Consumer Law & Policy Blog

Attorney's Fees Litigation in the Supreme Court

By Brian Wolfman

Following up on yesterday's post from Steve Gardner, I wanted to let you know about two potentially important statutory attorney's fees cases before the Supreme Court.  In Davis v. Department of Justice, No. 06-1131, a fee-seeking plaintiff has asked the Court to address the question whether the rule limiting attorney's fees established in Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Resources, 532 U.S. 598 (2001), applies in Freedom of Information Act cases.  An amicus brief written principally by my colleague Adina Rosenbaum -- filed on behalf of Public Citizen, Judicial Watch, the Electronic Frontier Foundation, and the National Security Archive -- explains why the Court should grant review and put the brakes on Buckhannon.  In an apparent response to the amicus brief, the government has been ordered to respond to the petition.

In addition, on April 17, the Supreme Court will hear oral argument in Sole v. Wyner, No. 06-531, which addresses the circumstances, if any, in which statutory attorney's fees may be awarded to a plaintiff who secures a preliminary injunction.  A host of organizations from all over the political spectrum, including Americans United, Public Citizen, and the Institute for Justice, have joined an amicus brief that lays out what is at stake in this important case.

Good guys win one: Kim v. Euromotors West

by Stephen Gardner

Of late, many courts seem to bend over backwards to find ways to deny reasonable attorneys’ fees to a successful plaintiff. The most notorious example of this is the United States Supreme Court’s decision in Buckhannon Board and Care Home, Inc. v. W. Va. Dep't of Health and Human Resources, 532 U.S. 598 (2001), where the Court held that the term "prevailing party" is a legal term of art that, according to the leading legal dictionary, means a “party in whose favor a judgment is rendered.”

Since many cases are resolved before final judgment, the effect of the Supreme Court’s ruling is to force parties to a judgment rather than disposing of a dispute simply by settling and then dismissing the underlying lawsuit. Of course, the number of former plaintiff lawyers on the Supreme Court, indeed on most benches, is pretty small, so most judges don’t actually understand anything other than monthly billing (where the law firm is the prevailing party!).

This issue is particularly acute when the object of a lawsuit is an injunction changing the defendant’s wrongful practice. Under the Court’s logic, all a defendant need do is change its practice, and then move to dismiss, getting a free bite at the apple. This encourages wrongful acts, since there is no sanction if caught. It’s like a bank robber nabbed leaving the bank, who only has to promise to stop robbing banks in the future to beat the rap — he doesn’t even have to give the money back!