Dear 11th Circuit: Enough with the Dicta!

This is a fascinating order from Magistrate Judge Torres, carefully attempting to understand exactly what the 11th Circuit ordered him to do on remand in a fee dispute involving several plaintiffs' firms.

The Judge candidly acknowledges the Court's "dilemma," that he has been "wrestling" with conflicting language and competing interpretations of the opinion, discusses the "perils of dicta," and refers to the judicial goal of finality as having been "quite elusive."

He concludes as follows:
To be fair, we should have Ordered the following relief sooner, but we were trying to first adjudicate the motion to compel and understand what the Court’s mandate required. Now that that issue has been tabled for now, as explained above, we will deny the motion for hearing without prejudice. A hearing will ultimately be scheduled, but only after KGR files a proper fee application that strictly follows the Court’s mandate. The Court rejected KGR’s argument for a direct contingent fee award, holding that it was entitled only to a quantum meruit award. The Court directed this Court to review that request with a fresh eye under all the Poletz factors identified in the Opinion. We cannot do so on this record because KGR must first submit that revised and updated application, which takes into account what the Eleventh Circuit held and what it required this Court to do on remand. Our review of the existing record reveals that we have nothing on paper to truly that guide our decision and comply with the mandate.
Question:  is it not reasonably clear that the 11th anticipates KGR's allocation to be higher than previously ordered, which would necessitate a reallocation from among the other law firms?

Or is there another way to skin that cat?


  1. Solution to lack of finality = more briefing

  2. As a 100% family friendly firm, I have personally issued a SA BAN on that word. We don't use it and never will.


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