Goodyear Tire & Rubber Co. v. Haeger

(Slip Opinion) OCTOBER TERM, 2016 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

GOODYEAR TIRE & RUBBER CO. v. HAEGER ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 15–1406. Argued January 10, 2017—Decided April 18, 2017

Respondents Leroy, Donna, Barry, and Suzanne Haeger sued petitioner

Goodyear Tire & Rubber Company, alleging that the failure of a

Goodyear G159 tire caused the family’s motorhome to swerve off the

road and flip over. After several years of contentious discovery,

marked by Goodyear’s slow response to repeated requests for internal

G159 test results, the parties settled the case. Some months later,

the Haegers’ lawyer learned that, in another lawsuit involving the

G159, Goodyear had disclosed test results indicating that the tire got

unusually hot at highway speeds. In subsequent correspondence,

Goodyear conceded withholding the information from the Haegers,

even though they had requested all testing data. The Haegers then

sought sanctions for discovery fraud, urging that Goodyear’s miscon-

duct entitled them to attorney’s fees and costs expended in the litiga-

tion.

The District Court found that Goodyear had engaged in an extend-

ed course of misconduct. Exercising its inherent power to sanction

bad-faith behavior, the court awarded the Haegers $2.7 million—the

entire sum they had spent in legal fees and costs since the moment,

early in the litigation, when Goodyear made its first dishonest dis-

covery response. The court said that in the usual case, sanctions or-

dered pursuant to a court’s inherent power to sanction litigation mis-

conduct must be limited to the amount of legal fees caused by that

misconduct. But it determined that in cases of particularly egregious

behavior, a court can award a party all of the attorney’s fees incurred

in a case, without any need to find a “causal link between [the ex-

penses and] the sanctionable conduct.” 906 F. Supp. 2d 938, 975. As

further support for its award, the District Court concluded that full

and timely disclosure of the test results would likely have led Good-

2 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Syllabus

year to settle the case much earlier. Acknowledging that the Ninth

Circuit might require a link between the misconduct and the harm

caused, however, the court also made a contingent award of $2 mil-

lion. That smaller amount, designed to take effect if the Ninth Cir-

cuit reversed the larger award, deducted $700,000 in fees the Hae-

gers incurred in developing claims against other defendants and

proving their own medical damages. The Ninth Circuit affirmed the

full $2.7 million award, concluding that the District Court had

properly awarded the Haegers all the fees they incurred during the

time when Goodyear was acting in bad faith.

Held: When a federal court exercises its inherent authority to sanction

bad-faith conduct by ordering a litigant to pay the other side’s legal

fees, the award is limited to the fees the innocent party incurred sole-

ly because of the misconduct—or put another way, to the fees that

party would not have incurred but for the bad faith. Pp. 5–13.

(a) Federal courts possess certain inherent powers, including “the

ability to fashion an appropriate sanction for conduct which abuses

the judicial process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45.

One permissible sanction is an assessment of attorney’s fees against

a party that acts in bad faith. Such a sanction must be compensato-

ry, rather than punitive, when imposed pursuant to civil procedures.

See Mine Workers v. Bagwell, 512 U. S. 821, 826–830. A sanction

counts as compensatory only if it is “calibrate[d] to [the] damages

caused by” the bad-faith acts on which it is based. Id., at 834. Hence

the need for a court to establish a causal link between the litigant’s

misbehavior and legal fees paid by the opposing party. That kind of

causal connection is appropriately framed as a but-for test, meaning

a court may award only those fees that the innocent party would not

have incurred in the absence of litigation misconduct. That standard

generally demands that a district court assess and allocate specific

litigation expenses—yet still allows it to exercise discretion and

judgment. Fox v. Vice, 563 U. S. 826, 836. And in exceptional cases,

that standard allows a court to avoid segregating individual expense

items by shifting all of a party’s fees, from either the start or some

midpoint of a suit. Pp. 5–9.

(b) Here, the parties largely agree about the pertinent law but dis-

pute what it means for this case. Goodyear contends that it requires

throwing out the fee award and instructing the trial court to consider

the matter anew. The Haegers maintain, to the contrary, that the

award can stand because both courts below articulated and applied

the appropriate but-for causation standard, or, even if they did not,

the fee award in fact passes a but-for test.

