Commercial Litigation and Arbitration

RICO / Sarbanes-Oxley — Federal Statute That Permits Only a Prevailing Plaintiff to Recover Attorney Fees Does Not Implicitly Bar a Defendant from Recovering Fees Authorized Elsewhere

Smith v. Psychiatric Solutions, Inc., 2014 U.S. App. LEXIS 8477 (11th Cir. May 6, 2014):

Sarbanes-Oxley's fee provision states that "[a]n employee prevailing in any action under [the statute] shall be entitled to all relief necessary to make the employee whole," including "reasonable attorney fees." 18 U.S.C. § 1514A(c)(1)-(2). The statute is silent as to whether similar relief is available  [*7] for employers who successfully defend against an employee's Sarbanes-Oxley claim. We see no reason to construe this statutory silence as an implicit prohibition against awarding attorneys' fees to employers. Sarbanes-Oxley's fee provision requires courts to award fees to prevailing plaintiffs; it does not bar a defendant from recovering attorneys' fees that are authorized elsewhere. See Chang v. Chen, 95 F.3d 27, 28 (9th Cir. 1996) ("[T]his provision [of the Racketeer Influenced and Corrupt Organizations Act] permits only prevailing plaintiffs to recover attorneys' fees. Courts, however, have never construed this provision as precluding a prevailing defendant from recovering attorneys' fees when authorized elsewhere."); O'Ferral v. Trebol Motors Corp., 45 F.3d 561, 564 (1st Cir.1995) (rejecting the argument "that because RICO provides for an award of costs to plaintiffs, 18 U.S.C. § 1964(c), it implicitly bars costs for defendants even if elsewhere authorized").

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