Attorney's fees

AuthorAaron B. Maduff
§18.1.1 WHAT AND WHY
Usually, unless the case is totally frivolous, the task of responding to the fee petition will be one for the
§ Title VII Fee-Shifting Provisions
Title VII is a fee-shifting statute which provides that the prevailing party may recover its attorney’s fees from
the losing party. 42 U.S.C. §2000e-5(k). Title VII states that “the court, in its discretion, may allow the prevailing
party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs. …” Id. Many
state employment discrimination statutes also contain fee-shifting provisions like those in Title VII.
§ Fees Usually Shift to Plaintiff
defendant-employer prevails in the litigation, there is little chance of recovering attorney’s fees. Christianburg Garment
Co. v. EEOC, 434 U.S. 412 (1978); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). Winning a verdict or
unreasonable, or without foundation.” See Christianburg Garment at 421. See also Lezama v. Clark County,
Nevada, 2020 WL 2950670 (9th Cir., June 3, 2020); Providence Behavioral Health v. Grant Road Public Utility
District, 902 F.3d 448, 460 (5th Cir. 2018); Peeples v. City of Detroit, 891 F.3d 622, 639 (6th Cir. 2018). The same
brought pursuant to 42 U.S.C. §1983. See e.g. Carter v. Incorporated Village of Ocean Beach, 759 F.3d 159, 163
(2nd Cir. 2014); Scoggins v. Lee’s Crossing Homeowners Association, 718 F.3d 262, 275 (4th Cir. 2013). Although
there is a “heightened standard,” fees can be awarded where a party acts unreasonably in initiating the litigation.
See EEOC v. Propak Logistics, Inc., 746 F.3d 145 (4th Cir. 2014). This heightened standard means that even if a
case is dismissed on the pleadings, that fact alone does not entitle a defendant to attorney’s fees. Green v. City of
, 764 Fed. Appx. 548 (6th Cir. 2019).
and, hence, entitled to an award of reasonable attorney’s fees and costs. Farrar v. Hobby, 506 U.S. 103 (1992);
Brandau v. Kansas, 168 F.3d 1179 (10th Cir. 1999); Koopman v. Water District No. 1, 41 F.3d 1417 (10th Cir. 1994).
 
fees based on nominal recovery because while he was awarded injunctive relief, he did not prove discrimination.).
§18.1.2 WHEN
§18.1.3 HOW
§ Review Fee Petition and Time Records
Practice Note: Compromise with opposing counsel, if possible
Consider trying to reach a compromise solution on the fee petition with opposing counsel. Review Form
50 (Document Request to Defendant). After having now lost a trial, do you really want to send this doc-
ument to your client, who is probably not in the best of moods anyway? “In general, a prevailing party is
entitled to attorney’s fees for the time spent preparing the fee petition.” , 2020
    

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