextensive with the asserted purposes of the ...
[state rule]," Rule 38 can be said to occupy the "field of
operation so as to preclude ... application [of the state rule]
in federal diversity suits." Id. at 7, 107 S.Ct. at 970.

5
face or as applied." Paul M. Bator, HART AND WECHSLER'S THE FEDERAL

COURTS AND THE FEDERAL SYSTEM 769 (1988). Moreover, because the Supreme

Court and this Circuit have already specifically held that Rule 38

conforms to Articles I and III of the Constitution, we need only

consider its as-applied legitimacy under federal statutory law.

Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 5-8, 107

S.Ct. 967, 970-71, 94 L.Ed.2d 1 (1987); Affholder, Inc. v.

Southern Rock, Inc., 746 F.2d 305, 310-11 (5th Cir.1984).

The Rules Enabling Act confers upon the Supreme Court

rulemaking authority over general matters of practice and procedure

in the federal courts. The Act mandates, however, that these

federal procedural rules "shall not abridge, enlarge or modify any

substantive right." 28 U.S.C. § 2072. Evidently, the district

court assumed that Alaska Rule 508 creates or reflects some

significant substantive right similar to that found in Alaska Rule

82. We disagree. FED.R.APP.P. 38 does not invade the realm of

state substantive law protected by the Rules Enabling Act. Even if

Alaska Rule 508 is not wholly procedural, it is certainly more

procedural than substantive.4 See Hanna, 380 U.S. at 470-72, 85

S.Ct. at 1144. In so concluding, we observe that Alaska Rule 508

is clearly distinguishable from Alaska Rule 82, which represents a

4
A procedural rule may marginally affect state substantive
policies without running afoul of the Rules Enabling Act.
Otherwise, virtually every rule of federal procedure would be
rendered invalid. According to the Supreme Court, federal rules
"which incidentally affect litigants' substantive rights do not
violate ... [the Rules Enabling Act] if reasonably necessary to
maintain the integrity of that system of rules." Burlington, 480
U.S. at 5, 107 S.Ct. at 970 (discussing FED.R.APP.P. 38).

6
substantive state right to attorneys' fees. Unlike Rule 508, Rule

82 wholly keys the award of fees to success on the merits. That

is, it is available only to the "prevailing party," which Alaska

law defines as the party which wins the central issue in dispute.

Foss Alaska Line, Inc. v. Northland Services, Inc., 724 P.2d 523,

526 (Alaska 1986). An award under Alaska Rule 82 thus is based on

the success or defeat of the underlying legal claim. See

Affholder, 746 F.2d at 310. Conversely, an award of appellate fees

under Alaska Rule 508 may have nothing to do with the merits of the

underlying suit or with any rights that predate the suit's filing.5

Such an award, in short, does not necessarily depend on which party

ultimately prevails.6

Thus, unlike Alaska Rule 82, which links recovery to the

merits and reflects a substantive state policy in favor of

compensating litigants somehow successful on the underlying cause

of action, the Alaska appellate rule essentially "affects only the

5
The rule is broadly worded: "Attorney's fees may be
allowed in an amount to be determined by the court." ALASKA
R.APP.P. 508(e). This provision contrasts significantly with the
fee-shifting schedule found in Alaska Rule 82. Rule 82 fixes an
award either as a percentage of the total money judgment or, in
the case of no money judgment, as a percentage of the actual
attorneys' fees. Any deviation by the trial court from these
fixed awards requires reasonable justification. See ALASKA
R.CIV.P. 82(b) (1994) (amended).
6
For instance, if a prevailing party won a motion for
summary judgment that was reversed on appeal, the successful
appellant could recover appellate fees under Rule 508 regardless
of his success or failure at the trial on remand. Where, on the
other hand, a party prevails on the merits and therefore recovers
attorneys' fees under Rule 82, a reversal on the merits voids the
award. See, e.g., Demoski v. New, 737 P.2d 780, 787 (Alaska
1987).

7
process of enforcing litigants' rights and not the rights

themselves." Burlington, 480 U.S. at 8, 107 S.Ct. at 971 (1987);

see also Chambers v. NASCO, Inc., 501 U.S. 32, 50-52, 111 S.Ct.

