Kerr, a member of defendant Screen Extras Guild, Inc., a labor organization, appeals from the district court's dismissal of his action under 29 U.S.C. Secs. 412 and 529. We reverse.

The following facts are not in dispute: Kerr was an unsuccessful candidate for the presidency of the Guild in December 1968. On May 12, 1969, Daily Variety, a motion picture industry trade publication, ran a story which stated that the Guild had been found in violation of the provisions of the Labor-Management Reporting and Disclosure Act which guarantee the rights of union members to campaign for elective office. The newspaper article was based on information supplied by Kerr. The president of the Guild charged Kerr with violating the Guild Constitution and By-laws by causing a false article to be published. A notice of hearing on the charges was issued on August 18, 1969, but the hearing was enjoined by a temporary restraining order from a state court. Another notice of hearing on the same charges was issued on September 23, but that hearing was enjoined by a temporary restraining order issued by the district court in this action which was filed on September 30.

Kerr brought this suit under Title I of the Labor-Management Reporting and Disclosure Act of 1959, charging that union officials were harassing him with threatened disciplinary proceedings in violation of his statutorily-guaranteed right of free expression. 29 U.S.C. Secs. 411(a)(2), 412, and 529.1 The complaint prayed for injunctive relief, compensatory and punitive damages, and recovery of litigation expenses, including reasonable attorney's fees. At the hearing on Kerr's motion for a preliminary injunction, counsel for defendant Guild assured the court that the Guild would take no further action to interfere with Kerr's union membership rights. The court thereupon ordered the action dismissed as moot, except for the issue of an award of litigation expenses to plaintiff. At a later hearing on the reserved issue, an award of litigation expenses was denied on the ground that Sec. 412 did not expressly authorize such an award. The district court also said that even if it were to construe the statute as permitting such an award, it would exercise its discretion to disallow litigation expenses.

In his complaint Kerr asked not only for an injunction but also for damages for past infringements and for litigation expenses. Counsel's assurances that no further interference with Kerr's rights would occur permitted the court to exercise its discretion to refuse injunctive relief. United States v.W.T. Grant Co., 1953, 345 U.S. 629, 633, 73 S. Ct. 894, 97 L. Ed. 1303; Walling v. Youngerman-Reynolds Hardwood Co., 1945, 325 U.S. 419, 421, 65 S. Ct. 1242, 89 L. Ed. 1705. However, that did not render the case moot, for the issue of damages and litigation expenses remained. Yablonski v. United Mine Workers of America, D.C.Cir., 1972, 459 F.2d 1201. On remand the court must determine whether defendants violated the provisions of Title I of the Act and, if so, what damages Kerr is entitled to recover. See International Brotherhood of Boilermakers, etc. v. Rafferty, 9 Cir., 1965, 348 F.2d 307, 314-315; Salzhandler v. Caputo, 2 Cir., 1963, 316 F.2d 445, 451; International Brotherhood of Boilermakers, etc. v. Braswell, 5 Cir., 1968, 388 F.2d 193, 199-200 (exemplary damages).

The trial court interpreted 29 U.S.C. Sec. 412 as not permitting recovery of attorney's fees. We have not had occasion to decide whether attorney's fees are recoverable in an action brought under Sec. 412. Those courts which have considered the issue are in conflict. After carefully examining the language and legislative history of Title I and relevant legislative policy considerations, we conclude that the Act permits the recovery of litigation expenses, including reasonable attorney's fees, in suits brought pursuant to 29 U.S.C. Secs. 412 and 529.

The problem was fully explored by the Third Circuit in Gartner v. Soloner, 3 Cir., 1967, 384 F.2d 348, cert. denied, 390 U.S. 1040, 88 S. Ct. 1633, 20 L. Ed. 2d 302. We agree with the reasoning of the court in that case which held that litigation expenses, including attorney's fees, are recoverable in such cases as this. We resist the temptation to examine the problem all over again. The Third Circuit's reasoning is sufficient.2

Although the trial court expressed the view that, if it had the power to award litigation expenses, it would exercise its discretion to deny them here, we think that Kerr is entitled to reconsideration of the issue on remand. Because the court was convinced that Sec. 412 deprived it of the power to grant litigation expenses, it may not have given adequate attention to the equitable considerations which determine whether such an award should be made or not. For example, the court refused to permit plaintiff's attorney to prove that defendant had acted with malice, a factor which it might have considered important, both on the issue of exemplary damages and on the issue of expenses, including attorney's fees, had it realized that it was empowered to make the award. On remand the district court will exercise its discretion and determine whether Kerr is entitled to recover his litigation expenses. In so doing, the court should take into account the fact that it was only after this action was brought that the defendant decided to stop the conduct complained of. In that sense, the action was effective in procuring relief, even though no injunction was issued.

Reversed and remanded.

Judge MURPHY dissents from Part 2 of the foregoing opinion for the reasons stated by Judge Nealon in his dissenting opinion in Gartner v. Soloner, 3 Cir., 1967, 384 F.2d 384, 356-357.