Common Fund Exception

The general rule (i.e., the “American Rule”) is that a party to a lawsuit cannot recover attorney fees. This is true even if the party wins the lawsuit. A narrow exception to this rule is the common fund exception.

Under this common fund exception to the American Rule, a litigant may recover attorney fees where the litigant recovers “a common fund that benefited a trust with multiple beneficiaries.” Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace, LLC, 585 S.W.3d 269, 285 (Mo. 2019). If this exception applies, Courts have held that “the equitable way to apportion the expenses of counsel fees is to allow them against the fund.” Feinberg v. Adolph K. Feinberg Hotel Trust, 922 S.W.2d 21, 26 (Mo. Ct. App. 1996).

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