February 2024 ยป thefivestar.com
45
February 2024
F E A T U R E S T O R Y
tion was entitled to fees and/or costs under
the underlying arbitration agreement.
Cases against awarding fees and/or costs:
Greenberg v. Boal & Co., 559 F. Supp.
368 (S.D.N.Y. 1983): The court held that
the prevailing party on a motion to
transfer venue was not entitled to fees
and/or costs under the underlying loan
agreement, which was silent on the issue
of motions for relief.
In re American Home Products Corp.,
952 F.2d 605 (2d Cir. 1991): The court held
that the prevailing party on a motion
to dismiss was not entitled to fees and/
or costs under the underlying contract,
even though the contract contained a
prevailing party fee provision. The court
reasoned that the contract was specifical-
ly aimed at resolving substantive contract
disputes, not procedural matters.
What to Do
T
he sword cuts both ways and moving
parties will want to be mindful their
motion has merit because in the event it
is denied debtor can also request fees as
prevailing party on the contract.
Given the conflicting case law on
this issue, it is best to consult with an
attorney who is familiar with the relevant
jurisdiction and the specific language of
your contract. The attorney can advise
you on your rights and the likelihood of
success in seeking fees and/or costs for a
motion for relief based on your specific
circumstances.