The Haegers’ defense of the lower courts’ reasoning is a non-

starter: Neither court used the correct legal standard. The District

Cite as: 581 U. S. ____ (2017) 3

Syllabus

Court specifically disclaimed the need for a causal link on the ground

that this was a “truly egregious” case. 906 F. Supp. 2d, at 975. And

the Ninth Circuit found that the trial court could grant all attorney’s

fees incurred “during the time when [Goodyear was] acting in bad

faith,” 813 F. 3d 1233, 1249—a temporal, not causal, limitation. A

sanctioning court must determine which fees were incurred because

of, and solely because of, the misconduct at issue, and no such finding

lies behind the $2.7 million award made and affirmed below. Nor is

this Court inclined to fill in the gap, as the Haegers urge. As an ini-

tial matter, the Haegers have not shown that this litigation would

have settled as soon as Goodyear divulged the heat-test results (a

showing that would justify an all-fees award from the moment Good-

year was supposed to disclose). Further, they cannot demonstrate

that Goodyear’s non-disclosure so permeated the suit as to make that

misconduct a but-for cause of every subsequent legal expense, total-

ing the full $2.7 million.

Although the District Court considered causation in arriving at its

back-up award of $2 million, it is unclear whether its understanding

of that requirement corresponds to the appropriate standard—an un-

certainty pointing toward throwing out the fee award and instructing

the trial court to consider the matter anew. However, the Haegers

contend that Goodyear has waived any ability to challenge the con-

tingent award since the $2 million sum reflects Goodyear’s own sub-

mission that only about $700,000 of the fees sought would have been

incurred regardless of the company’s behavior. The Court of Appeals

did not address that issue, and this Court declines to decide it in the

first instance. The possibility of waiver should therefore be the ini-

tial order of business on remand. Pp. 9–13.

813 F. 3d 1233, reversed and remanded.

KAGAN, J., delivered the opinion of the Court, in which all other

Members joined, except GORSUCH, J., who took no part in the considera-

tion or decision of the case.

Cite as: 581 U. S. ____ (2017) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–1406

_________________

GOODYEAR TIRE & RUBBER COMPANY,

PETITIONER v. LEROY HAEGER, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[April 18, 2017]

JUSTICE KAGAN delivered the opinion of the Court.

In this case, we consider a federal court’s inherent au-

thority to sanction a litigant for bad-faith conduct by

ordering it to pay the other side’s legal fees. We hold that

such an order is limited to the fees the innocent party

incurred solely because of the misconduct—or put another

way, to the fees that party would not have incurred but for

the bad faith. A district court has broad discretion to

calculate fee awards under that standard. But because

the court here granted legal fees beyond those resulting

from the litigation misconduct, its award cannot stand.

I

Respondents Leroy, Donna, Barry, and Suzanne Haeger

sued the Goodyear Tire & Rubber Company (among other

defendants) after the family’s motorhome swerved off the

road and flipped over.1 The Haegers alleged that the

——————

1 The additional defendants named in the Haegers’ complaint were

Gulf Stream Coach, the manufacturer of the motorhome, and Spartan

Motors, the manufacturer of the vehicle’s chassis. In the course of the

litigation, the Haegers reached a settlement with Gulf Stream, and the

District Court granted Spartan’s motion for summary judgment.

2 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

failure of a Goodyear G159 tire on the vehicle caused the

accident: Their theory was that the tire was not designed

to withstand the level of heat it generated when used on a

motorhome at highway speeds. Discovery in the case

lasted several years—and itself generated considerable

heat. The Haegers repeatedly asked Goodyear to turn

over internal test results for the G159, but the company’s

responses were both slow in coming and unrevealing in

content. After making the District Court referee some of

their more contentious discovery battles, the parties finally

settled the case (for a still-undisclosed sum) on the eve of

trial.

