In federal cases alleging discrimination, harassment, retaliation, and violations of civil rights, it is long settled that defendants may recover only when the plaintiff's claims are "frivolous, unreasonable or without foundation." What about when some of the claims are frivolous?
The Supreme Court answered that question, unanimously, with Justice Kagan writing the opinion:
Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.
The court then went on to hold that if the defendant spends fees on issues that deal with both frivolous and nonfrivolous claims simultaneously, the defendant may not recover fees. Justice Kagan wrote, “but if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff…The basic American Rule thus continues to operate.”
Thus, the Supreme Court unanimously made sure that defendants will have a tough time recovering fees in cases including both frivolos and non-frivolous claims.
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