Wednesday, February 29, 2012

Handling Claims Professionally Is Handling Claims In Good Faith—Unprofessional Claims Conduct May Land You With Bad Faith Litigation

By John Armstrong

Claims adjusters today are more competent and better trained than ever. I have had the privilege of lecturing and meeting claims adjusters throughout the U.S., Canada, and Great Britain. Contrary to the opinions of the plaintiff bar, most of them are caring, hard working individuals who want to be fair and do the right thing. So why do we hear so much about insurance “bad faith”? Well…. the professionalism is a mixed bag. Those who have more knowledge, skill, and training, are expected to act like of person of more knowledge, skill, and training. This is especially true if you have “alphabet soup” letters following your name or title regarding all the insurance certifications you’ve obtained.

Let me give you an example to show what I’m talking about. Let’s say you get in a claim. You (especially having read one of my earlier posts) see what coverages the insured has. You determine that the claim is probably not covered under the liability policy but probably is covered under a property policy the insured bought at the same time from your company.

You could deny the claim, but that’s a bad idea for reasons I’ll discuss shortly. Or, you could let the insured know your company is still “reviewing” coverage, and send the claim the company’s property adjuster for review, indicating that you’re inclined to deny under the general liability policy. Why? Because from the insured’s, the court’s, the jury’s, and the rest of the world’s point of you, the tender is to the entire insurance company. This is especially true for insurers insuring insureds in California (say that 3 times fast), since the legal standard is that the insurer is to engage in searching inquiry to find coverage. Put simply, you represent your entire company, not just the kinds of policies the company assigned you to adjust. But don’t panic. You don’t need to be an expert in lines your not certified in. You just need to communicate to the insured that the company is still reviewing coverage until the appropriate lines of coverage that might be affected have all had a chance to review and assess the claim.

Why not deny? Well, besides getting hit with a suit for bad faith—which is going to be difficult to defend if the company did insure the claim but just not under the policy you were examining, the insured may be able to recover pre-tender costs and fees that otherwise would not be recoverable.

California cases hold that an insurer who wrongfully denies a claim that the insurer covered buys the entire loss—even if the insurer decides to later cover the claim. Why? Because the California courts adopt the reasoning that if the insured had tendered immediately, the claim would have been denied then anyway. Thus, you not only avoid a bad faith claim, you also minimize the company’s risk by not outright denying the claim.

And, think about it from the insured’s perspective. If you “find” coverage for the insured, insureds don’t care which policy covers the claim with your company only that the claim is covered. They have a great experience and say good things about your company to others, and business grows. If, for whatever reason, the company were sued for bad faith, don’t you think the judge and jury would be impressed at your zeal to help the insured get coverage? Being professional pays good faith dividends.

Tuesday, February 28, 2012

Changes to Federal Diversity Law for Liability Insurance Companies Raises Federal Jurisdictional Problems for the Insurance Bar

By John Armstrong

Congress made significant changes to the laws allowing the removal of actions filed in local state courts to be removed to federal court. Two kinds of cases have historically been allowed to proceed in federal court—even if filed and served in state courts, namely, “subject matter jurisdiction” where a federal law or policy is the gravamen of the claim and “diversity jurisdiction” where the dispute involves more than $75,000 and all of the plaintiffs and all of the defendants are residents of different states.

Congress changed what are known as the “removal statutes,” namely Title 28 U.S.C. § 1332 and § 1441. Section 1332 makes every corporate insurer, as a matter of law, a “citizen” of the state in which the insured resides, as well as the state of the insurer’s corporate incorporation, and where the insurer’s principal place of business. This is important because insurers can no longer bring declaratory relief actions against their insurers in federal court, and because insurers can no longer remove insurance bad faith actions to federal courts

Some states, like Louisiana,  allow a tort victim to sue the defendant’s liability insurer directly. In response to a large number of federal suits filed in the federal courts in Louisiana, Congress expanded the definition of “citizenship” for insurance companies. Liability Insurance companies are now a resident of the state in which they are incorporated, where their principal place of business [the corporation’s “nerve center” where its chief executive operations take place], and are deemed a resident of the same state that their insureds reside in if:

1) There is a “direct action” against a liability insurer; and

2) The insured is not joined as a party-defendant.

