In the April 8, 2021 decision of the Appellate Division in Gannett Satellite Information Network, LLC v. Township of Neptune, the Court affirmed the trial court’s decision to deny Gannett access to the internal affairs file of one police officer, affirmed the trial court’s decision to grant access to those records under the common law, and reversed the trial court’s award of counsel fees to Gannett under the common law right of access. On July 15, 2022, the Supreme Court granted certification, and defined the issue to be heard as follows: “In this lawsuit seeking police department internal affairs records, was plaintiff entitled to attorneys’ fees and does the catalyst theory apply to a common law right of access claim?”
The question of whether and under what circumstances counsel fees are available to parties who prevail under the common law is an important question. In the Supreme Court case of Mason v. Hoboken, the Court stated that the catalyst theory applied to both OPRA lawsuits and “to common law suits as well.” But the predicate question, which is whether a plaintiff who prevails under the common law is entitled to counsel fees, was not answered.
Under the American Rule, the party who prevails in a lawsuit cannot recover counsel fees from the losing party. There are many exceptions to this rule, including in OPRA cases, Law Against Discrimination cases, consumer fraud, cases, attorney malpractice, and others.
Based on how the Supreme Court framed the issue, the Supreme Court appears to be poised to answer the first question, which is whether a plaintiff who prevails under the common law is entitled to an award of counsel fees from the public agency that denied access to records. If the Supreme Court answers that question affirmatively, then it would, at least in our opinion, logically follow that the catalyst theory applies, because the catalyst theory applies in OPRA cases and in other types of cases involving fee-shifting where the plaintiff has prevailed.