A recent NLJ story, “Interim Attorney Fees Awarded in Consumer Fraud Suit Over Mortgage” reports that a New Jersey judge has awarded counsel fees during a pending Consumer Fraud Act suit.  Superior Court Judge Kenneth Levy made the award after granting preliminary injunctive relief for the plaintiffs, saying “the question is…can the court award counsel fees at this stage in the proceeding, and there is really no case law that’s been presented to me that says I cannot do that.”  In his motion for the pre-judgment fee award, plaintiffs lawyer Abraham Borenstein said there is precedent for interim fee awards in other fee-shifting cases though none under the applicable Consumer Fraud Act, section, N.J.S.A. 56:8-19. 

Ruling on April 23 from the bench, Levy found the preliminary injunction –based on a probability of success on the merits—was sufficient to trigger that section, which provides for fees and costs to anyone granted equitable relief under the Act.  “Although I’m not in a position to order final judgment, I think that the plaintiffs should be awarded counsel fees for at least the work that they had to do through obtaining the preliminary injunction,” the judge said in Pena v. Newell Funding, LLC, ESX-C-16-09.  Borenstein called the fee award “groundbreaking” and says it means that “litigants—who previously could not afford to initiate a lawsuit are now empowered.”