A recent law.com story, “New Jersey Hit With Fees Over Truth-in-Music Law” reports that the U.S. Circuit Court of Appeals for the Third Circuit held in Singer Management Consultants Inc. v. Milgram that a music promoter, which accused the state of violating its constitutional and trademark right, was the prevailing party for fee-shifting purposes.  As such, New Jersey will have to pay the legal fees of the promoter that sued the state to stop it from enforcing its “truth-in-music” law.  The lower court dismissed the case and denied attorney fees, finding the case moot because the state did an about-face once it became clear it would lose.  Thus, the promoter, Live Gold Operations Inc. never obtained an order on the merits. 

The district court relied on Buckhannon Bd. & Care Home v. W. Va Dept of Health & Human Res., where the U.S. Supreme Court held prevailing party fees are not available for plaintiffs who do not win a judgment but act as the catalyst for a voluntary change in defendants’ conduct.  But the appeals court, also relying on Buckhannon,allowed a fee award even though no judgment on the merits was reached because the state’s action in backing off its initial stance was not voluntary but resulted from action of the district court.  In reversing, Third Circuit Judge Jane Roth, joined by Ruggero Aldisert, stated that Live Gold did prevail because it obtained complete relief based on the state’s concession to its view of the law.