2123, 2136, 115 L.Ed.2d 27 (1991) (giving as an example of a state

substantive law "fee-shifting rules that embody a substantive

policy, such as a statute which permits a prevailing party in

certain classes of litigation to recover fees").7 This difference

tracks the blurry line between substance and procedure in Erie8 and

the Rules Enabling Act and critically distinguishes Rule 508 from

Rule 82 and from other fee-shifting procedures that hinge an award

on success in the underlying lawsuit. Nissho-Iwai Co., Ltd. v.

Occidental Crude Sales, Inc., 848 F.2d 613, 623 (5th Cir.1988);

see also Chambers, 501 U.S. at 58-59, 111 S.Ct. at 2140 (Scalia, J.

dissenting) (observing that the only form of fee-shifting that is

substantive is that which shifts fees "as part of the merits

7
Moreover, unlike Rule 82, the Alaska Supreme Court
typically applies the appellate rule to allow only very low-level
awards between $500 and $1000, fees that more approximately
resemble cost awards.
8
The Supreme Court has made clear that Erie does not apply
when a state law conflicts with a federal rule of procedure.
Hanna, 380 U.S. at 469-70, 85 S.Ct. at 1143. Erie 's distinction
between substance and procedure applies only when there is no
contrary federal practice. Thus, "what is "substantive' for Erie
purposes, and what is "substantive' for purposes of the Rules
Enabling Act are not necessarily the same." Affholder, 746 F.2d
at 310; see also Hanna, 380 U.S. at 471-72, 85 S.Ct. at 1144.
Because of the reluctance of the federal courts to overturn or
restrict duly promulgated federal rules and because we assume
that, prior to promulgation, "any possible intrusions upon
substantive rights ... have been thoroughly considered,"
Affholder, 746 F.2d at 310 n. 25, a finding that a state policy
is substantive for purposes of the Rules Enabling Act is made in
a narrower set of circumstances than it is for purposes of Erie.

8
award"). Cf. Powell, 780 F.2d at 1268 (allowing recovery of

attorneys' fees on appeal where state insurance law makes the party

prevailing on the merits entitled to them).9

In sum, because the issue of attorneys' fees on appeal under

Alaska law is one of procedure, we hold that, in this case,

FED.R.APP.P. 38 does not violate the limitations of the Rules

Enabling Act and that therefore Alaska Rule 508 has no application

for federal courts sitting in diversity.10 Accord Dennis S.

Josephson, Inc. v. Alaska Int'l Constr., Inc., 1989 WL 124096 (9th

Cir.1989) (holding that Alaska Rule 508's conflict with FED.R.APP.P.

38 makes the state rule inapplicable) (unpublished opinion).

The controlling rule is thus the federal rule. Under Rule

38, attorneys' fees are recoverable, in this Court's discretion,

only in the case of frivolous or otherwise bad-faith conduct by the

losing party. Affholder, 746 F.2d at 308-309 (fees available only

9
Were we to conclude that Rule 508 is substantive, we would
nevertheless have to reverse for abuse of discretion. The
partial awards routinely allowed by the Alaska Supreme Court for
appellate work are apparently not fixed on the basis of a
percentage of the actual fees. Instead, they are flat, small
awards. A review of 508(e) awards by the Alaska Supreme Court in
cases cited by Exxon show recovery repeatedly in amounts of $500,
$750, and $1,000—far from the $93,068.48 awarded here. Moreover,
when both parties are partially successful, the Alaska Supreme
Court has expressed reluctance to award any appellate fees at
all. Continental Ins. Co. v. United States Fidelity & Guaranty
Co., 552 P.2d 1122, 127 & n. 14 (Alaska 1976).
10
Moreover, although we have held that Alaska Rule 82 does
apply in a diversity context, that rule cuts off the recovery of
attorneys' fees at the moment of final judgment. Torrey v.
Hamilton, 872 P.2d 186, 187 (Alaska 1994). The district court
therefore could not have relied on the substantive state right
embodied in Rule 82 to allow the recovery of fees incurred on
appeal.