Some months later, the Haegers’ lawyer learned from a

newspaper article that, in another lawsuit involving the

G159, Goodyear had disclosed a set of test results he had

never seen. That data indicated that the G159 got unusu-

ally hot at speeds of between 55 and 65 miles per hour. In

ensuing correspondence, Goodyear conceded withholding

the information from the Haegers even though they had

requested (both early and often) “all testing data” related

to the G159. Record in No. 2:05–cv–2046 (D Ariz.), Doc.

938, p. 8; see id., Doc. 938–1, at 24, 36; id., Doc. 1044–2,

at 25 (filed under seal). The Haegers accordingly sought

sanctions for discovery fraud, claiming that “Goodyear

knowingly concealed crucial ‘internal heat test’ records

related to the [G159’s] defective design.” Id., Doc. 938,

at 1. That conduct, the Haegers urged, entitled them to

attorney’s fees and costs expended in the litigation. See

id., at 14.

The District Court agreed to make such an award in the

exercise of its inherent power to sanction litigation mis-

conduct.2 The court’s assessment of Goodyear’s actions

——————

2 The court reasoned that no statute or rule enabled it to reach all the

offending behavior. Sanctions under Federal Rule of Civil Procedure

11, the court thought, should not be imposed after final judgment in a

Cite as: 581 U. S. ____ (2017) 3

Opinion of the Court

was harsh (and is not contested here). Goodyear, the court

found, had engaged in a “years-long course” of bad-faith

behavior. 906 F. Supp. 2d 938, 972 (D Ariz. 2012). By

withholding the G159’s test results at every turn, the

company and its lawyers had made “repeated and deliber-

ate attempts to frustrate the resolution of this case on the

merits.” Id., at 971. But because the case had already

settled, the court had limited options. It could not take

the measure it most wished: an “entry of default judg-

ment” against Goodyear. Id., at 972. All it could do for

the Haegers was to order Goodyear to reimburse them for

attorney’s fees and costs paid during the suit.

But that award, in the District Court’s view, could be

comprehensive, covering both expenses that could be

causally tied to Goodyear’s misconduct and those that

could not. The court calculated that the Haegers had

spent $2.7 million in legal fees and costs since the mo-

ment, early in the litigation, when Goodyear made its first

dishonest discovery response. And the court awarded the

Haegers that entire sum. In the “usual[ ]” case, the court

reasoned, “sanctions under a [c]ourt’s inherent power

must be limited to the amount [of legal fees] caused by the

misconduct.” Id., at 974–975 (emphasis deleted). But this

case was not the usual one: Here, “the sanctionable con-

duct r[ose] to a truly egregious level.” Id., at 975. And

when a litigant behaves that badly, the court opined, “all

of the attorneys’ fees incurred in the case [can] be awarded,”

without any need to find a “causal link between [those

expenses and] the sanctionable conduct.” Ibid. As further

support for its decision, the court considered the chances

that full and timely disclosure of the test results would

——————

case. See 906 F. Supp. 2d 938, 973, n. 24 (D Ariz. 2012). And sanctions

under 28 U. S. C. §1927, it noted, could address the wrongdoing of only

Goodyear’s attorneys, rather than of Goodyear itself. See 906 F. Supp.

2d, at 973.

4 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

have affected Goodyear’s settlement calculus. “While

there is some uncertainty,” the court stated, “the case

more likely than not would have settled much earlier.”

Id., at 972.

Perhaps sensing thin ice, the District Court also made a

“contingent award” in the event that the Court of Appeals

reversed its preferred one. App. to Pet. for Cert. 180a.

Here, the District Court recognized the possibility that a

“linkage between [Goodyear’s] misconduct and [the Hae-

gers’] harm is required.” Ibid. If so, the court stated, its

fee award should be reduced to $2 million. The deduction

of $700,000, which was based on estimates Goodyear

offered, represented fees that the Haegers incurred in

developing claims against other defendants and proving

their own medical damages. See App. 69.

A divided Ninth Circuit panel affirmed the full $2.7

million award. According to the majority, the District

Court acted properly in “award[ing] the amount [it] rea-

sonably believed” the Haegers expended in attorney’s fees

and costs “during the time when [Goodyear was] acting in

bad faith.” 813 F. 3d 1233, 1250 (2016). Or repeated in

just slightly different words: The District Court “did not

abuse its discretion” in “award[ing] the Haegers all their

attorneys’ fees and costs in prosecuting the action once

[Goodyear] began flouting [its] discovery obligations.” Id.,

at 1249. Judge Watford disagreed. He would have de-

manded a “causal link between Goodyear’s misconduct

and the fees awarded.” Id., at 1255 (dissenting opinion).

