Justice Kagan Delivers Unanimous Opinion For The Court.
In Fox v. Vice, Case No. 10-114 (U.S. June 6, 2011), a unanimous U.S. Supreme Court decided that a “but-for” standard applies when determining whether a prevailing defendant should recover attorney’s fees under 42 U.S.C. § 1988 in a plaintiff’s suit involving both frivolous and non-frivolous claims. It ruled that section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. “. . . the dispositive question is not whether attorney costs at all relate to a non-frivolous claim, but whether the costs would have been incurred in the absence of the frivolous allegation. The answers to those inquiries will usually track each other, but when they diverge, it is the second that matters.” (Slip Opn., pp. 10-11.) As a result, the district court’s use of a mere “focus” test was reversed, vacating a $48,681 fee award against plaintiff admitting federal civil rights claims were not valid.
Justice Kagan authored the decision. Here is one of our favorite colorable passages from Fox:
“In Hollywood, litigation most often concludes with a dramatic verdict that leaves one party fully triumphant and the other utterly prostrate. The court in such a case would know exactly how to award fees (even if that anti-climactic scene is generally left on the cutting-room floor). But in the real world, litigation is more complex, involving multiple claims for relief that implicate a mix of legal theories and have different merits. Some claims succeed; others fail. Some charges are frivolous; others (even if not ultimately successful) have a reasonable basis. In short, litigation is messy, and courts must deal with this untidiness in awarding fees.” (Slip Opn, p. 6.)
Supreme Court Justices’ wives attend breakfast in honor of Mrs. Roosevelt. 1938.