I bring you two items of interest regarding recovery of attorneys’ fees.
One is this post by Brian Rogers, aka @theContractsGuy. The message? If for purposes of a contract governed by Missouri law you want to recover attorneys’ fees, it’s not enough to say “all costs”—you have to mention attorneys’ fees too, presumably by saying “all costs, including attorneys’ fees.” Another message? Life’s too short to check all caselaw on the subject, so use that formula in all contracts, whatever the governing law.
The other item is this article by Will Rosenthal and Amy Lally, associate and partner, respectively, at Sidley Austin. (The associate is listed before the partner in the by-line? Truly end times are upon us!) It discusses two 2013 California cases, only one of which is relevant for our purposes. The message? Referring to “any dispute” is enough to allow a party to recover attorneys’ fees incurred in both claims under the contract and tort claims. Another message? If you want to exclude recovery of attorneys’ fees for tort claims, you should make that explicit. Yet another message? If I want to provide for recovery for both contract claims and tort claims, I’d make that explicit, using arising out of in the manner described in this post. One reason: I want to make the arrangement clear to the parties. A second reason: I want my contract language to work in all jurisdictions, and I can’t assume that all jurisdictions have the same approach as California.
The bottom line, with respect to both items? It’s best to be explicit.
