The new math...
The 9th Circuit, in an unpublished decision, was forced to face the argument that partial sanctions in the amount of the attorney fees incurred for defending a frivolous argument, should not be awarded unless the court finds that frivolous arguments predominated over nonfrivolous ones.
If I understand the argument - if you make 10 arguments and 6 are not frivolous but 4 are, you should not get sanctioned. However what happens if it is a tie? Is it a push? Should you get sanctioned more based upon the percentage...so for instance, if 8 out of 10 are frivolous, any sanction should only be 80% rather than 100%. Of course, that would mean that 2 out of 10 should only be 20%. Perhaps, the Court should have a curve?
In any scenario, the Court found that there was no authority cited for the appellants proposition regarding frivolous vs. nonfrivolous and appeared to ignore the issue. (I digress for a moment, so was that argument then frivolous?) However, the Court did find that one of the arguments made in the lower court was not frivolous and therefore remanded the case back to the district court for a recalculation of sanctions.
So, the lower court now needs to calculate how much of the sanction should be reduced based upon the one argument not being frivolous. Wait a moment, I thought there was no authority on this...so whats the score on frivolous vs. nonfrivolous in this case? How much should it be reduced? The Court did not give any instruction on how to re-calculate the sanctions, but did remand for such recalculation.
I'm thinking we need experts on this case to calculate the reduction in the sanction. I will have to ask my kids to calculate this one.
New Math...the New Frontier
Southern Cal. Sunbelt Developers - 1-27-11 - 9th Circuit
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