The only part of the District Court’s opinion that might

support such a connection, Judge Watford noted, was its

hypothesis that disclosure of the test results would have

produced an earlier settlement, and thus obviated the

need for further legal expenses. But Judge Watford

thought that theory unpersuasive: Because Goodyear

would still have had plausible defenses to the Haegers’

suit, “[i]t’s anyone’s guess how the litigation would have

Cite as: 581 U. S. ____ (2017) 5

Opinion of the Court

proceeded” had timely disclosure occurred. Ibid. Accord-

ingly, Judge Watford would have reversed the District

Court for awarding fees beyond those “sustained as a

result of Goodyear’s misconduct.” Id., at 1256.

The Court of Appeals’ decision created a split of authority:

Other Circuits have insisted on limiting sanctions like this

one to fees or costs that are causally related to a litigant’s

misconduct.3 We therefore granted certiorari. 579 U. S.

___ (2016).

II

Federal courts possess certain “inherent powers,” not

conferred by rule or statute, “to manage their own affairs

so as to achieve the orderly and expeditious disposition of

cases.” Link v. Wabash R. Co., 370 U. S. 626, 630–631

(1962). That authority includes “the ability to fashion an

appropriate sanction for conduct which abuses the judicial

process.” Chambers v. NASCO, Inc., 501 U. S. 32, 44–45

(1991). And one permissible sanction is an “assessment of

attorney’s fees”—an order, like the one issued here, in-

structing a party that has acted in bad faith to reimburse

legal fees and costs incurred by the other side. Id., at 45.

This Court has made clear that such a sanction, when

imposed pursuant to civil procedures, must be compensa-

tory rather than punitive in nature. See Mine Workers v.

Bagwell, 512 U. S. 821, 826–830 (1994) (distinguishing

compensatory from punitive sanctions and specifying the

procedures needed to impose each kind).4 In other words,

the fee award may go no further than to redress the

——————

3 See, e.g., Plaintiffs’ Baycol Steering Comm. v. Bayer Corp., 419 F. 3d

794, 808 (CA8 2005); Bradley v. American Household, Inc., 378 F. 3d

373, 378 (CA4 2004); United States v. Dowell, 257 F. 3d 694, 699 (CA7

2001).

4 Bagwell also addressed “coercive” sanctions, designed to make a

party comply with a court order. 512 U. S., at 829. That kind of

sanction is not at issue here.

6 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

wronged party “for losses sustained”; it may not impose an

additional amount as punishment for the sanctioned

party’s misbehavior. Id., at 829 (quoting United States v.

Mine Workers, 330 U. S. 258, 304 (1947)). To level that

kind of separate penalty, a court would need to provide

procedural guarantees applicable in criminal cases, such

as a “beyond a reasonable doubt” standard of proof. See

id., at 826, 832–834, 838–839. When (as in this case)

those criminal-type protections are missing, a court’s

shifting of fees is limited to reimbursing the victim.

That means, pretty much by definition, that the court

can shift only those attorney’s fees incurred because of the

misconduct at issue. Compensation for a wrong, after all,

tracks the loss resulting from that wrong. So as we have

previously noted, a sanction counts as compensatory only

if it is “calibrate[d] to [the] damages caused by” the bad-

faith acts on which it is based. Id., at 834. A fee award is

so calibrated if it covers the legal bills that the litigation

abuse occasioned. But if an award extends further than

that—to fees that would have been incurred without the

misconduct—then it crosses the boundary from compensa-

tion to punishment. Hence the need for a court, when

using its inherent sanctioning authority (and civil proce-

dures), to establish a causal link—between the litigant’s

misbehavior and legal fees paid by the opposing party.5

——————

5 Rule-based and statutory sanction regimes similarly require courts

to find such a causal connection before shifting fees. For example, the

Federal Rules of Civil Procedure provide that a district court may order

a party to pay attorney’s fees “caused by” discovery misconduct,

Rule 37(b)(2)(C), or “directly resulting from” misrepresentations in

pleadings, motions, and other papers, Rule 11(c)(4). And under 28

U. S. C. §1927, a court may require an attorney who unreasonably

multiplies proceedings to pay attorney’s fees incurred “because of ” that

misconduct. Those provisions confirm the need to establish a causal

link between misconduct and fees when acting under inherent authority,

given that such undelegated powers should be exercised with especial

“restraint and discretion.” Roadway Express, Inc. v. Piper, 447 U. S.

