Academic journal article Boston College Law Review

SHIFTING TARGETS ON SHIFTING FEES: ATTORNEY'S FEES IN THE WAKE OF SINGER MANAGEMENT CONSULTANTS, INC. V. MILGRAM

Academic journal article Boston College Law Review

SHIFTING TARGETS ON SHIFTING FEES: ATTORNEY'S FEES IN THE WAKE OF SINGER MANAGEMENT CONSULTANTS, INC. V. MILGRAM

Article excerpt

Introduction

In the United States, under the "American Rule," parties to litigation must pay their own attorney's fees.1 Certain statutes, however, carve out "fee-shifting" exceptions to this rule.2 Many of these statutes authorize courts to award reasonable attorney's fees to prevailing parties.3 For example, the Civil Rights Attorney's Fees Awards Act of 1976 ("Fees Awards Act") permits courts to grant prevailing parties attorney's fees in civil rights cases.4 Congress passed this law to encourage indi viduals to vindicate their civil rights, thereby enforcing civil rights laws.5 Because the remedy in civil rights suits is often an injunction, plaintiffs act as private attorneys general, obtaining relief not only for themselves but also for others.6 Courts typically treat prevailing party fee-shifting statutes similarly; principles applied under one such statute wall be applied under other such statutes as well.7

Notwithstanding this history, in 2011, in Singer Management Consultants, Inc. v. Milgram, the U.S. Court of Appeals for the Third Circuit sitting en banc dealt a significant blow to "prevailing parties" seeking to claim attorney's fees under fee-shifting statutes.8 Specifically, the court concluded that a party may not collect as a prevailing party from adversaries that relinquish a claim in in-court proceedings.9 In so doing, the court undermined the congressional intent behind creating a feeshifting exception to the "American Rule" for parties vindicating their civil rights.10

Part I of this Comment outlines the factual and procedural history leading up to the Third Circuit's decision.* 11 It then provides the legal landscape from which this decision emerged.12 Part II explores the reasoning used by the majority and the dissents in the en banc decision.13 Finally, Part III argues that the Third Circuit's decision unnecessarily narrowed parties' rights in civil rights litigation.14 It further recommends that, to avoid this result, attorneys who plan to seek attorney's fees should request a permanent formal order.15

I. Singer Management Consultants, Inc. v. Milgram: The Road to Requesting Prevailing Party Attorney's Fees

A. Events Leading up to Legal Action

Live Gold Operations, Inc. ("Live Gold") held common-law unregistered trademarks for the names of two 1950s Doo-Wop musical groups known as 'The Platters" and The Cornell Gunter Coasters."16 Under these unregistered trademarks, Live Gold managed and promoted these groups' musical recordings and performances.17 In August 2007, both groups were scheduled to perform at a two-week concert series at the Atlantic City Hilton Hotel.18 Upon learning about the concert, the State of New Jersey Attorney General's Office (the "State") informed Live Gold that its use of the trademarks The Platters" and The Cornell Gunter Coasters" might violate the New Jersey Deceptive Practices in Musical Performances Act, commonly referred to as the Truth in Music Act (TIM Act).19 In response, Live Gold provided the State with evi- dence of its ownership of unregistered trademarks in each group's name.20 The State, however, was not satisfied that unregistered trademarks should be treated the same as registered trademarks under the Act.21 Accordingly, the State advised the Hilton Hotel that it could avoid liability under the Act by ticketing and advertising the concert as a "tribute" or "salute."22 The Hilton Hotel complied and litigation ensued.23

B. Litigation and Procedural Posture of the Underlying Case

The day before the first Hilton concert in August 2007, Live Gold sued the State seeking a temporary restraining order (TRO) and injunctive relief against the State's enforcement of the Act.24 Live Gold argued that the State's enforcement of the TIM Act conflicted with the federal Lanham Act and violated Live Gold's civil rights.25 The U.S. District Court for the District of New Jersey issued the TRO, stating that there was "sufficient problem with the State's position" and "a likelihood of success on the merits"; further, in issuing the order, it reasoned that it would have an opportunity to "get to the merits" of the case at the preliminary injunction hearing. …

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