California Contingency Fee-Priceline Update

There’s been a very interesting development in Priceline.com v City of Anaheim, where the California Court of Appeal approved the City of Anaheim’s use of contingent fee counsel to pursue online travel companies for the City’s transient occupancy tax.

None of the parties to Priceline petitioned the Supreme Court for review. So, on March 4, our firm, Horvitz & Levy LLP, filed a request that the Supreme Court “depublish” the Priceline decision, thereby making it unavailable as a citable precedent. (The request has been docketed by the Supreme Court under case number S180695.) In our request, we noted that, because no petition for review had been filed, “[t]he only way to prevent the erroneous holding in Priceline from remaining as citable authority is for this court to depublish the case or grant review on its own motion.” The latter suggestion was a long shot. The California Supreme Court almost never grants review on its own motion. And in this case, because the time to do so is just about to expire, the Court would have had to enter an order right away either granting review or extending the time to do so.

But that’s exactly what the Court did. In response to our depublication request, the Court entered the following order:

03/04/2010 Order filed The time for granting review on the court's own motion is hereby extended to and including May 5, 2010. (Cal. Rules of Court, rule 8.512 (c).)

Although we cannot know for sure what the Supreme Court will do, there are two likely scenarios. It could be the Court is just keeping its options open and will limit its action in Priceline to deciding whether or not to depublish the Priceline opinion as a citable precedent. Or, the Court may be planning to grant review of the case on its own motion in response to our depublication request. If that happens, Priceline will be depublished automatically, as is true of all published Court of Appeal decisions accepted for review (unless the Supreme Court expressly orders otherwise, which almost never happens). The chances are that, because the issues in Priceline are so close to the contingent fee issues pending before the Court in County of Santa Clara v Superior Court (S163681) the Supreme Court, if it decides to take Priceline, may well "grant and hold" it for the decision in Santa Clara, deferring further action in Priceline pending the decision in Santa Clara.