Elder v. National Conference of Bar Examiners, et al., No. C 11-00199 SI, (N.D. Cal. Sept. 12, 2011)

This is an order granting plaintiff's motion for attorney's fees and granting defendant's motion to dismiss in an Americans with Disabailities Act discrimination claim. While this case is not HIV-specific, it is an important decision on the application of attorney's fees following the grant of a preliminary injunction in a case regarding reasonable accomodations.

In 2011, the United States District Court for the Northern District of California granted the plaintiff, Timothy Elder, his request for a preliminary injunction against the defendant, the National Conference of Bar Examiners (NCBE). Mr. Elder, a blind graduate of the University of California Hastings College of Law, had sought the injunction to permit him to take the Multistate Bar Exam in electronic format. He then took and passed the Multistate Bar Exam utilizing the accommodations provided by the injunction. Mr. Elder sought approximately $250,000 in attorney's fees and costs from NCBE as a prevailing party under the American with Disabilities Act (ADA) and the California Unruh Civil Rights Act (Unruh). In turn, NCBE moved to dissolve the bond that Mr. Elder was required to post after the Court granted his preliminary injunction and to dismiss the case on the grounds it was now moot since Mr. Elder had already received his accommodations.

The Court here awarded Mr. Elder $250,000 in attorneys fees and costs because the Court deemed the order denying NCBE's motion to dismiss and granting of Mr. Elder's preliminary injunction sufficient to characterize Mr. Elder as a "prevailing party." The Court rejected NCBE's argument that it should not have to pay attorneys fees because the case did not proceed to a ruling on the merits. The Court stated that NCBE's own decisions – that is, to not appeal the Court's preliminary injunction order and to move to dismiss the case as moot – were the very reasons the case did not proceed. However, the Court granted NCBE's motion to dismiss on the basis that the controversy was now moot since Mr. Elder had received his accommodations.