See the problem? “Direct action” is not defined. If the insured sues the insurance company directly for declaratory relief or for insurance bad faith, does this mean that the insurer can no longer remove to federal court? If the insurer cross-complains against the insured, is the insured now “joined” as a party-defendant? If an insurer sues in federal court first, can the insured move to dismiss for lack of diversity? The answer? Only time will tell. The answer will depend on how each court faced with these issues decides it.

A purely literal interpretation seems to preclude an insurer from removing the insured’s declaratory relief or insurance bad faith action since the insured is not a “party-defendant” at the time of the attempted removal, and the action would be a direct against an insurance company. Though the Congressional history shows that Congress intended to limit victims from suing insurers in federal court, the plain language in the Act does not contain such a limitation.

Oddly, if the insurer sues the insured first, the insured may not be able to dismiss for lack of diversity jurisdiction, since a literal interpretation of the Act only makes a liability insurer a citizen of the same state as its insured when the insured is “not joined as a party-defendant.”

If the changes to the Act are read in view of the Congressional history, a court should interpret the Act as defeating diversity jurisdiction only in actions where state law allows a victim to sue the wrongdoer’s insurer directly, which interpretation is consistent with the text’s reference to applying where insureds are not joined as party-defendants.

It’s worth noting that changes don’t apply to property insurers, i.e., “non-liability” insurers. Or do they? What if a property policy provides a defense or indemnity for a certain kind of liability claim? Would the court look to the type of policy issued or to the insuring provision? Again, only time will tell. Now, the insurance bar is free to argue either way until we get some judicial interpretation of these new changes.

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Monday, February 27, 2012

Dealing With Difficult People-Kill Them With Kindness Is The Best Policy—No Matter How Much It Hurts You

By John Armstrong
Being in business means dealing with people. Being involved in insurance claims means dealing with difficult people. Normal, good, decent people tend to be difficult or impossible when under stress. You and your company may be wrongly accused of all kinds of things. You may be threatened with lawsuits or worse. What to do? Turn the other cheek! Don’t given into the temptation to write about how you really feel to the claimant, in your claimants, or to anyone. If you really feel the need to do, write what you want to say on waste paper, and then shred your personal thoughts. While valid, they have no place in the insured’s claim file. 
Why? Well... I began my career defending insurance bad faith property cases arising out of the 1994 Northridge Earthquake. The most difficult cases to defend where ones in which the claims adjuster wrote “less than nice things” about the insured.The lawyers armed with the claims correspondence all obtained recoveries and better ones, than where there wasn’t this added “bad fact” in defending the claim. (Of course only this information was only produced after valiant efforts were made to protect the claims file.) The sad part was that if you carefully reviewed the entire file, you understood where the adjuster was coming from. But all that anyone on a jury would be focused on would be the “bad”  comments by the adjuster.
From a juror’s perspective, the claims adjuster, as the insurer’s agent, has all the cards in his or her favor. The claimant has suffered a loss, and may be out thousands of dollars or more and may even have sustained permanent bodily injury from the event giving rise to the claim. In contrast, the claims adjuster’s stress “only” has to deal with fairly adjusting the loss. No doubt the adjuster must deal with the verbal and written threats by the insured and insured’s attorney. No doubt it its unpleasant. But adjusters are held to a higher level. They are expected to be professional at all time because, after all, claims is their profession. 
To illustrate what I’m writing about, I once had to defend a claimant who was also an attorney. I had to copy all of correspondence to the handling and senior claims adjuster and coverage counsel since there was such a high chance of the insured suing for bad faith. But not matter how nasty the multiple tomes of single-spaced emails I received every day, I always responded with kindness and professionalism. The result? We got the claim resolved, and when it was all over, the insured sent me a very nice and unexpected thank you. That is a much happier result than trying to defend your words once your company is sued for bad faith. The moral? Kill ‘em with kindness. It’ll save you and your employer countless headaches and plenty of $$$ in the long run.

