Jerry and Patricia A. Dixon, et al. - Page 20

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          statute which permits a prevailing party in certain classes of              
          litigation to recover fees”, Chambers v. NASCO, Inc., 501 U.S.              
          32, 52 (1991), and (2) fee awards (such as those under Rule 11,             
          the bad faith exception, or section 6673(a)(2)) that serve as               
          sanctions, the imposition of which “depends not on which party              
          wins the lawsuit, but on how the parties conduct themselves                 
          during the litigation”, Chambers v. NASCO, Inc., supra at 53                
          (drawing the distinction in the context of the Erie doctrine as             
          applied to the bad faith exception).  See also Bus. Guides, Inc.            
          v. Chromatic Commcns. Enters., Inc., 498 U.S. 533, 553 (1991)               
          (Rule 11 sanctions, which “are not tied to the outcome of [the]             
          litigation”, “do not constitute the kind of fee shifting at issue           
          in Alyeska [Pipeline Serv. Co. v. Wilderness Socy., 421 U.S. 240            
          (1975)].”18  In Cooter & Gell v. Hartmarx Corp., supra at 409,              
          the Supreme Court expressly recognized this distinction in the              
          context of appellate fees:  “As Rule 11 is not a fee-shifting               
          statute, the policies for allowing district courts to require the           
          losing party to pay appellate, as well as District Court                    
          attorney’s fees, are not applicable.”                                       

          18 The “kind of fee shifting at issue in Alyeska” involved                  
          the substantive policy of encouraging private parties “to bring             
          suit to further broad public interests” such as protecting the              
          environment, i.e., under the “private attorney general” theory.             
          Wilderness Socy. v. Morton, 495 F.2d 1026, 1034 (D.C. Cir. 1974),           
          revd. sub nom. Alyeska Pipeline Serv. Co. v. Wilderness Socy.,              
          421 U.S. 240 (1975).                                                        

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