Cite as: 581 U. S. ____ (2017) 7

Opinion of the Court

That kind of causal connection, as this Court explained

in another attorney’s fees case, is appropriately framed as

a but-for test: The complaining party (here, the Haegers)

may recover “only the portion of his fees that he would not

have paid but for” the misconduct. Fox v. Vice, 563 U. S.

826, 836 (2011); see Paroline v. United States, 572 U. S.

___, ___ (2014) (slip op., at 12) (“The traditional way to

prove that one event was a factual cause of another is to

show that the latter would not have occurred ‘but for’ the

former”). In Fox, a prevailing defendant sought reim-

bursement under a fee-shifting statute for legal expenses

incurred in defending against several frivolous claims.

See 563 U. S., at 830; 42 U. S. C. §1988. The trial court

granted fees for all legal work relating to those claims—

regardless of whether the same work would have been

done (for example, the same depositions taken) to contest

the non-frivolous claims in the suit. We made clear that

was wrong. When a “defendant would have incurred [an]

expense in any event[,] he has suffered no incremental

harm from the frivolous claim,” and so the court lacks a

basis for shifting the expense. Fox, 563 U. S., at 836.

Substitute “discovery abuse” for “frivolous claim” in that

sentence, and the same thing goes in this case. Or other-

wise said (and again borrowing from Fox), when “the cost[ ]

would have been incurred in the absence of ” the discovery

violation, then the court (possessing only the power to

compensate for harm the misconduct has caused) must

leave it alone. Id., at 838.

This but-for causation standard generally demands that

a district court assess and allocate specific litigation ex-

penses—yet still allows it to exercise discretion and judg-

ment. The court’s fundamental job is to determine whether

a given legal fee—say, for taking a deposition or drafting a

motion—would or would not have been incurred in the

——————

752, 764 (1980).

8 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

absence of the sanctioned conduct. The award is then the

sum total of the fees that, except for the misbehavior,

would not have accrued. See id., at 837–838 (providing

illustrative examples). But as we stressed in Fox, trial

courts undertaking that task “need not, and indeed should

not, become green-eyeshade accountants” (or whatever the

contemporary equivalent is). Id., at 838. “The essential

goal” in shifting fees is “to do rough justice, not to achieve

auditing perfection.” Ibid. Accordingly, a district court

“may take into account [its] overall sense of a suit, and

may use estimates in calculating and allocating an attor-

ney’s time.” Ibid. The court may decide, for example,

that all (or a set percentage) of a particular category of

expenses—say, for expert discovery—were incurred solely

because of a litigant’s bad-faith conduct. And such judg-

ments, in light of the trial court’s “superior understanding

of the litigation,” are entitled to substantial deference on

appeal. Hensley v. Eckerhart, 461 U. S. 424, 437 (1983).

In exceptional cases, the but-for standard even permits

a trial court to shift all of a party’s fees, from either the

start or some midpoint of a suit, in one fell swoop. Cham-

bers v. NASCO offers one illustration. There, we approved

such an award because literally everything the defendant

did—“his entire course of conduct” throughout, and indeed

preceding, the litigation—was “part of a sordid scheme” to

defeat a valid claim. 501 U. S., at 51, 57 (brackets omit-

ted). Thus, the district court could reasonably conclude

that all legal expenses in the suit “were caused . . . solely

by [his] fraudulent and brazenly unethical efforts.” Id., at

58. Or to flip the example: If a plaintiff initiates a case in

complete bad faith, so that every cost of defense is at-

tributable only to sanctioned behavior, the court may

again make a blanket award. And similarly, if a court

finds that a lawsuit, absent litigation misconduct, would

have settled at a specific time—for example, when a party

was legally required to disclose evidence fatal to its posi-

Cite as: 581 U. S. ____ (2017) 9

Opinion of the Court

tion—then the court may grant all fees incurred from that

moment on. In each of those scenarios, a court escapes the

grind of segregating individual expense items (a deposi-

tion here, a motion there)—or even categories of such

items (again, like expert discovery)—but only because all

fees in the litigation, or a phase of it, meet the applicable

test: They would not have been incurred except for the

misconduct.

