At this year’s Above & Beyond Pro Bono Achievement Awards and Benefit, Sanctuary for Families is honoring a team of Hogan Lovells attorneys for their pro bono work on behalf of Sanctuary client “Lin,” a Malaysian mother of a toddler boy. The Hogan Lovells team of partner Gary Serbin (currently at Kofsky Schwalb LLC), counsel Andrew Behrman (currently at Baker Botts LLP), and associates Nicole Schiavo, Anjum Unwala, and Jordan Estes (currently at the U.S. Department of Justice) fought hard and successfully to reverse a federal court judgment ordering Lin to pay nearly $300,000 to her abusive husband.
When Lin came to Sanctuary she had already endured years of severe and repeated physical, sexual, and psychological violence in Singapore at the hands of her husband, a wealthy Iranian businessman. Some of the incidents took place when she was holding her little boy.
Although Lin repeatedly reported the abuse to the police, sought medical treatment for injuries her husband inflicted on her, and attempted to obtain a civil protective order, she was unable to obtain the protection she and her baby needed. Fearing for her life and her child’s safety, she fled to New York with her son.
Lin’s husband filed a petition in the U.S. District Court in New York, demanding that the son be returned to Singapore pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. Granting his attorney’s ex parte application, the District Court judge ordered the child to be seized by federal marshals and given to the father.
Going to trial
At trial Lin testified in detail about her husband’s abuse and the grave danger that she and her child would be in if forced to return to Singapore, and the court admitted into evidence multiple police reports and hospital records documenting the violence. Although U.S. District Judge P. Kevin Castel found that the father perpetrated multiple acts of domestic violence against the mother, some in the presence of the child, he ordered that the child be returned to Singapore. The appellate court affirmed this decision.
Lin was heartbroken, but her husband was not through with his abuse. He asked the District Court to force Lin to pay him $618,000 in legal fees and expenses for costs he incurred in litigating the Hague Convention case. Knowing this would financially devastate their client, Sanctuary turned to Hogan Lovells to fight the fee motion.
An uphill battle
The Hogan Lovells pro bono team rose to the challenge, arguing forcefully to Judge Castel that requiring Lin to pay her husband’s expenses would be “clearly inappropriate” given his history of domestic violence against her and her limited financial means.
Judge Castel rejected their argument that the domestic violence rendered a fee award inappropriate. Although the team succeeded in reducing the fees by more than half, Judge Castel ordered Lin to pay nearly $300,000 to her abusive husband.
“We advised Sanctuary that there were grounds to appeal the fee award, but it was highly unlikely that the appellate court would eliminate the fees entirely,” said Nicole Schiavo, a senior associate at Hogan Lovells.
“Nonetheless, we felt very strongly that a victim of abuse should not have to pay her batterer’s expenses, especially when those expenses resulted from the batterer’s own actions that caused the victim to flee.”
Knowing they faced an uphill battle, the team nonetheless filed a notice of appeal and took the fight to the Second Circuit Court of Appeals.
Shortly before New Year’s Eve, Lin’s husband launched a surprise procedural attack on the team’s notice of appeal. “We got a call from opposing counsel claiming our notice of appeal was defective in that it was filed too late,” said Nicole. “He threatened that he would file a motion to dismiss our appeal as untimely if we didn’t voluntarily withdraw it.”
The Hogan Lovells team worked around the clock over the holiday weekend to respond to the emergency motion to dismiss the appeal. The motion was ultimately defeated and the appeal was argued by former Hogan Lovells partner Gary Serbin in January 2015.
In March 2016, the Second Circuit issued a ruling that happily surprised everyone – the Court completely reversed Judge Castel’s order and eliminated the fee award in its entirety.
Setting a new precedent
In an opinion written by Chief Judge Robert A. Katzmann, the Second Circuit found that awarding fees to Lin’s abusive husband was “clearly inappropriate” given his “multiple, unilateral acts of intimate partner violence” against her. Chief Judge Katzmann stated that,
“intimate partner violence in any form is deplorable. It can include a range of behaviors, from a single slap to a lethal blow. However, we need not determine in the matter at hand what quantum of violence must have occurred to warrant a finding that fees are ‘clearly inappropriate,’ given the repeated violence established in the record here.”
“We jumped for joy after reading the decision, which sets a new precedent in the Second Circuit,” explained Nicole. “This decision makes clear that domestic violence alone can make a fees award to an abusive partner clearly inappropriate under the International Child Abduction Remedies Act.”
Reflecting on her experience working on the appeal, Hogan Lovells associate Anjum Unwala said, “We are so pleased that our team’s perseverance and expertise in international law achieved this favorable outcome. Most of all, we hope this decision helps our client move away from an abusive situation and go forward with her life.”
“Working with Sanctuary for Families gave me a true understanding of the tireless work they do as an organization to help those in need,” added Andrew Behrman, former Hogan Lovells counsel and now a partner at Baker Botts. “It was a privilege to play a small part in this case with them.”
For Lin, the Hogan Lovells victory ensured that she will not be impoverished and indebted as she struggles to reunite with her little boy in Singapore.
Join us at our Above & Beyond celebration on October 19, 2016 at the Highline Ballroom as we honor Hogan Lovells’ outstanding pro bono work. Learn more about the event here. If you can’t join us, but would like to support Sanctuary for Family’s work, please consider making an Above & Beyond donation here.
Erin Meyer is the Pro Bono Manager at Proskauer Rose LLP and was formerly a senior associate at Hogan Lovells US LLP. She is also a member of Sanctuary’s Pro Bono Council and Co-Chair of this year’s Above & Beyond event.