Sunday, February 26, 2012

Good Faith Claims Handling–Not As Hard You Think

By John Armstrong
“Good faith” is terrible as a legal standard because it is inherently subjective. It means different things to lawyers, judges, regulators, legislators, and claims professionals, except in the more extreme circumstances.
The most workable definition I’ve seen is in California’s official jury instructions, which define it as “unreasonable insurer conduct.” This of course doesn’t tell us what qualifies as “unreasonable,” but what is reasonable is dependent on the circumstances, that is, what information was both known and available at the time the claim was denied.
Where mistakes get made and where litigation often occurs is when an incomplete analysis of the claim was made when the claim was denied.
Business today literally moves at light speed. We are all expected to do more in less time. Time management tells us to delegate tasks that can be delegated to promote efficiency. The problem with delegation however is your results are only as good as the information you’ve passed on.
For example, a new claim comes in, and you’ve delegated the task of whether there is coverage to coverage counsel as you suspect the claim isn’t covered under the company’s standard policy. You send the claim to coverage counsel along with a copy of the standard policy issued the insured. Coverage ghost writes a letter for you denying coverage just as you thought. Routine, right? “Good faith,” right? WRONG! Why?
Well, the insured did have the standard policy but also bought extended coverages, including coverage for the specific claim at issue. “Bad faith”? 9 times out of 10, yes. Why? Because the underwriting file was available and would have showed coverage existed. It’s unreasonable not to look at what coverages the insured bought before denying a claim. The advice of counsel defense won’t work because coverage counsel was not given a complete copy of the policy. To a jury, it will like this was intentionally withheld. And, if your compensation is tied in any way to the number of claims denied, your company may even be exposed to punitive damages by providing an economic incentive to deny claims. It won’t matter that you made a simple, common mistake because deny coverage for the very risk the insured purchased is the heart of insurance bad faith.
The point? No matter how busy, no matter how overloaded, you must make sure you have a COMPLETE copy of the policy before denying the claim, and it’s always a good idea to run the claim and all applicable policies by coverage counsel to make sure you have the added protection on the good faith reliance on coverage counsel. Getting a second opinion will itself often be considered as evidence of your good faith conduct in denying a claim that is not covered.

Alternative Fee Agreements-As Good Or As Bad As You Make Them

By John Armstrong
We are in an ever changing business environment. The practice of law and the handling of claims today moves literally light years faster than before with the use of email, mobile phones, ipads, and netbooks. We’re plugged in everywhere we go, and can virtually be at the office while vacationing in Hawaii.
The Billable Hour
The billable hour is still the main style of fee agreement, largely because both claims adjustors and law firms understand this basic formula: The law firm charges an agreed upon hourly rate for partners, associates, and paralegals, the time is billed in one-tenth of an hour increments (the “0.1” or every six minutes), each timekeeper must record what activity was done, and frequently is also required to “code” the work with both a task an activity.
But there are alternatives to the “billable hour” described above. It can be mutually beneficial or a train wreck. The difference? How much is discussed up front so that each side, insurer and law firm, understand what’s expected. This post discusses the main alternative fee arrangements this writer has seen and been a part of, and I will discuss the pros and cons of each.
The “Flat Fee”
In complex cases, such as construction defect cases, usually the insurer insuring a large number of subcontractors will request a “flat fee” per file. That is, the insurer will send a large number of files but will only be charged a single attorney’s fee for each file (the insurer ordinarily covers hard costs, like court reporter fees and filing fees too). This arrangement can work well but two problems usually arise. First, the insurer may not send enough files to warrant the volume discount. This can be hard to do unless the claims adjuster consistently has a steady flow of a known number of files. Too few files, and the idea of volume pricing is out the window. Second, there has to be a mechanism to get a file out of the “flat fee” arrangement if a flat fee suddenly requires more work, such as a large number of depositions or extensive law and motion. Often, this happens when a flat fee subcontractor file becomes the target defendant whose work primarily caused the plaintiff’s damages. At that point, both the plaintiffs’ counsel and the general contractor’s counsel team up on the culpable subcontractor who is now facing a two-front war—not really a good candidate for flat fee work. On the other hand, if you represent the electric door knob polisher, odds are the insurer and law firm are safe in keeping this subcontractor in the flat fee arrangement.
Another variety of the “flat” fee is where a the law firm get a flat fee per month during the life of the file. This may make financial sense where the insurer and defense counsel believe that there is going to be a lot of litigation and where it is unlikely that the case will settle until closer to trial. This requires some sophistication on both the law firm’s and on the adjuster’s part in that the flat fee per month should be enough to cap what would be expected overages in certain months while generating enough income for the firm that the file gets appropriately staffed. The law firm benefits by being able to plan that it will get X amount of fees each month, and the adjuster knows that the fees will never exceed X per month.
The Contingency Case
This usually occurs in the subrogation cases. However, if you have a file where the insured has attorney’s fees clause in its favor, and it appears objectively likely to both the insurer and defense counsel that the insured is likely to prevail and there is another insurer or a solvent plaintiff who could pay attorney’s fees, then such a defense file may be ripe for a contingency or “blended” fee, that is a guaranteed lower hourly rate plus the right to recover fees if the defense counsel are successful. These type arrangements work only when there is a candid, upfront discussion regarding how fees will be split, what costs the insurer will pay on monthly basis, and which will come out of the recovery, if any. And, of course, different percentages can be negotiated, such as a lower percentage if counsel obtains a recovery without having to file suit, and a greater percentage if counsel has to file suit, and a higher percentage if the case has to be taken to trial or settles at trial. Where things go wrong is when there is no clarity on who is paying for costs, what percentage recovery occurs at which point time, etc.
The Blend
Alternative fee agreements have few limits. You can be as creative as you want. It is possible to blend the billable hour, with a modified flat feet, with a contingency component. If your bold enough to move from the billable hour, its best to thoroughly discuss the litigation and trial plan in advance. I would also recommend requesting a billable hour defense budget, because this will provide information on what type of alternative fee agreement might be best for the case. In sum, alternative fee agreements can work, but they do require more work and thinking at the front-end so that insurer and counsel knows what’s expected from each other.

