SELECTED FEDERAL ATTORNEY S FEES STATUTES

Transcription

1 SELECTED FEDERAL ATTORNEY S FEES STATUTES Adapted from NLADA and NSCLC, Claiming and Collecting Attorney s Fees: An Introduction (Vol. 3) (March 15, 2010) 1 I. Civil Rights A. Civil Rights Attorney s Fees Award Act, 42 U.S.C B. Rehabilitation, Comprehensive Services & Developmental Disabilities Amendments of 1978, 29 U.S.C. 794(a) C. Voting Rights Act Amendments of 1975, 42 U.S.C (e) D. Civil Rights Act of 1964, 42 U.S.C. 2000a-3 (b) (public accommodations) 2000e-5(k) (employment) E. Age Discrimination In Federally Assisted Programs, 42 U.S.C. 610(e)(1) F. Fair Housing Act, 42 U.S.C. 3612(c) G. Individuals with Disabilities Education Act, 20 U.S.C. 1415(e)(4)(B) H. Americans with Disabilities Act, 42 U.S.C II. Employment A. Employees Retirement Income Security Act (ERISA), 29 U.S.C. 1132(g)(1), 29 U.S.C. 1451(a)(2)(e) B. COBRA of 1986 (continuation of health care insurance coverage) - see ERISA, supra C. Federal Employee Merit System Protection (Civil Service), 5 U.S.C. 7701(g) (Appeal of Agency Personnel Action); Civil Service Reform Act of 1978, 5 U.S.C. 5596(b)(1)(A)(ii) D. Fair Labor Standards Act, Equal Pay Act, 29 U.S.C. 216(b) E. Longshore and Harbor Workers Compensation Act. 33 U.S.C. 928 F. Age Discrimination in Employment Act of 1967, 29 U.S.C. 626(b) III. Consumer Protection A. Bankruptcy laws 1 Adapted by Scott Rosenberg, Director of Litigation, Law Reform Unit, The Legal Aid Society

2 1. 11 U.S.C. 362, violation of stay and contempt theories U.S.C. 366, termination of utility services U.S.C. 524, protection of discharge U.S.C. 525(a), injunction against discrimination 5. Bankruptcy Rule 9011 (frivolous pleadings) USC 1988, actions against state/local governments 7. Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), and as to IRS, 26 USC See Consumer Bankruptcy Law & Practice, 16.5 (9th Ed. 2009), National Consumer Law Center B. Fair Debt Collection Practices Act, 15 U.S.C. 1692k C. Truth-in-Lending Act, including HOEPA, 15 U.S.C. 1640(a), 1667(b), 1667d(a), 1681n(a)(3), (c), 1691e(d) D. Consumer Leasing Act of 1976, 15 U.S.C. 1667(a), 1667d(a) E. Fair Credit Reporting Act, 15 U.S.C. 1681n(a)(3), (c), 1681o F. Equal Credit Opportunity Act, 15 U.S.C. 1691e(d) G. Electronic Fund Transfer Act, 15 U.S.C. 1693m(a), (f). H. Health-Emergency Medical Treatment (anti-dumping act), 42 U.S.C. 1395dd(d)(2)(A) and 42 U.S.C I. Housing & Community Development Act, 15 U.S.C. 1709(c) J. Magnuson-Moss Warranty-Federal Trade Improvement Act, 15 U.S.C. 2310(d)(2) K. Motor Vehicle Information and Cost Savings Act (Odometer Law), 15 U.S.C. 1918(a) L. Household Goods Transportation Act of 1980, 49 U.S.C (d), (e) M. Condominium and Coop. Conversion Protection & Abuse Relief Act of 1980, 15 U.S.C 3608(d), 3611(d).

