On March 29, 2013, after more than 11 years of litigation, the United States District Court for the District of Columbia held that a defendant, as the prevailing party, was entitled to attorneys’ fees under the Endangered Species Act’s fee shifting provision.  See Animal Welfare Institute v. Feld Entertainment, Inc., No. 03-2006 (D.D.C. Mar. 29, 2013) (pdf).

The fee provision states, in relevant part, "in issuing any final order in any suit brought" under the citizen suit provision of the Endangered Species Act, a court, in its discretion, "may award costs of litigation, (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate."  The district court first found, relying on a 1983 Supreme Court decision analyzing the Clean Air Act’s fee shifting provision, that a fee award is only "appropriate" when the requesting party is also the "prevailing party."  In addition to being a prevailing party, however, the district court also found that for a defendant to be entitled to fees under the Endangered Species Act, one of the following criteria had to be satisfied: (i) the action must have been frivolous, unreasonable, or without foundation; or (ii) plaintiffs must have continued the litigation after it became clear that the action was frivolous, unreasonable, or without foundation.

Because the action was dismissed with prejudice after it was determined that plaintiffs lacked standing, the district court found that the defendant was a prevailing party.  As for the second element, the district court found that because it was "conclusively determined that" the key plaintiff for purposes of standing "was a paid plaintiff, hired by the other plaintiffs and their counsel," the case "was groundless and unreasonable from its inception, and, therefore, that [defendant] should recover the attorneys’ fees it incurred when it was forced to defend itself in litigation."

Because of the egregious nature of the facts, the district court also took the remarkable step of ordering plaintiffs jointly and severally liable for the fee award.