In a dispute about the law governing a claim for attorneys’ fees following litigation, the Fifth Circuit held, in MUTUAL CONCEPTS, INC. v. FIRST NAT’L BANK OF OMAHA, 495 Fed.Appx. 514 (5th Cir. 2012), that the contractually chosen law (Nebraska) governed the award of attorneys’ fees, even though the litigation was conducted in Texas. The court found that Nebraska provided no right of recovery of those fees. Texas regarded the award as a substantive right while Nebraska viewed it only as procedural. Per the court, in this case, the contractual choice of governing law controlled the substantive claims of the contract as deemed by the state in which litigation was brought. Because attorneys’ fees are a substantive right under Texas law, Nebraska law stipulated in the choice-of-law provision would govern recovery of those fees. But Nebraska law precluded such an award in breach of contract claims. (In addition, in this case, the losing party in the litigation also argued that the winning party was precluded from recovering for breach of contract because the winner revealed confidential information, thus, breaching the contract first. But the court dismissed that argument as being late-raised.)
