Shifting Targets on Shifting Fees: Attorney’s Fees in the Wake of Singer Management Consultants, Inc. v. Milgram

Abstract

On June 15, 2011, in Singer Management Consultants, Inc. v. Milgram, the U.S. Court of Appeals for the Third Circuit sitting en banc held that a temporary restraining order vacated after a defendant’s change in position is insufficient to confer prevailing-party status for purposes of awarding attorney’s fees. As a result, parties who obtain in-court relief short of a formal court order may not be able to obtain attorney’s fees. This Comment argues that in arriving at that decision, the Singer court too narrowly construed the phrase “judicially sanctioned.” It further advises that, to avoid this result, attorneys who plan to seek fees should request a permanent formal order, which courts have recognized as sufficient to confer prevailing-party status.