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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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