9
if the appellate court finds "the appeal to be utterly without

merit, the appellant's arguments totally unsound, the judges' time

and energies wasted, and the appellee put to the inconvenience and

expense of employing counsel to resist such a frivolous appeal")

(citation omitted). The rule is not intended otherwise to deter

litigants from filing appeals. In this case, Defendants were not

frivolous in taking their prior appeal to this Court; indeed, they

were partially successful. See Exxon v. Burglin, 4 F.3d 1294 (5th

Cir.1993). The district court erred by including $116,335.60

appellate fees in the aggregate figure and, consequently, in its

award of $93,068.48 in appellate fees.

B. Other Contentions

Defendants also assert error in the district court's refusal

to require more detailed documentation from Exxon. Defendants

claim that Exxon's affidavits on attorneys' fees fail to link

specifically and in detail the hours expended to the work

performed, as opposed to simply who performed it. Instead, Exxon

has reported generally the nature of the work and specifically the

number of hours expended—without making any direct link between the

two items. Furthermore, Defendants contend that Exxon failed to

specify whether and to what degree in-house counsels' fees related

to their posture as litigators for Exxon as opposed to their

posture as clients to outside counsel. The district court ruled

these objections waived because they had not been urged before the

first appeal. According to Defendants, they could not have lodged

objections based on Alaska law any earlier because, before the

10
prior appeal, attorneys' fees were calculated under Texas law.

We believe the district court did not abuse its discretion in

refusing to entertain these objections. Both Texas and Alaska law

require an initial calculation of the actual amount of fees

expended and subject the total to a test of reasonableness. Had

Defendants wished to contest details of Exxon's affidavits, they

could have done so when the aggregate figure was calculated before

the first appeal. Instead, Defendants chose only to challenge the

district court's choice of law and not the averments in the

affidavits, which are, in any event, sufficiently detailed to

inform Defendants what work was done, by whom, and how many hours

were expended. For these reasons, we will not consider the merits

of these two contentions.

Having subtracted the appellate fees, we believe the total

figure ($664,454.29) arrived at by the district court to be

otherwise correct and reasonable. We now turn from this total

figure to the actual award.

II. The Award

Alaska Rule 82 governs the award of attorneys' fees up to the

time of judgment. During the pendency of the last appeal in this

case, the Alaska Supreme Court amended Rule 82 to remedy inequities

in its application. Consistent in both the old and new versions of

the rule is the principle of partial compensation in instances

where no money judgment is recovered. Alaska is the only state to

have rejected outright the American Rule, under which parties

generally bear the cost of their own attorneys' fees. Kevin

11
Michael Kordziel, Rule 82 Revisited: Attorney Fee Shifting in

Alaska, 10 ALASKA L.REV. 429, 430 (1993). In lieu of the American

Rule, Alaska has adopted a rather complicated fee-shifting scheme,

one that mediates between the extremes of full recovery and no

recovery at all. According to the Alaska Supreme Court, "The

purpose of Civil Rule 82 is to partially compensate a prevailing

party for the costs and fees incurred ... and not to penalize a

party for litigating a claim in good faith." Malvo v. J.C. Penney

Co., 512 P.2d 575, 588 (Alaska 1973). Absent bad faith, an award

of full fees is by itself considered "manifestly unreasonable, and

it constitutes an abuse of discretion." Atlantic Richfield Company

v. Alaska, 723 P.2d 1249, 1252 (Alaska 1986). We specifically

cited this language of Atlantic Richfield Company (as well as its

"partial compensation" language) in our prior opinion. Exxon Corp.

at 1302. That actual fees will on occasion be many times more than

the award is, in the words of the Alaska Supreme Court,

"irrelevant." State v. Abbott, 498 P.2d 712, 731 (Alaska 1972).

Both the new and old versions of the rule distinguish

initially between suits that result in money judgments and those

that do not. Where the prevailing party recovers a money judgment,

compensation for attorneys' fees represents a fraction of the

actual judgment, not to exceed twenty percent of the first $25,000

(and 10% on the balance) in case of trial, unless the trial court

reasonably concludes otherwise. Where the prevailing party

recovers no money judgment, the category relevant here,

compensation for attorneys' fees represents a portion of the total

12
fees actually and necessarily incurred. It is with respect to this

category that the stated methodology of the new and old rules

diverges. Under the old rule, attorneys' fees were to be "fixed by

the court in its discretion in a reasonable amount." ALASKA R.CIV.P.