An Ounce of Prevention—Sometimes the Best Claims Handling Is Resolving Problems Before They Rise to the Level of Claim

By John Armstrong

Whether you’re an insurance adjuster or a self-insured business, or have a high insurance deductible, your likely to have a claim involving your business. This blog covers a sub-category. Namely, the “pre-claim” claim. It’s hard to define a “pre-claim.” Some malpractice policies describe it as the point when the professional has notice of a situation where a claim is likely to develop in the future. Real life examples I’ve seen are claims against a publicly traded corporation regarding financial errors/mismanagement that should have been caught by the publicly traded firm’s accountants. The SEC or class action may be against the corporation’s Board of Directors at first, but it may be just a matter of time before others are sued. Another situation is where a business is subpoenaed to provide information in a lawsuit regarding work or services the business provided one of the parties in the dispute.
In both of these situations, there generally is no insurance coverage because, thus far, there is no “claim” as that term is ordinary defined in standard liability insurance policies. But here’s the dilemma; do nothing, and by the time a real “claim” is made against the insured business, there may be little hope of fighting liability or damages—especially if depositions have been taken. Some insurers will agree to treat such situations as a “modified” claim where the insured pays a modest deductible because a defense for the deposition and subpoena and others will just agree to hire pay hire the insured’s attorney at panel counsel rates to protect the insured. Certainly, in the above scenarios the insurer is not legally obligated to start funding a defense. However, the big picture is too avoid being penny wise and dollar foolish; that is, the few thousand dollars spent today may prevent a “claim” from ever being made against the insured, and if there is one, the valuable of the claim is likely to be much less.
Another thing businesses and insurers can benefit from is having the insurance company offer seminars to insured businesses on good risk prevention practices. Some insurers may even offer discounts on premiums to insureds who participate in such programs. Many insureds are unaware that these programs exist. For insurers offering Employment Practices Liability (a.k.a. “EPL” policies), such programs are invaluable to claim prevention.
Even if an insurance company doesn’t offer a risk prevention program, often the law firms they use will, or even a business existing lawyers. Law firms will generally treat this kind of a seminar is marketing event instead of billable event. Of course, it always a good idea to let the law firm know as much information about the business so that a well tailored risk prevention seminar can be given.
In sum, early claim detection and prevention saves insurers and business thousands if not ten thousands of dollars. If you’re a business and you think that a claim might be pursued against your business, that’s a great time to start a dialogue with your insurer and with your attorneys. Even before then, taking advantage of educational opportunities will let you know what to do and how to do it to prevent potential claims, or to at least mitigate the costs when a claim is made.

Thursday, February 23, 2012

Pleading Properly--Saving $$$ By Careful Pleading

An ounce of prevention is worth a pound of cure. Lawyers could save claims adjusters thousands of dollars by taking to carefully plead their pleadings, especially by pleading Complaints, Cross-Complaints, and Answers more carefully. I am not advocating needlessly billing time for the "routine" pleadings the start a lawsuit. I am suggesting that taking the time to carefully and fully plead a cause of action or an affirmative defense in initial pleadings may avoid pleading attacks that needless "churn" the file, and that clearer pleadings will more quickly and effectively move cases closer to settlement or other resolution. Here I discuss some basic pleading rules and standards as a cautionary tale to both plaintiff and defense attorneys who practice in California state and federal courts.

