Posted on 07/30/2018 7:05:43 AM PDT by Jagermonster
Actual Title -- Nantkwest, Inc. v. Iancu
This is an except because it is too long to post in its entirety.
As its name suggests, the American Rule is a “bedrock principle” of this country’s jurisprudence. Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 253 (2010). It provides that, in the United States, “[e]ach litigant pays his own attorney’s fees, win or lose.” Baker Botts L.L.P. v. ASARCO LLC, 135 S. Ct. 2158, 2164 (2015) (quoting Hardt, 560 U.S. at 253). The American Rule may only be displaced by an express grant from Congress. Id. And it serves as the “basic point of reference” whenever a court “consider[s] the award of attorney’s fees.” Id. (quoting Hardt, 560 U.S. at 252–53).
The rationale supporting the American Rule is rooted in fair access to the legal system, as well as the difficulty of litigating the fee question:
[S]ince litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and . . . the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel. Also, the time, expense, and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney’s fees would pose substantial burdens for judicial administration.Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718 (1967) (citations omitted). In the context of this case, the American Rule preserves access to district courts for small businesses and individual inventors seeking to avail themselves of § 145’s benefits.
The American Rule traces its origins back to at least the late 1700s. In Arcambel v. Wiseman, the circuit court included $1,600 in counsel’s fees as part of the damages. 3 U.S. (3 Dall.) 306, 306 (1796). The assessment of attorneys’ fees, the Supreme Court concluded, could not be allowed because the “general practice of the United States is in opposition to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.” Id. “[O]ur courts have generally resisted any movement” toward the English system—which permits the award of attorneys’ fees to successful parties in litigation—ever since.2 Fleischmann, 386 U.S. at 717; see Runyon v. McCrary, 427 U.S. 160, 185 (1976) (“[T]he law of the United States . . . has always been that absent explicit congressional authorization, attorneys’ fees are not a recoverable cost of litigation.”).
Only Congress “has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others.” Alyeska Pipeline, 421 U.S. at 263. Congress has not “extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted.” Id. at 260. Thus, the Supreme Court has held that the American Rule presumptively applies and any statutory deviations from it must be “specific and explicit.” Id. at 260–62, 269.
According to the Supreme Court, one “good example of the clarity . . . required to deviate from the American Rule” can be found in the Equal Access to Justice Act’s attorneys’ fees provision. Baker Botts, 135 S. Ct. at 2164. That provision commands courts to “award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action,” so long as certain conditions are met. Id. at 2164 (emphasis added) (quoting 28 U.S.C. § 2412(d)(1)(A)). As the Supreme Court explained, “there could be little dispute that this provision—which mentions ‘fees,’ a ‘prevailing party,’ and a ‘civil action’—is a ‘fee-shifting statut[e]’ that trumps the American Rule.” Id. (alteration in original).
Not all fee-shifting statutes follow this template though. For example, the Supreme Court has a separate line of precedent “addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the ‘prevailing party.’” Hardt, 560 U.S. at 254. In Hardt, the Court analyzed whether Congress deviated from the American Rule when it passed a statute providing that a “court in its discretion may allow a reasonable attorney’s fee and costs of action to either party.” Id. at 251–52 (quoting 29 U.S.C. § 1132(g)(1)). The same is true in Ruckelshaus v. Sierra Club, where the Court examined a provision of the Clean Air Act allowing a court to “award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such an award is appropriate.” 463 U.S. 680, 682–83 (1983) (emphasis omitted) (quoting 42 U.S.C. § 7607(f)).
And while the American Rule sets a high bar for shifting attorneys’ fees, it does not impose a magic words requirement so long as Congress’s intent is “specific and explicit.” See Summit Valley Indus., Inc. v. Local 112, United Bhd. of Carpenters, 456 U.S. 717, 721–22 (1982). As the Supreme Court acknowledged in Key Tronic Corp. v. United States, “[t]he absence of [a] specific reference to attorney’s fees is not dispositive if the statute otherwise evinces an intent to provide for such fees.” 511 U.S. 809, 815 (1994); see Baker Botts, 135 S. Ct. at 2165 (discussing statute providing for “reasonable compensation for actual, necessary services rendered by” various “professional person[s],” including “attorney[s]” (emphasis omitted) (quoting 11 U.S.C. § 330(a)(1)(A))).
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2. The Supreme Court has carved out several equitable exceptions to further the interests of justice. See F. D. Rich Co. v. U.S. for Use of Indus. Lumber Co., 417 U.S. 116, 129 (1974) (acknowledging availability of attorneys’ fees where party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons”); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426–28 (1923) (allowing attorneys’ fees as part of penalty for willful disobedience of court order); Trustees v. Greenough, 105 U.S. 527, 532–33, 537 (1882) (permitting party recovering fund for the benefit of himself and others to seek attorneys’ fees from the fund itself or directly from other parties who enjoyed the benefit); see generally Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 257– 59 (1975). None of these exceptions are implicated here.
This already is the rule - https://www.professionalliabilityadvocate.com/2016/07/the-punishing-effect-of-rule-11/
Under lose pays any well-heeled person or organization becomes unchallenged lord of the manor.
True, was just trying to ‘point out’ that the taxpayer takes it in the shorts anyway....
Say a mugger attacks you downtown and you shoot him.
He doesn’t die so WE get to pay his medical, get to pay for his lawyer, get to pay judge and prosecutors, get to pay his incarceration and if he or family sue ‘US’ for getting shot, WE get to pay OUR lawyer, HIS lawyer and pay investigators to build up a case against us.
I know it isn’t supposed to be ‘fair’, how about just somewhat equal??? <: <: <:
I gaveup TV in 2000 when I moved to Idaho. No time for that nonsense. I still have a TV...4k, 3D, 7.1 sound system. It exists to play DVD/Bluray/4K as time is available. A couple hours each month.
Sen. Ted Stevens is the case that should be the example used as to why the system needs to be changed. Yes, any frivolous filing needs to result in sanctioning of the attorneys, and even consider bar disciplinary actions against them. However, who decides? A liberal judge? Perhaps a crowdsourcing app can be used to put this question to the citizens, but this introduces a whole other set of issues.
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