Gandee v. LDL Freedom Enterprises

In Gandee v. LDL Freedom Enterprises (2013) 176 Wn.2d 598, 604 293 P.3d 1197, the relevant fee-shifting provision was as follows: "'The prevailing party in any action or proceeding related to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney's fees which may be incurred.'" (Id. at p. 1199.) The plaintiff in Gandee argued that the "'loser pays' provision" was "one sided and harsh because if she prevails she is already entitled to costs and fees under the Consumer Protection Act but is forced to bear the risk of a negative outcome, despite the legislature's intent to encourage consumers to vindicate their rights" by not allowing prevailing defendants to obtain their costs and fees under the relevant statute. (Id. at pp. 1200-1201.) The Gandee court agreed, stating: "Because the 'loser pays' provision serves to benefit only the defendant and, contrary to the legislature's intent, effectively chills the plaintiff's ability to bring suit under the Consumer Protection Act, it is one sided and overly harsh. Therefore, we hold it to be substantively unconscionable." (Gandee, supra, 293 P.3d at p. 1201.)