82(a)(1) (1987) (former version). The new rule, in contrast, fixes

such awards at twenty percent of the prevailing party's total

attorneys' fees in the case.11 The rule, however, allows variation

of the award upon the trial court's consideration of specified

factors. These factors "generally address the unique aspects of

the litigation at issue, the reasonableness of the parties'

behavior, and the considerations of vexatiousness, bad faith, or

other improper motive"—factors employed, though unspecified, under

the former version of Rule 82. Kordziel, supra, at 450.

The initial award, incorrectly made under Texas law, was made

before the amendment of Rule 82. During the first appeal to this

Court, the rule was amended to its present form. On remand, Exxon

filed a new motion for attorneys' fees, arguing that the old rule

should still apply. The district court, though adverting to the

issue, did not explicitly decide it. Noting that differences

between the two versions were minimal because both grant

discretion, the district court simply applied the new rule to the

controversy. On appeal, Exxon has effectively abandoned any

11
The new rule subcategorizes awards for non-money judgments
according to the presence or absence of a trial. In non-money
judgment cases that went to trial, the award is to be thirty
percent of actual fees. In non-money judgment cases that did not
go to trial, the situation here, the award is set at twenty
percent.

13
argument that the old rule applies, merely noting that the

amendment occurred after the initial award. See L & A Contracting

v. Southern Concrete Services, 17 F.3d 106, 113 (5th Cir.1994)

(ruling an argument abandoned because insufficiently briefed). We

will therefore apply the new rule to this case, mindful of our

reluctance, in any event, to interpret the broad language of the

old rule in such a way as to counter the clear purpose of the

revision: to reign in large awards of attorneys' fees. See City

of Fairbanks v. Amoco Chemical Company, 836 F.Supp. 690, 692

(D.Alaska 1993) (finding the nonbinding amendments "instructive").

Under the new rule, the appropriate award of attorneys' fees

is twenty percent of the total fees, or $132,890.86. ALASKA R.CIV.P.

82(b)(2). The district court made an upward deviation, awarding

eighty percent of the fees, or $531,563.43.12 ALASKA R.CIV.P.

82(b)(3). The district court thus awarded four times the scheduled

amount, a difference of $398,672.57. Variation on the set award is

contemplated by the rule and will not be disturbed absent an abuse

of discretion, that is, unless the court's decision was "manifestly

unreasonable." Atlantic Richfield, 723 P.2d at 1252.

At least where the actual fees exceeded $10,000, we can find

no Alaska cases permitting an award of the percentage magnitude

allowed here. Before the amendment of Rule 82, awards in high-fee

cases were typically between thirty and fifty percent. See City of

12
The actual award was $624,631.91, but that figure included
$116,335.60 in appellate fees. Because we find error in the
inclusion of appellate fees, we have subtracted that amount from
the aggregate and, from that adjusted figure, taken eighty
percent.

14
Fairbanks, 836 F.Supp. at 692 (surveying cases). Indeed, it was an

award of $76,000, fifty percent of the total fees, that occasioned

the Alaska Supreme Court's decision to consider amending Rule 82.

See Bozarth v. Atlantic Richfield Oil Co., 833 P.2d 2, 4 & n. 3

(Alaska 1992) (finding the award "high" and "disturbing" but

nevertheless within the discretion of the trial court).

In justifying its award, the district court relied on the

Alaska Supreme Court's decision in Stahlman v. State, 856 P.2d 1162

(Alaska 1993). Although it is true that the court in that case

allowed an award of 80% of fees, the actual quantum was only

$6,658.40. In former Rule 82 cases, the supreme court has been

much more willing to tolerate a high percentage when, unlike here,

the award itself is very low. See Weidner v. Dept. of Transp. &

Public Facilities, 860 P.2d 1205, 1212-13 (Alaska 1993) (allowing

an award of 65% of $16,720.97); Hausam v. Wodrich, 574 P.2d 805,

811 (Alaska 1978) (allowing an award of 86% of $11,257). More

importantly, in upholding an award of eighty percent, the court in

Stahlman noted that the trial court had found that the plaintiffs

had filed an "unfounded" petition. Id. at 1164 nn. 5 & 6. There

is no serious allegation of bad faith or vexatious conduct on the

part of the Defendants here. Only in such cases is the court

authorized to award full, or virtually full, fees. Thus, even if

we were to set aside the effect of the amendments to Rule 82,13 the

13
Stahlman cannot be said to interpret the new amendments to
Rule 82. The case was actually decided not under Rule 82, but
under Rule 41(a)(2), which allows a court to condition dismissal
on the payment of a monetary award. See Stahlman, 856 P.2d at
1164-65.

