Fox v. Vice Decided

December 29, 2010

Whether a defendant can recover attorney's fees under a federal fee-shifting statute absent a showing that the entire lawsuit is frivolous and, if so, whether the defendant must at least show that any frivolous claims are factually distinct from non-frivolous claims.

Under the fee-shifting regime created by Congress to encourage civil rights suits, plaintiffs can generally recover their attorney's fees if they prevail but defendants can recover their fees only if the lawsuit was frivolous, vexatious or brought for the purpose of harassment. Our amicus brief, submitted along with several other civil rights organizations, endorses this asymmetrical standard. Applying that standard, we argue that defendants are entitled to fees only if the entire lawsuit is frivolous. Alternatively, we argue that defendants are entitled to recover fees for time spent on frivolous claims only if those claims are factually distinct from non-frivolous claims.

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