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Saturday, August 30, 2008

08-19-08 Thomas Best v. C&M Door Controls

Plaintiff filed suit against his employer alleging causes
of action under the Prevailing Wage Act (PWA) and CEPA.
Defendant made a pre-trial offer of judgment in the amount of
$25,000, which was not accepted, and trial commenced. The jury
returned a verdict of $2,600 in plaintiff's favor on the PWA
claim, and a verdict of no cause on the CEPA claim. After the
verdict was returned, but prior to each side making its request
for counsel fees and costs, the Supreme Court's amendments to
the offer of judgment Rule (the Rule) became effective.

Plaintiff sought counsel fees as a prevailing party under
the PWA's fee-shifting provision. Defendant sought counsel fees
under CEPA's "frivolous litigation" provision, as well as the

We concluded that defendant was not entitled to fees under
CEPA. We then concluded that the amended version of the Rule
applied because it was in effect when defendant made application
for its "allowances" under the Rule. As amended, the Rule
permits the trial judge to deny an allowance to a non-claimant
even if it obtained a "favorable" result if such an award
"conflicts" with the underlying policy of the fee-shifting
statute at issue.

We determined that an award to the defendant employer under
the Rule did not conflict with policies supporting the PWA, but
did conflict with the policies supporting CEPA. We remanded the
matter to the trial court to further consider defendant's
application under the Rule.

We also remanded the matter so that the trial judge could
reconsider his award to plaintiff, and limit the award to that
time reasonably spent in prosecuting plaintiff's PWA claim.

In concurring, Judge Stern did not necessarily agree that
the amended version of the Rule should apply, but nonetheless
reached the same result under the version of the Rule in
existence when the offer was made and the trial occurred.
Furthermore, while he agreed that the "policy embodied" in the
PWA is different than that "embodied in other fee-shifting
statutes," he believed the Rule "might well be inapplicable when
plaintiff prevails in a case commenced under another fee-
shifting statute."