15
award in Stahlman cannot be used to justify an award of eighty

percent against individual defendants litigating in good faith.

See also Crook v. Mortenson-Neal, 727 P.2d 297, 306 (Alaska 1986)

(allowing an eighty percent recovery ($15,337.60) where the conduct

of the losing party "bordered on bad faith").

Besides its reliance on Stahlman, the district court gave

several rule-based reasons for increasing the award of fees 400%

over the scheduled amount. The district court focused on several

factors found in the Rule 82 laundry list, namely, the complexity

of the litigation and the reasonableness of Exxon's fees (and

Exxon's attempts to minimize them) relative to the amounts at stake

in the litigation.14 These factors do not support an award so far

removed from the twenty-percent norm of Rule 82(b)(2), particularly

given the high absolute amount of the fee award. We conclude that

the fee award constituted an abuse of discretion.

Although, as of the time of this writing, there are no cases

applying the revised version of Rule 82, two pre-amendment cases

inform our conclusion. Because both involved high but reasonable

fees and complex but good-faith litigation, they are the most

analogous to this case. In Van Huff v. Sohio Alaska Petroleum

Company, 835 P.2d 1181 (Alaska 1992), the trial court had awarded

14
Defendants contend the district court erred in not
considering all the factors listed in Rule 82(b)(3). This
argument is meritless. Nothing in the rule commands strict
application of all the factors; the very purpose of 82(b)(3) is
to provide a means of flexibly and equitably assessing the
reasonableness of a fee award. We therefore cannot say the
district court erred in addressing only some, and not all, of the
factors listed.

16
the party who prevailed at trial $117,251.50 in attorneys' fees,

which represented thirty percent of the total. The supreme court

affirmed the award. Likewise, in City of Fairbanks v. Amoco

Chemical Company, 836 F.Supp. 690 (D.Alaska 1993), the Alaska

district court awarded thirty percent of the defendants' attorneys'

fees, which exceeded $2.5 million. The district court based its

award on the complexity of the litigation and the reasonableness of

the fees, both absolutely and relative to the sixty-five million

dollars at stake. Moreover, the court took notice of the

then-proposed amendments to Rule 82, which set the award for

non-money judgments after a trial at thirty percent—the award

actually given in that case. Both of these cases thus fit

precisely within the norm of revised Rule 82, a norm ten percent

higher than that here.

Although these two pre-amendment awards conformed to the

standard of revised Rule 82, we do not conclude that the district

court abused its discretion merely because the award exceeded the

twenty percent mark applicable here. We simply conclude that an

award four times that norm is well outside the scope of the

district court's discretion. We accordingly vacate the award.

Because no interests would be served by yet another remand and

still more litigation over this issue, we prefer to end the

controversy here. We therefore award Exxon $200,000, an amount

barely in excess of 30% of its prejudgment fees.15 We believe this

15
Thirty percent of the pre-judgment fees would be
$199,336.29.

17
figure represents a partial compensation more in line with the

purposes of Rule 82 and with those pre-amendment cases most

analogous to this one.16

Conclusion

We vacate the district court's award of attorneys' fees and

remand for the limited purpose of entering an award for Exxon in

the amount of $200,000, together with interest thereon at the

judgment rate from July 27, 1992, the date of the original award of

fees.

VACATED and REMANDED.

16
As a final argument, Defendants contend that the award of
attorneys' fees in this case unduly hinders their constitutional
right to access the courts. No majority of the Alaskan Supreme
Court has ever endorsed this principle beyond a mere abstraction.
In any event, several factors counsel against full consideration
of this argument. First, our reduction in the award ameliorates
the problem. Second, Defendants have failed to establish
impecunity. And third, Defendants have abandoned the argument by
failing to brief the issue adequately. L & A Contracting v.
Southern Concrete Services, 17 F.3d 106, 113 (5th Cir.1994).

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