As a matter of practice, a Complaint or Cross-Complaint should tell a compelling story. If you tell a tale that is compelling, a judge is less likely to accept pleading attacks on your pleading, and is more likely to give you leave to amend. Telling a compelling story isn't hard. The facts may be boring but there has to be some kind of injustice done the client otherwise there would be no legal basis for the suit--even if you are seeking indemnity, the justice of the case is that is unfair for your client to bear the costs and expenses of a loss caused entirely or primarily by someone else. Talk to the client/insured, they have a lot of information you will never get by reading a cold file. 

Use a plain, easy to understand writing style. Imagine your writing to a high school senior, not another lawyer. It's always better if the insured, insurer, opposing counsel, and the busy judge can quickly understand what your trying to tell them without any of them repairing to their libraries or Googling words to understand what you wrote. Write in complicated legalese and courts are more likely to sustain a demurrer for uncertainty or to grant a 12(b)(6) motion in federal court. Pleadings should avoid useless legal words like heretofore, hereunder, aforesaid, etc., and write in the active voice: "John kicked the ball": NOT, "The ball was kicked" or "kicked was the ball." Rather than the droll, "Plaintiff incorporates by reference paragraphs one through twenty-five aforesaid as though fully set out in this paragraph," write: "Plaintiff adopts paragraphs 1-25 here." The two sentences mean exactly the same thing. Really.

In drafting pleadings, there are technical requirements that have to be met. Nearly all the technical pleading requirements are found in Code of Civil Procedure, §§ 420-475 in state practice and in Federal Rules of Civil Procedure, rules 7-15 for federal practice. Also check the California Rules of Court and the local federal district court rules for formatting an other technical requirements. These rules constantly change so it's always a good time to go over the technical requirements to make sure little things don't get over looked and turn into big problems. For example, failing to plead the factual bases for jurisdiction or venue invite venue and jurisdictional challenges that otherwise could not be made if the pleader had included these allegations in the pleading.

Once your pleading tells a compelling story, meets the technical pleading requirements, the next important thing to keep in mind is to "show, don't tell." In ruling on demurrers, motions to strike, and federal 12(b)(6) motions, courts must accept the factual allegations as true. (There is an exception, however, for special, Anti-SLAPP Motions to Strike, which I discuss in my blog posting on this subject.) 

What I mean is that courts do not admit or accept conclusions of fact or law in pleadings, whether you are in California or federal court. (See Aubry v. Tri–City Hosp. Dist. (1992) 2 Cal.4th 962, 966–967; Ashcroft v. Iqbal (2009) 556 U.S. 662, __, 129 S. Ct. 1937, 
1949. Pleading that, "defendant Jones' conduct was despicable so as to warrant the imposition of punitive damages" tells the reader nothing other than the writer's irrelevant opinion about Jones' conduct. Pleading that, "defendant Jones' was licensed securities dealer with a no record of discipline. Jones defrauded plaintiff Smith by representing that the investment had no "no risk" and by "guaranteeing" a 30% return on investment. In reality, no such investment existed, and Jones pocketed and the spent plaintiff's life savings, leaving plaintiff with no retirement." A court is more likely to find these detailed factual allegations "despicable" or "fraudulent" so as to warrant punitive damages under Civil Code, § 3294 at the pleadings stage.  That's not to say you can never plead conclusions. You can. But only after you've pled facts that would plausibly support the conclusion your making. And while courts generally must take facts pled as true, no matter how implausible, the more factual details provided will make the claim less implausible and therefore less likely to be attacked.