3 IV. Other A. Suits against federal agencies - Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A) B. Civil tax litigation with Internal Revenue Service, 26 U.S.C (if IRS position not substantially justified). (Fees may be awarded for pro bono work. 26 USC 7430(c)(3)(B); see Morrison v. C.I.R., 565 F.3d 658 (9th Cir. 2009).) C. Freedom of Information Act (FOIA) - 5 U.S.C. 522(a)(4)(E) D. Federal Rules of Civil Procedure, Rule 11(c)(2); Rules 37(a)(5), 37(b)(2)(C), 37(c)(1)(a), 37(c)(2) E. Labor Organizations- e.g. Labor Management Relations Act of 1959, 29 U.S.C. 431(c) F. Sunshine & Privacy - e.g., Government in Sunshine Act, 5 U.S.C. 552b(I); Privacy Protection - 42 U.S.C aa-6(f) and 12 U.S.C. 2417(a)(4)

4 SELECTED NEW YORK STATE AND CITY ATTORNEY S FEES STATUTES I. General A. Actions and proceedings against the State 1. Equal Access to Justice Act, C.P.L.R et seq. (fees shall be awarded to a prevailing party unless the court finds that the position of the state was substantially justified or that special circumstances make an award unjust) B. Civil Contempt 1. Judiciary Law 773 (Cases hold that 773 supports an award of attorney s fees. See, e.g., Children s Village v. Greenburgh Eleven Teachers' Union Federation, 249 A.D.2d 435, 671 N.Y.S.2d 503 (2d Dep t 1998); Lembo v. Mayendia-Valdes, 293 A.D.2d 789, 739 N.Y.S.2d 775 (3d Dep t 2002).) C. Class actions 1. C.P.L.R. 909 (attorney s fees may be awarded if judgment rendered in favor of the class) D. Sanctions for frivolous conduct or failure without good cause to appear at a hearing N.Y.C.R.R (a) (sanctions resulting from frivolous conduct ) N.Y.C.R.R (a) (sanctions resulting from attorney s failure, without good cause, to appear for scheduled hearing) II. Civil Rights Cases A. New York State Human Rights Law (housing discrimination cases only), Exec. Law 297(10) (court may in its discretion award reasonable attorney s fees to any prevailing or substantially prevailing party ) 1. Note that the State Human Rights Law does not authorize an award of attorney s fees to prevailing plaintiff with regard to other forms of discrimination. See New York City Bd. of Educ. v. Sears, 83 A.D.2d 959, 960, 443 N.Y.S.2d 23, 25 (2d Dep t 1981). B. New York City Human Rights Law, N.Y.C. Ad. Code 8-502(f) III. Consumer law cases A. Banking Law 6-L(8) (action challenging high cost home loans)

5 B. Banking Law 6-m(10) (defending foreclosure of sub-prime home loan, as defined by the statute) C. GBL 349(h) (in action challenging deceptive acts and practices, court may award reasonable attorney's fees to a prevailing plaintiff) D. GBL 350-e (same for false advertising claims) E. GBL 198-b(f)(5) (lemon law cases) (court may award reasonable attorney's fees to a prevailing plaintiff in any judicial action or proceeding arising out of an arbitration proceeding held pursuant the law) IV. Employment law cases A. Labor Law 198(1-a), 663(1) (unpaid wages) B. Labor Law 215(2) (employer who penalizes employees because of complaints of employer violations) V. Family law cases A. DRL 238 (counsel fees may be awarded in an action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment, or declaration of nullity of a void marriage) B. DRL 237(c) (award of counsel fees is mandatory where court finds that a default in paying support, maintenance or distributive award was willful) VI. Freedom of Information Law A. Public Officers Law 89(4)(c) (court may award fees when plaintiff has substantially prevailed and the agency had no reasonable basis for denying access or the agency failed to respond to a request or appeal within the statutory time ) VII. Housing law cases A. RPL 234 ( Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorney s fees and/or expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease,..., there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorney s fees and/or expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease or in the successful defense of any action or summary proceeding commenced by the landlord against the tenant arising out of the lease... ).