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August 28, 2019


Jan Van Der Hook

What the 2/8 DCA has done in this ruling is to tell all prevailing parties in such disputes to collect the award + legal fees and then -- even with a signed EJ-100 -- file what is a no risk appeal.

This decision encourages prevailing parties to file appeals in every similar case. This can be done to force the other side to spend money defending, or, offer additional money to settle. The prevailing party has no risks given that they can dismiss in the face of an OSC asking why their case should not be dismissed.

An EJ-100 is now absolutely meaningless in such prevailing party cases as is not a bar to appeal. The 2/8 DCA has allowed prevailing parties to have their cake and eat it too. Go for it. File those appeals.

A correct ruling in the lower court would not have awarded the defendant fees. The lower court appears to have not understood what a "prevailing party" is in this case.

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