holding that the bad-faith exception for “actions that led to the lawsuit” does not “allow an award of attorney fees based only on bad faith in the conduct giving rise to the underlying claim”
How later courts described this case
- holding that the bad-faith exception for “actions that led to the lawsuit” does not “allow an award of attorney fees based only on bad faith in the conduct giving rise to the underlying claim”
- holding that “[t]he effect of a fee award based on bad faith in the initial wrongdoing would be to punish that conduct,” which would not be permissible under the American Rule
- stating that courts should take care to distinguish between the defendant’s bad faith in maintaining the action from the acts that gave rise to the action
- noting that the “rationale behind the American Rule remains intact when there is bad faith in the event underlying the substantive claim.”
Written by the judges who cited it.
Later courts went against this
Declined to follow by Erkins v. Bryan, 785 F.2d 1538 (1986)
We decline to apply Shimman to this case.
The opinion
GEORGE CLIFTON EDWARDS, Jr., Circuit Judge,
concurring.
I concur in the result set forth in the en banc majority opinion and in the opinion to *1239 the extent that it relies on the following two reasons: 1) this Court remanded this ease to the District Court in Shimman v. Frank, 625 F.2d 80 (6th Cir.1980) (after modifying and affirming the District Court judgment) specifically ordering “each side will bear its own costs.” There is no justification in this record for the District Court faced with this instruction to order Defendants to pay Plaintiffs attorney’s fees. 2) The award of attorney’s fees in this case is also barred by Alyeska Pipeline Services Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), since Plaintiffs fee claims do not fit within any of the exceptions to the American Rule recognized in Alyeska.