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Third Circuit to Decide Proper Prevailing Party Test

September 8, 2010 | Posted in : Fee Award, Fee Entitlement / Recoverability, Fee Issues on Appeal, Fee Jurisprudence, Prevailing Party Issues

A recent law.com story, “In ‘Doo-Wop’ Case, 3rd Circuit to Consider ‘Prevailing Party’ Fee Issue” reports that the U.S. Court of Appeal for the Third Circuit has granted en banc rehearing before a 16-judge court to decide on the proper test for determining when a plaintiff is entitled to attorney fees as the “prevailing party”.  The underlying case, Singer Management Consultants Inc. v. Milgram involves a dispute between a music promoter and the State of New Jersey in a “truth-in-music” law.  U.S. District Judge Dickerson Debevoise sided with the music promoter and issued a TRO that enjoined the state from “interfering in any way” with a concert.

But when the music promoter’s lawyers petitioned the court for attorney fees, Debevoise refused, saying the state’s decision to concede the case had left the plaintiff without a judgment in its favor and therefore unable to claim the status of the “prevailing party”.  On appeal, the music promoter won a ruling that said it should be entitled to attorney fees because Debevoise was too strict in his reading of Buckhannon.  Writing for the majority, Senior Judge Jane R. Roth concluded that Buckhannon did not control because New Jersey did not concede its position until Debevoise made it clear that he was poised to rule in the music promoter’s favor.