Defendants that prevail in certain discrimination cases are entitled to attorney fee awards, against their opposing plaintiffs, under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. § 1988(b), when the plaintiffs' claims are determined to be "frivolous, unreasonable, or without foundation."  But what if both frivolous and non-frivolous claims are asserted by a plaintiff?  In Fox v. Vice, --- U.S. ---, No. 10-114 (June 6, 2011), the U.S. Supreme Court eliminated the conflicting approaches of the courts of appeals in such situations, holding that - in such a case - the prevailing defendant should be awarded the fees it would not have incurred but for the frivolous claims.  This simple ruling belies some surprising applications, as described by the unanimous Court.

In Fox, the winner in a campaign for police chief sued his defeated opponent for alleged dirty tricks, under both federal and state law theories.  After discovery, the defendant moved for summary judgment and requested all of his attorney fees, as to all the claims.  The plaintiff conceded his federal claims were not valid.  The district court granted the summary judgment motion as to the federal claims, sent the remaining state law claims to state court, found the federal claims to be "frivolous," and awarded the defendant 100 percent of his fees in the case.  The winning defendant was not required to, and did not attempt to, allocate his attorney fees among the frivolous and non-frivolous claims.  The Fifth Circuit affirmed this approach.  

The Supreme Court disapproved of this approach, ruling that the prevailing defendant should recover reasonable attorney fees "incurred because of, but only because of, a frivolous claim."  Alternatively, the Court said the Civil Rights Attorney's Fees Awards Act permits the defendant "to receive only the portion of his fees that he would not have paid but for the frivolous claim."

But an attorney's work cannot always be subdivided and sorted into "frivolous" and "non-frivolous" boxes, particularly when the work applies to both types of claims.  Indeed, in Fox, the district court noted that much of the defense attorney's work on the frivolous claims could be useful in the state court proceedings.  The Supreme Court ruled that, if the frivolous claims do not result in added expense for the defendant, there is no fee award.  If a defendant incurs expenses defending against frivolous claims that would have been incurred to defend against non-frivolous claims - as if the frivolous claims had never been brought - "a court has no basis for transferring the expense to the plaintiff."

Even if a defense attorney's work on frivolous and non-frivolous claims is coextensive, attorney fees may still be awarded to the defendant, based on the Court's helpful examples of applications of its simple ruling.  For instance, if a frivolous claim requires an attorney to do more work than he/she otherwise would have been required to perform, because of the defendant's greater financial exposure on that claim, attorney fees may be awarded.  Likewise, if the unique nature of a frivolous claim compelled the defendant to hire more expensive counsel than it would have otherwise, the defendant may be awarded the extra fees incurred as a result of the fee rate differential.

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