Court Denies lululemon’s Motion for Attorneys’ Fees Under Fee Shifting Provision

Nutter McClennen & Fish LLP
As reported here last summer, Judge Salinger denied lululemon’s motion to dismiss a summary process action brought by lululemon’s landlord, CWB Retail. Later in the litigation, CWB voluntarily dismissed the action with prejudice. lululemon then brought a motion for attorney’s fees under the parties’ lease.
According to the lease, the unsuccessful party in a litigation over lease performance obligations would have to pay “all reasonable fees and expenses incurred by [the] successful party in connection with obtaining such final order, decree or judgment.” lululemon claimed that it was entitled to recover fees and expenses. Judge Salinger disagreed, pointing out that lululemon failed to show that “any part of its defense efforts, including its unsuccessful motion to dismiss the action, had any causal connection to CWB’s voluntary dismissal.”
Had provided that “the successful party could recover any fees and expenses [incurred] ‘in connection with the litigation,’” Judge Salinger observed, the outcome would have been different. But the lease’s language was narrower than that. Thus, despite CWB’s dismissal of the litigation, Judge Salinger denied lululemon’s motion for fees. 
The Business Litigation Session of the Massachusetts Superior Court:

Docket Number: 2084CV00259 – BLS2

Case Name: CWB Retail Limited Partnership v. Lululemon USA, Inc.

Date of Decision: January 28, 2021

Judge: Kenneth W. Salinger

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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