These rules and suggestions do not just apply to Complaints and Cross-Complaints. They apply to Answers too. (FPI Development, Inc. v. Nakashima (1991) 231 CA3d 367, 384 [holding affirmative defenses must plead facts sufficient to state a defense to avoid demurrer];  Wyshak v. City Nat'l Bank (9th Cir. (Cal.) 1979) 607 F.2d 824, 827 [affirmative defense must plead facts to give "fair notice" of the defense]; see Barnes v. AT & T Pension Benefit Plan–Nonbargained Program (N.D. Cal., 2010) 718 F.Supp.2d 1167, 1172 [applying Iqbal to affirmative defenses].) Yes Virginia, you can demurrer to or make a 12(b)(6) motion against affirmative defenses, and there are strategic reasons for doing so. Limiting defenses eliminates needless discovery. So it is better to meet the client/insured and discuss meritorious defenses than to immediately file an Answer alleging legal conclusions devoid of facts (unless your trying to avoid a default). If time pressures force you to file an Answer to avoid a default, consider filing an amended Answer with factual allegations supporting the defenses. It makes for a stronger defense, and possibly an earlier and better settlement once the "real" issues in a case are fully vetted.

Wednesday, February 22, 2012

SLAPP--An Acronym With Feeling

California enacted a law to protect speech, namely, Code of Civil Procedure, § 425.16. The California Legislature created a "special" Motion to Strike, that is very much unlike California's long-existing Motion to Strike found in Code of Civil Procedure, § 435 et seq.  

Traditionally, a Motion to Strike attacks only a portion of a Complaint, and admits all well pleaded factual allegations. It cannot be supported with evidence outside the pleadings, and if it is, courts are supposed to treat it like a summary judgment/summary adjudication motion, which almost never works because Code of Civil Procedure, § 437c's 75-day notice provision would have to be complied with versus the routine "16 court day" notice required for pleading motions.

The special Motion to Strike, known as the Anti-SLAPP (Strategic Lawsuit Against Public Participation), however, is (or should be) supported by evidence, such as written discovery, declarations, depositions, etc. It is an evidentiary motion. 

And filing one has some chilling effects for unprepared plaintiffs. Filing the motion freeezes all discovery in the case. The plaintiff cannot rely on the allegations in the Complaint, even if well pled. The plaintiff has to produce admissible evidence that creates triable issues of fact if the Complaint "arises from" free speech or other protected activity, such the right to petition, i.e., court litigation, administrative litigation involving public agencies, etc.

Courts thus analyze two "prongs" of the Anti-SLAPP Act. First, does the cause of action "arise from" speech or protected activity? That might seem easy, but if a cause of action is "mixed," then the court has determined if the "gist" (translation: 50%+) of the cause of action arises from protected activity, the first prong is met. If the gist of the cause of action does not arise from protected speech or protected activity, the motion is denied. 

Two things are worth noting here. One, if the entire cause of action cannot be disposed of under either the first or second prong, the motion must be denied, unlike the ordinary Motion to Strike, which can attack part of a cause of action. And, only if the Anti-SLAPP Motion to Strike is objectively frivolous, the prevailing plaintiff cannot recover fees; whereas a prevailing defendant must be awarded reasonable fees related to the Anti-SLAPP Motion.

Assuming the first prong is met, the second question the court must answer is whether plaintiff has presented sufficient admissible evidence to create triable issues of fact on the SLAPP claim. If the moving defendant offers no evidence, plaintiff's burden is much easier. If there is evidence, however, or if there are applicable statutory privileges, such as California's Litigation Privilege found in Civil Code, § 47(b), the plaintiff is in trouble. Absent admissible evidence sufficient to create triable issues of fact or absent law showing an exception to a statutory bar like the Litigation Privilege, the defendant wins the Anti-SLAPP Motion, and is awarded fees for defending against the SLAPP claim. Sometimes, a well-drafted Anti-SLAPP Motion to Strike will knock out an entire Complaint, resulting in an immediate judgment.

For the defense bar, the Anti-SLAPP Motion to Strike is something to think about when responding to an initial Complaint. If not brought within the first 60 days of being served, courts have discretion to deny the motion, since these motions are supposed to be brought early. There is an immediate right to recover fees, and the motion for fees may (and usually should) follow the Anti-SLAPP Motion to Strike itself as after the motion is granted, it is easier to know the amount of fees and costs incurred in bringing the motion. Also, the California Supreme Court has interpreted the Anti-SLAPP Act as authorizing the recovery of fees for having to bring a subsequent motion to recover attorney's fees, that is, "fees on fees" are permissible under the Act.

The above is an overview of an ever-changing and evolving area of law in California, though several other states have enacted Anti-SLAPP laws similar to California. It is generally a good idea to get counsel who are experienced in this area of law, given the potential risks of fee exposure, etc.