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Federal law generally permits a plaintiff who successfully pursues a civil rights claim to recover his or her attorneys’ fees.  A successful defendant, however, is typically only entitled to recover its attorneys’ fees if the complainant claims are determined to be absurd.  In this context, “frivolous” means without legal or factual basis.  A claim that has some legal and factual basis, but that does not succeed, is not frivolous.

The United States Supreme Court recently issued an opinion providing guidance to the trial courts for cases in which only some of the complainant demands are not having  legal basis .  In Fox v. Vice, the court analyzed the various options in such cases.  The court rejected a standard that purported to award a defendant fees “fairly attributable” to the plaintiff’s frivolous claims.  The court found that standard to be too amorphous.

Instead, the court ruled that the appropriate standard is to award the defendant the attorneys’ fees it would not have incurred “but for” the frivolous claims.  The court stated that this amount could be measured by the extra time spent on the lawsuit, by the increased expense (if any) litigating in federal court, and by the higher rates that might be charged by an attorney specializing in civil rights litigation.  The court reasoned that the “but for” standard provided a sufficiently clear standard to fairly award a defendant its attorneys’ fees incurred in fighting frivolous civil rights claims, even if not all of the plaintiff’s demands are absurd.