III

It is an oddity of this case that both sides agree with

just about everything said in the last six paragraphs about

the pertinent law. Do legal fees awarded under a court’s

inherent sanctioning authority have to be compensatory

rather than punitive when civil litigation procedures are

used? The Haegers and Goodyear alike say yes. Does that

mean the fees awarded must be causally related to the

sanctioned party’s misconduct? A joint yes on that too.

More specifically, does the appropriate causal test limit

the fees, a la Fox, to those that would not have been in-

curred but for the bad faith? No argument there either.

And in an exceptional case, such as Chambers, could that

test produce an award extending as far as all of the

wronged party’s legal fees? Once again, agreement (if

with differing degrees of enthusiasm). See Brief for Peti-

tioner 17, 23–24, 31; Brief for Respondents 17–18, 22–23;

Tr. of Oral Arg. 34–35, 46–47.

All the parties really argue about here is what that law

means for this case. Goodyear contends that it requires

throwing out the trial court’s fee award and instructing

the court to consider the matter anew. The Haegers main-

tain, to the contrary, that the award can stand. They

initially contend—pointing to a couple of passages from

the Ninth Circuit’s opinion—that both courts below articu-

lated and applied the very but-for causation standard we

have laid out. See Brief for Respondents 17–18 (highlight-

10 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

ing the Ninth Circuit’s statements that Goodyear’s “bad

faith conduct caused significant harm” and that the Dis-

trict Court “determine[d] the appropriate amount of fees to

award as sanctions to compensate the [Haegers] for the

damages they suffered as a result of [Goodyear’s] bad

faith”). And even if we reject that view, the Haegers con-

tinue, we may uphold the fee award on the ground that it

in fact passes a but-for test. That standard is satisfied (so

they say) for either of two reasons. First, because the case

would have settled as soon as Goodyear disclosed the

requested heat-test results, thus putting an end to the

Haegers’ legal bills. Or second, because (settlement pro-

spects aside) the withholding of that data so infected the

lawsuit as to account for each and every expense the Hae-

gers subsequently incurred. See id., at 14–15, 22, 26.

The Haegers’ defense of the lower courts’ reasoning is a

non-starter: Neither of them used the correct legal stand-

ard. As earlier recounted, the District Court specifically

disclaimed the “usual[ ]” need to find a “causal link” be-

tween misconduct and fees when the sanctioned party’s

behavior was bad enough—in the court’s words, when it

“r[ose] to a truly egregious level.” 906 F. Supp. 2d, at 975

(emphasis deleted); see supra, at 3. In such circumstances,

the court thought, it could award “all” fees, including those

that would have been incurred in the absence of the mis-

conduct. 906 F. Supp. 2d, at 975. And the court confirmed

that approach even while conceding that it might be

wrong: By issuing a “contingent award” of $2 million,

meant to go into effect if the Ninth Circuit demanded a

causal “linkage between the misconduct and harm,” the

District Court made clear that its primary, $2.7 million

award was not so confined. App. to Pet. for Cert. 180a; see

supra, at 4. Still, the Court of Appeals left the larger

sanction in place, because it too mistook what findings

were needed to support that award. In the Ninth Circuit’s

view, the trial court could grant all attorney’s fees in-

Cite as: 581 U. S. ____ (2017) 11

Opinion of the Court

curred “during the time when [Goodyear was] acting in

bad faith.” 813 F. 3d, at 1250 (emphasis added); see id., at

1249 (permitting an award of fees incurred “once [Good-

year] began flouting [its] discovery obligations” (emphasis

added)); supra, at 4. But that is a temporal limitation, not

a causal one; and, like the District Court’s “egregiousness”

requirement, it is wide of the mark. A sanctioning court

must determine which fees were incurred because of, and

solely because of, the misconduct at issue (however seri-

ous, or concurrent with a lawyer’s work, it might have

been). No such finding lies behind the $2.7 million award

made and affirmed below.

