Consistent with every court that has looked at this issue in the last few years, this court found that attorney fees are a legitimate consideration for a parent when assessing the adequacy of a settlement offer.
neither the Offer of Judgment nor the June 13, 2007 settlement offer make any mention of attorneys' fees or contain any proviso indicating who is the “prevailing party.” Moreover, even if either of these proposed agreements would have, at some point, acquired the “necessary judicial imprimatur” that would allow the plaintiff to seek attorneys' fees in this proceeding, both of these documents contain language clearly stating that the proposed settlement would be the “full and final agreement of all issues raised in the due process complaint in this matter.”
This language would have presented significant challenges to the plaintiff in terms of recovering attorneys' fees in a subsequent proceeding such as this one. Therefore, the relief that the plaintiff obtained from the AJ, whose Final Order did not foreclose further litigation on the attorneys' fees issue and explicitly deemed the plaintiff the “prevailing party,” was plainly “more favorable” than the offers of settlement, which were silent on the “prevailing party” issue, would have arguably foreclosed future litigation, and certainly put the issue of attorneys' fee recovery into significant question.
