ASA Files Amicus Brief with Supreme Court Supporting Defendant Fee Recovery, Holding Government Experts to Recognized Standards and Best Practices

On July 11^th, ASA filed an amicus brief with the Supreme Court supporting petitioners Bowers & Kubota Consulting in their effort to recover attorneys’ fees and costs from the government under the Equal Access to Justice Act (EAJA).

The crux of the petitioner’s claim centers on the sole reliance of the Department of Labor on expert witness reports and testimony that were rejected by lower courts. The petitioners claim that since the expert’s report and testimony were the government’s sole basis, the government was not “substantially justified” in bringing the litigation and the costs and fees of Kubota & Bowers defense should have been awarded under EAJA. Both the district court and the ninth Circuit disagreed, applying a standard for EAJA recovery out of step with other federal circuits.

ASA’s interest in the case has two components:

• Where expert testimony is the only underpinning of the government position in support of litigation against private parties, that these experts adhere to generally accepted professional standards, principles and best practices – and that where they fall short of these expectations, that courts do not accept government expert testimony; and,
• If courts find government expert testimony and reports unreliable, that defendants are able to seek fee and cost recovery under a consistent application of EAJA.

ASA wishes to thank their counsel, Jacob D. Rhode, Michael L. Scheier, and Mollie A. Miller Redlinger of Keating Muething & Klekamp for their outstanding work on the brief, as well as volunteer members of ASA’s Business Valuation discipline, Jeff Tarbell, Matt Crow, Ken Pia, Patrice Radogna and Business Valuation Committee Chair, Ron Seigneur for contributing their time and expertise to the brief’s development. To read the entire amicus brief, click here.