Case Update (2020): Nissim v. Kirsh; Hague Abduction Convention, ICARA, fee-shifting, legal fees

On June 29, 2020, the U.S. District Court for the Southern District of New York issued an order for Ms. Orna Kirsh to pay fees and costs to Mr. Dror Nissim after Mr. Nissim prevailed in a Hague Abduction Convention return proceeding.  The US implementing legislation for the Hague Abduction Convention (ICARA) includes a fee-shifting provision that orders the respondent (Kirsh) to pay necessary expenses incurred on behalf of the petitioner (Nissim) during the course of the Hague Abduction Convention proceedings unless it would be clearly inappropriate.  

The court reviewed 6 factors in determining whether a fee award would be “clearly inappropriate," and concluded it would not be.

The court considered the following factors:

1. whether there was a reasonable basis for removing the children to the USA
2. whether either party engaged in forum shopping
3. the degree to which the petitioner bears responsibility for the circumstances giving rise to the fees and costs
4. the respondent’s inability to pay a fee award
5. whether the fee award will deter the conduct from happening in the first place; and
6. whether the case is “not a difficult one” and “falls squarely within the heartland of the Hague Convention"

Finding that a fee award would not be clearly inappropriate, the Court then used the lodestar method to calculate the necessary expenses that Mr. Nissim expended. Mr. Nissim was asking for a sum total of $143,150.34, which included attorney fees, costs, travel costs, and certain costs related to an action in Israel. The court reviewed the attorneys’ familiarity with the case and, more generally, Hague Convention cases, their hourly rates, and the number of hours they billed.  The court reduced the lead attorney’s hourly rate from $500 to $425 but otherwise did not touch anyone else’s rates.  Furthermore, it found the number of hours the firm billed to be reasonable. As for the costs, the court found all were necessary and reasonable, except for the fees associated with a lawyer in Israel and an expert in Israel, both who submitted their invoices in Hebrew, did not include descriptive narratives of their work, and were advising Mr. Nissim in an Israeli action.  The court reduced the fees and costs to a total of $108,718.94.  

Finally, the court looked at whether Ms. Kirsh was unable to pay.  Ms. Kirsh owned three properties individually or jointly, including one in the jurisdiction of the court, had a bank account of $150,000 in Israel, and had been gainfully employed while in Israel (with the expectation of being employable in the US).   The court found her able to pay.