Commercial Litigation and Arbitration

Prevailing Party — Preliminary Injunction — Attorney’s Fees

In Buckhannon Bd. & Care Home v. W. Va. Dep't of Health & Human Res., 532 U.S. 598 (2001), the Supreme Court ruled that a plaintiff was not ‛prevailing party“ for attorney's fees purposes if it succeeded in crushing the defendant’s will and obtaining the relief it sought voluntarily. To "prevail," it had to obtain an ‛alteration in the legal relationship of the parties“ through a judgment or court-ordered consent decree. (So much for Sun Tzu’s dictum that ‛supreme excellence consists in breaking the enemy's resistance without fighting“ ( at III.2.). In fairness to him, though, Sun Tzu never discussed attorney's fees associated with that type of victory.)

On June 4, 2007, the Court contracted ‛prevailing party“ status a little further. It ruled in Sole v. Wyner, 127 S. Ct. 2188 (2007), that winning a preliminary injunction is insufficient in circumstances where a permanent injunction is later denied: ‛Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.“ Ironically, the preliminary injunction was all the plaintiff in Sole really needed. She was an artist whose planned ‛nude art“ display had been banned but was permitted to proceed by virtue of the preliminary injunction. The plaintiff wanted more, however, and sought a permanent injunction to permit a similar display in the future. The District Judge, understandably displeased by the fact that that the terms of the preliminary injunction were not honored (some of the nude coterie didn’t contain themselves within the designated area), denied the permanent injunction. Maybe the plaintiff should have been guided by Lincoln: ‛One war at a time.“

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