VSC: Contractual right to attorneys' fees applies to this breach of covenant of good faith and fair dealing

Harsch Properties, Inc. v. Nicholas 2007 VT 70 [Filed 27-Jul-2007] http://dol.state.vt.us/gopher_root3/supct/current/2005-494.op

Where exclusive listing agreement provided, "If the Broker is forced by collection or litigation effort to enforce the terms and conditions of this agreement, then the prevailing party will be entitled to reimbursement for all costs of collection, including attorney's fees," Broker was entitled to fees where Broker prevailed on claim that homeowners violated covenant of good faith and fair dealing by negotiating directly with prospective buyers; covenant of good faith and fair dealing was an implied term of the agreement, thus meeting the "terms and conditions" provision re: recovery of costs and attorneys' fees.

VSC: professional opinions are generally not actionable under Vt consumer fraud statute

The Vt. Supreme Ct recently ruled that opinions based on professional judgment are generally outside the scope of Vermont's consumer fraud law. Although the case involved a real estate appraisal, the Court based its ruling on a federal court decision involving a legal opinion.

The case was Webb v. Leclair 2007 VT 65 [Filed 12-Jul-2007]

¶ 1. [Plaintiff] appeals a summary judgment for [defendant] on her claims of negligent misrepresentation, fraud, consumer fraud, and negligence arising from defendant's appraisal of a home she purchased. The appraisal was done on behalf of plaintiff's mortgage lender. Plaintiff argues that the superior court erred ... in dismissing her consumer fraud count. We hold ... that plaintiff's consumer fraud claim is in fact an assertion of malpractice that is outside the scope of our consumer fraud law. We therefore affirm.

In so holding, the Court approved the federal court's ruling in Kessler v. Loftus, 994 F. Supp. 240 (D. Vt. 1997) that a legal opinion is generally not actionable under Vermont's consumer fraud law. Here is what the Vermont Supreme Court wrote:

¶ 23. We now expressly adopt the Kessler court's interpretation, based on Winton, that although certain representations may give rise to a malpractice claim, they are generally not actionable under the Consumer Fraud Act if they are the product of the defendant's "professional judgment based upon his legal knowledge and skill." Kessler, 994 F. Supp. at 243 (quotations and ellipses omitted). A plaintiff cannot simply recast a malpractice claim as a consumer fraud claim. Moreover, for purposes of this rule, we see no meaningful distinction between lawyers and other professionals hired to give a "specialized or expert interpretation" of a matter, as defendant was here. Winton, 147 Vt. at 240, 515 A.2d at 374.

VSC update re vicarious liability -- "aided by the agency relationship"

See Doe v. The Newbury Bible Church <http://dol.state.vt.us/gopher_root3/supct/current/2006-186.op> , 2007 VT 72 [Filed 20-Jul-2007]

¶ 1. SKOGLUND, J. In this federal diversity action, plaintiff John Doe seeks to hold the Newbury Bible Church vicariously liable for criminal and tortious conduct committed by its pastor. We have accepted the following certified question from the United States Court of Appeals for the Second Circuit pursuant to Vermont Rule of Appellate Procedure 14:

Under Vermont law, as expressed in Doe v. Forrest, 2004 VT 37, [176 Vt. 476,] 853 A.2d 48, is a church subject to vicarious liability for the tortious acts of its pastor under the Restatement (Second) of Agency § 219(2)(d) if the pastor was allegedly 'aided in accomplishing the tort by the existence of the agency relation' with the church?

We answer the certified question in the negative.

2nd Cir: personal jurisdiction; Zippo

a website's interactivity may be useful for analyzing personal jurisdiction under section 302(a)(1), but only insofar as it helps to decide whether the defendant "transacts any business" in New York--that is, whether the defendant, through the website, "purposefully avail[ed] himself of the privilege of conducting activities within New York, thus invoking the benefits and protections of its laws."

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fn. 13 The spectrum [established by Zippo may also be helpful in analyzing whether jurisdiction is permissible under due process principles. We note that the court in Zippo and most, if not all, of the courts that subsequently adopted the Zippo sliding scale were evaluating whether jurisdiction in those cases comported with due process, under state long-arm statutes that recognized jurisdiction coterminous with the extent allowed by the federal Constitution. See, e.g., Young, 315 F.3d at 261. We make no comment at this point on the relevance of the Zippo sliding scale in New York in evaluating whether the exercise of jurisdiction would be consistent with due process.

Best Van Lines, Inc. v. Walker 2007 WL 1815511, *11 (2d Cir. 2007)

2nd Cir: Attempt to clarify calculation of attys' fees under fee shifting statutes

The meaning of the term "lodestar" has shifted over time, and its value as a metaphor has deteriorated to the point of unhelpfulness. This opinion abandons its use.FN4 We think the better course-and the one most consistent with attorney's fees jurisprudence-is for the district court, in exercising its considerable discretion, to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case. The district court should then use that reasonable hourly rate to calculate what can properly be termed the "presumptively reasonable fee."
FN4. While we do not purport to require future panels of this court to abandon the term-it is too well entrenched-this panel believes that it is a term whose time has come.
Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 2007 WL 2004106, *7 (2d Cir. 2007)