1st Dept Reverses Prior Decisions in Major SBLS Victory

March 5, 2013, New York, NY—The NYS Supreme Court Appellate Division, First Department, today reversed two of its own prior decisions and held that prevailing parties in New York State can collect legal fees under the “catalyst theory”, unlike federal litigants who are bound by the U.S. Supreme Court’s decision in Buckhannon. The decision was a major victory which will help to alleviate the crisis caused by the lack of availability of counsel to represent low-income New Yorkers. The petitioner was represented by Peter Kempner of South Brooklyn Legal Services, a program of Legal Services NYC.

The Department’s previous decisions (in Auguste and Wittlinger), based on Buckhannon, had held that when a person commences an action or proceeding against the State, and the State moots the action by voluntarily granting the relief sought, the State Equal Access to Justice Act (State EAJA) does not entitle the person to recover attorneys’ fees under the theory that the lawsuit was the “catalyst” for the favorable State action. In Solla v Berlin (2013 NY Slip Op 01362) the Court finds that there is no evidence to suggest that the New York State Legislature, in enacting the State EAJA, ever intended to preclude attorneys’ fee awards under the catalyst theory.

“The Court’s decision in Solla v. Berlin again levels the playing field and restores the original intent of the New York State Equal Access to Justice Act,” said Peter Kempner. “The resurrection of the ‘catalyst theory’ will encourage more attorneys to represent low-income plaintiffs, helping to address the severe and chronic shortage of legal assistance for the indigent in New York State, and will provide an important check on state agencies who act in violation of the law without substantial justification.“

From a front page article in the March 6th New York Law Journal :

Peter Vollmer, a solo attorney who represents poor clients and who represented the petitioners in both Auguste and Wittlinger, filed an amicus brief in the case. He said he was pleased with the decision, and that it would open the door for private practice attorneys to represent indigent clients in actions against the state.

“My practice was in serious jeopardy when the catalyst test fell by the wayside” in 2001, he said. Vollmer said he was able to keep his practice afloat by representing plaintiffs in class actions, which can only be settled by an order of the court.

“If you take away the financial incentive of the EAJA, the private bar won’t go near these cases,” he said. “I would hope that the private bar takes another look at these kinds of cases.”

Gene Doyle, a social worker at the non-profit People Organized for Our Rights who often refers poor clients’ cases to attorneys, also said the decision would likely be a boon for indigent New Yorkers and for private-practice attorneys who want to represent them.

Read the full NYLJ article (subscription required).

Read the March 6th Thompson Reuters article.

Read the decision.

Contact: Peter Kempner, 718.233.6432
                 Kate Whalen, 646.442.3654