Dividing Attorneys' Fees Pro Rata by Number of Claims May Not be Sufficient

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In Harris v. Maricopa Count Superior Court, the Ninth Circuit remanded an attorneys' fee award back to the District Court when defendants and the lower court allocated fees to the prevailing defendant by determining which claims carried the right to fees to the prevailing defendant, and then using a pro rata approach to divide some of the fees by the number of claims. The majority opinion held that this was improper.

Judge Bybee's dissent strikes to the heart of the matter. Does the "new rule" from the majority render a defendant's ability to recovery attorneys' fees almost impossible?

Vernon Harris brought a civil rights action against the Superior Court of Maricopa County alleging gender and race discrimination as well as state law claims of breach of contract and defamation. Harris' claims were ultimately dismissed when defendant's pre-trial summary adjudication motions were granted.

The court held it improper to allocate the general fees across the ten claims and then determining one-tenth of the fees were incurred for each claim...

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