District Judge Rejects Walmart’s Request for Attorney’s Fees in Publicity Act Case
By Legal Affairs Correspondent
Published August 15, 2025
Chicago, IL – On August 12, 2025, U.S. District Judge Edmond E. Chang rejected Walmart’s request for $36,251.50 in attorney’s fees in Giovannelli v. Walmart, Inc., a case brought under the Illinois Right of Publicity Act (IRPA). The decision, filed in the Northern District of Illinois, hinges on the court’s interpretation of a discretionary-fee provision and the requirement of bad faith for fee awards to prevailing defendants, drawing parallels to similar Illinois statutes. This ruling underscores the challenges defendants face in recovering legal costs in publicity rights disputes and highlights the judiciary’s cautious approach to fee-shifting in such cases.
Case Background
The lawsuit, Nicholas Giovannelli v. Walmart, Inc. et al. (No. 1:21-cv-01092), stemmed from Walmart’s sale of posters featuring a photograph of plaintiff Nicholas Giovannelli, taken by a U.S. Army photographer during a combat patrol in Afghanistan. Giovannelli alleged that Walmart’s unauthorized use of his image violated the IRPA (765 ILCS 1075/1 et seq.) and caused emotional distress by retriggering his post-traumatic stress disorder. The emotional distress claim was dismissed early in the case, and Walmart secured summary judgment on the IRPA claim in 2024, as the claim was deemed time-barred by the statute’s limitations period.
Following its victory, Walmart moved to recover attorney’s fees under Section 55 of the IRPA, which allows courts to award “reasonable attorney’s fees, costs, and expenses” to the prevailing party at their discretion. Walmart argued that a fee award would deter frivolous, time-barred claims and protect defendants from costly litigation, aligning with the statute’s objectives.
Court’s Rationale for Denying Fees
Judge Chang denied Walmart’s motion, emphasizing that the IRPA’s fee-shifting provision mirrors the discretionary framework of the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.). Drawing on the Illinois Supreme Court’s precedent in Krautsack v. Anderson (861 N.E.2d 633, 2006), the court held that a prevailing defendant must demonstrate the plaintiff’s bad faith to trigger a fee award under such discretionary provisions. This requirement stems from the remedial purpose of statutes like the IRPA, which aim to protect individuals’ rights—in this case, to control the commercial use of their identity—while ensuring access to justice for claims with often modest damages.
Giovannelli’s claim, while ultimately unsuccessful, was not deemed frivolous or brought in bad faith. The court noted that the plaintiff’s allegations centered on genuine harm, supported by his testimony about the emotional impact of seeing his image on Walmart’s posters. Without evidence of bad faith, such as intentional misrepresentation or vexatious litigation, Walmart’s request failed to meet the threshold for a fee award.
The court also considered the broader implications of fee-shifting in IRPA cases. Citing Krautsack, Judge Chang highlighted that the statute’s $1,000 statutory damages option reflects the difficulty of quantifying actual damages in publicity rights cases, particularly for non-celebrities like Giovannelli. Routine fee awards to defendants could deter meritorious claims, chilling plaintiffs’ ability to seek redress for violations of their publicity rights. The court concluded that awarding fees in this case would not serve the IRPA’s purpose of protecting individual identity rights.
Implications for Future Litigation
The ruling has significant implications for defendants seeking attorney’s fees under discretionary fee-shifting provisions in Illinois and potentially other jurisdictions. Legal experts note that the bad-faith requirement creates a high bar for defendants, aligning with the judiciary’s intent to preserve access to courts for plaintiffs with limited resources. “This decision reinforces that fee awards are not automatic for prevailing defendants,” said Professor David Engstrom of Stanford Law. “Courts are wary of penalizing plaintiffs unless there’s clear evidence of misconduct.”
For Walmart, the denial adds to a mixed record on fee requests. In contrast, a 2011 Fifth Circuit case, Wal-Mart Stores, Inc. v. Qore, Inc. (No. 10-60266), saw Walmart successfully recover fees under a contract’s indemnification clause, though that award was later vacated for overreach. The Giovannelli decision, however, underscores the distinct challenges of statutory fee-shifting, particularly under laws designed to protect individual rights.
Broader Context and Appeal
The case remains under appeal (USCA No. 24-2869), with a tracking status hearing reset for December 5, 2025. Giovannelli’s counsel argues that the underlying summary judgment was erroneous, potentially reviving the IRPA claim. Meanwhile, Walmart may challenge the fee denial, though experts believe the bad-faith requirement makes reversal unlikely absent new evidence.
The decision also reflects broader trends in fee litigation. A 2025 Third Circuit ruling in Clemens v. New York Central Mutual Insurance Co. (No. 17-3150) affirmed courts’ authority to reject “outrageously excessive” fee petitions outright, but Giovannelli shows courts’ reluctance to award fees against plaintiffs without clear misconduct, even when claims fail.
As the legal industry navigates increasing costs—$810,000 in fees were at stake in the Qore case, compared to $36,251.50 here—the Giovannelli ruling serves as a reminder that discretionary fee provisions prioritize access to justice over deterring unsuccessful claims. For now, Walmart and similar defendants face an uphill battle in recovering legal costs under statutes like the IRPA, particularly without evidence of plaintiff malfeasance.
Sources: Giovannelli v. Walmart, Inc. et al, No. 1:21-cv-01092 (N.D. Ill. 2025), Justia Law, Illinois Right of Publicity Act (765 ILCS 1075/55), Krautsack v. Anderson (861 N.E.2d 633, 2006), The National Law Review, X Post by @legalnewsfeed