Rule 189-2-.11 - Rules of Procedure - Seeking an Award of Attorney's FeesThe Commission shall assess reasonable and necessary attorney's fees and expenses of litigation in any administrative action pending before the Commission, upon the motion of the Respondent or the Commission itself, if it finds that a Complainant or the Complainant's counsel filed a Complaint, or any related pleading thereto, that is frivolous, which shall include, but not be limited to, a complaint or pleading that lacks a Legal Basis, Legal Merit, or factual basis to support the claims made therein.
(1) Whenever a Respondent desires to seek an award of attorney's fees against a Complainant pursuant of O.C.G.A. § 21-5-6(b)(23) on the grounds that the latter filed a complaint that was frivolous, the Respondent and Complainant shall comply with, to the extent practicable, the following rules of procedure. (a) Respondent may include in their initial answer to the Complaint, inter alia, a request for attorney's fees pursuant to O.C.G.A. § 21-5-6(b)(23).(b) In the alternative, Respondent may also file, at any time before a final judgment in said case is rendered by the Commission, a separate motion requesting attorney's fees pursuant to O.C.G.A. § 21-5-6(b)(23). If the Respondent is filing a separate motion, said motion shall comply with subsection (d) of this rule as detailed below.(c) The Respondent's request (either by responsive pleading or separate motion) shall include, but not be limited to, the following:1. A clear and concise statement of the facts upon which the Respondent asserts to support their claim that the complaint lacks a Legal Basis, Legal Merit, or factual basis to support the claims made therein against them.2. A clear and concise statement of the legal argument upon which the Respondent asserts to support their claim that the complaint lacks a Legal Basis, Legal Merit, or factual basis to support the claims made therein against them.3. A clear and concise statement as to the amount of attorney's fees that are being requested. Said statement shall be accompanied by, but not limited to, a copy of the Respondent's outstanding attorney's fee invoice that has been received as of the date of the request. Moreover, the Respondent shall update their request, if applicable, by submitting a copy of their current attorney's fee invoice within 48 hours of the hearing on their request for attorney's fees.(d) If the Respondent files a separate motion requesting attorney's fees pursuant to O.C.G.A. § 21-5-6(b)(23), said motion shall be filed directly with the Commission and an exact copy of said motion shall also be served upon the Complainant (at the Complaint's last known address as contained in the Complaint filed with the Commission) by the Respondent. Service shall occur concurrently with the filing of said motion with the Commission. Service of the motion requesting attorney's fees shall be considered effectuated upon the Complainant by the transmittal of said motion via regular U.S. mail or via standard commercial carrier to include, but not limited to, UPS and FedEx.(e) If the Respondent files a written request for attorney's fees (either by motion, answer or responsive pleading), the Complainant shall be afforded an opportunity to file a written response to the Respondent's written request for attorney's fees, said response period shall be no less than fifteen (15) business days from the date of service of the Respondent's written request for attorney's fees with the Commission. The Complainant's written response shall be filed directly with the Commission and an exact copy of said response shall also be served upon the Respondent (at the Respondent's last known address as contained in the Respondent's answer, responsive pleading or motion requesting attorney's fees) by the Complainant, said service shall occur concurrently with the filing of said response with the Commission. Service of the written response shall be considered effectuated upon the Respondent by transmittal of said response via regular U.S. mail or via standard commercial carrier to include, but not limited to, UPS and FedEx. Any response in opposition to the Respondent's request for attorney's fees shall include, but not be limited to, the following:1. A clear and concise statement of the facts upon which the Complainant asserts to support their claim that the complaint does not lack a Legal Basis, Legal Merit, or factual basis to support the claims made therein against the Respondent.2. A clear and concise statement of the legal argument upon which the Respondent asserts to support their claim that the complaint does not lack a Legal Basis, Legal Merit, or factual basis to support the claims made therein against the Respondent.(f) Attorney's fees awarded pursuant to O.C.G.A. § 21-5-6(b)(23) and the applicable rules of the Commission shall not exceed the amounts which are reasonable and necessary for defending or asserting the rights of the Respondent. Further, no award for attorney's fees shall exceed the actual amount of attorney's fees that were expended by the Respondent in the case constituting the grounds for the request for attorney's fees.(g) No Complainant and no attorney representing same shall be assessed attorney's fees as to any claim which the Commission determines was asserted by said Complainant or attorney in a Good Faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority. Further, the Commission shall judge whether a complaint or subsequent pleading is frivolous based upon the information that was publicly available to the Complainant at the time the complaint or subsequent pleading was made, and not upon information that was subsequently discovered by the Commission's staff in their investigation.(h) An award of attorney's fees under these rules and pursuant to O.C.G.A. § 21-5-6(b)(23) shall be determined by an order of Commission and said order shall be reduced to writing by Commission staff at the conclusion of the Commission's hearing. Further, any such order awarding attorney's fees shall constitute a binding order of the Commission subject to further enforcement as provided by Georgia law.Ga. Comp. R. & Regs. R. 189-2-.11
O.C.G.A. §§ 21-5-6(7), 21-5-6(23).
Original Rule entitled "Rules of Procedure - Seeking an Award of Attorney's Fees" adopted. F. Jan. 13, 2020; eff. Feb. 2, 2020.