Grow Company, Inc. v. Chokshi, ___ N.J. Super. ___ (App. Div. 2012). This is yet another in what seems to be an endless stream of appeals of awards of attorneys’ fees. That stream flows despite the Supreme Court’s admonition in several cases, including Rendine v. Pantzer, 141 N.J. 282 (1995), and Furst v. Einstein Moomjy, Inc., 182 N.J. 1 (2004), that fee disputes should not give rise to a second litigation, that appellate courts should only rarely overturn
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Walker v. Giuffre, 209 N.J. 124 (2012). In Walker and Humphries v. Powder Mill Shopping Plaza, two different Appellate Division panels had each ruled that restrictive principles governing attorneys’ fee awards under federal fee-shifting statutes, as expressed in Perdue v. Kenny A., ___ U.S. ___, 130 S.Ct. 1662 (2010), were to be applied to fee awards under New Jersey’s fee-shifting statutes such as the Consumer Fraud Act (implicated in Walker<
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Fox v. Vice, 131 S.Ct. 2205 (2011). The Civil Rights Act, 42 U.S.C. §1983, includes a fee-shifting provision, 42 U.S.C. §1988. Most often, it is a prevailing plaintiff who seeks fees under that provision. But section 1988 allows a prevailing defendant to seek a fee award where “the plaintiff’s action was frivolous, unreasonable, or without foundation.”
In this case, some of plaintiff’s claims were found to be frivolous while others were not. Justice Kagan
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