Nor are we tempted to fill in that gap, as the Haegers

have invited us to do. As an initial matter, the Haegers

have not shown that this litigation would have settled as

soon as Goodyear divulged the heat-test results (thus

justifying an all-fees award from the moment it was sup-

posed to disclose, see supra, at 8–9). Even the District

Court did not go quite that far: In attempting to buttress

its comprehensive award, it said only (and after express-

ing “some uncertainty”) that the suit probably would have

settled “much earlier.” 906 F. Supp. 2d, at 972. And that

more limited finding is itself subject to grave doubt, even

taking into account the deference owed to the trial court.

As Judge Watford reasoned, the test results, although

favorable to the Haegers’ version of events, did not deprive

Goodyear of colorable defenses. In particular, Goodyear

still could have argued, as it had from the beginning, that

“the Haegers’ own tire, which had endured more than

40,000 miles of wear and tear, failed because it struck

road debris.” 813 F. 3d, at 1256 (dissenting opinion). And

indeed, that is pretty much the course Goodyear took in

another suit alleging that the G159 caused a motorhome

accident. See Schalmo v. Goodyear, No. 51–2006–CA–

2064–WS (Fla. Cir. Ct., 6th Cir., Pasco County). In that

case (as Judge Watford again observed), Goodyear pro-

12 GOODYEAR TIRE & RUBBER CO. v. HAEGER

Opinion of the Court

duced the very test results at issue here, yet still elected to

go to trial. See 813 F. 3d, at 1256. So we do not think the

record allows a finding, as would support the $2.7 million

award, that disclosure of the heat-test results would have

led straightaway to a settlement.

Further, the Haegers cannot demonstrate that Good-

year’s non-disclosure so permeated the suit as to make

that misconduct a but-for cause of every subsequent legal

expense, totaling the full $2.7 million. If nothing else, the

District Court’s back-up fee award belies that theory.

After introducing a causal element into the equation, the

court found that the $700,000 of fees that the Haegers

incurred in litigating against other defendants and prov-

ing their own medical damages had nothing to do with

Goodyear’s discovery decisions. See App. to Pet. for Cert.

180a; supra, at 4. The Haegers have failed to offer

any concrete reason for questioning that judgment, and we

do not see how they could. At a minimum, then, the sanc-

tion order could not force Goodyear to reimburse those

expenses—because, again, the Haegers would have paid

them even had the company behaved immaculately in

every respect.

That leaves the question whether the contingent $2

million award should now stand—or, alternatively,

whether the District Court must reconsider from scratch

which fees to shift. In the absence of any waiver issue, we

would insist on the latter course. Although the District

Court considered causation in arriving at its back-up

award, we cannot tell from its sparse discussion whether

its understanding of that requirement corresponds to the

standard we have described. That uncertainty points

toward demanding a do-over, under the unequivocally

right legal rules. But the Haegers contend that Goodyear

has waived any ability to challenge the $2 million award.

In their view, that sum reflected Goodyear’s own submis-

sion—which it may not now amend—that only about

Cite as: 581 U. S. ____ (2017) 13

Opinion of the Court

$700,000 of the fees sought would have been incurred

“regardless of Goodyear’s behavior.” App. 69; see Brief for

Respondents 41; supra, at 4. The Court of Appeals did not

previously address that issue, and we decline to decide it

in the first instance. See Cutter v. Wilkinson, 544 U. S.

709, 718, n. 7 (2005) (“[W]e are a court of review, not of

first view”). The possibility of waiver should therefore be

the initial order of business below. If a waiver is found,

that is the end of this case. If not, the District Court must

reassess fees in line with a but-for causation requirement.

For these reasons, we reverse the judgment of the Court

of Appeals and remand the case for further proceedings

consistent with this opinion.

It is so ordered.

JUSTICE GORSUCH took no part in the consideration or

decision of this case.