Factors In Fee-Shifting For Prevailing Defendants

Statutes permitting discretionary attorney fee-shifting for prevailing defendants vary in the circumstances under which fee-shifting is permitted. Two recent cases tackling the question of why and when a lawsuit warrants shifting attorneys' fees from a prevailing defendant to the plaintiff who brought the claim reflect some of these differences. One case focused on "frivolousness" of the lawsuit, and the other imposed a "bad faith" requirement—despite the absence of such language from the relevant statute. The perceived motivation of the respective plaintiffs and purpose behind the statutes under which the claims were brought were influential.

In a recent patent infringement case against Google, EscapeX IP LLC v. Google, the Court agreed with Google's argument that under 35 U.S.C. § 285, attorneys' fees could be awarded in "exceptional cases," which the Supreme Court has further defined to weigh a "totality of circumstances" as to a plaintiff's "frivolousness,