bad faith exception in District of Columbia

2023We have emphasized that the standard for the bad-faith exception is “necessarily stringent,” such that a fee-shifting sanction is “proper only under extraordinary circumstances or when dominating reasons of fairness so demand.” Jumper I, 909 A.2d at 176 -77 (quoting In re Est. of Delaney, 819 A.2d 968 , 998 (D.C. 2003)); accord Synanon, 517 A.2d at 37 (collecting cases).

2023We have emphasized that the standard for the bad-faith exception is “necessarily stringent,” such that a fee-shifting sanction is “proper only under extraordinary circumstances or when dominating reasons of fairness so demand.” Jumper I, 909 A.2d at 176 -77 (quoting In re Est. of Delaney, 819 A.2d 968 , 998 (D.C. 2003)); accord Synanon, 517 A.2d at 37 (collecting cases).

2023See Jung, 844 A.2d at 1112 (“We do not comprehend the bad faith exception to the American rule to allow the trial judge to sanction litigants for bringing colorable claims when they also happen to have other ulterior motives of questionable propriety.”).

2023See Jung, 844 A.2d at 1112 (“We do not comprehend the bad faith exception to the American rule to allow the trial judge to sanction litigants for bringing colorable claims when they also happen to have other ulterior motives of questionable propriety.”).

2009A court nonetheless may infer bad faith in circumstances where “an attorney ... brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous.” Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir.1987) (internal citation omitted); see also Synanon Found,., supra note 4, 517 A.2d at 40 (“A claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.”) (quoting Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980

2003This is because a claim is colorable for purposes of a bad faith analysis when it has " some legal and factual support." Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980) (per curiam) (emphasis added).

1992Under the bad faith exception, we continue to adhere to the proposition that an award of attorney’s fees is reserved for “extraordinary circumstances.” Andrews, 443 A.2d at 569 ; Schlank, supra, 572 A.2d at 108 ; General Fed’n of Women’s Clubs, supra note 1, 537 A.2d at 1128.

1988The bad faith exception “applies only in extraordinary cases.” Launay, 497 A.2d at 450 (citing Andrews v. District of Columbia, 443 A.2d 566, 569 (D.C.), cert. denied, 459 U.S. 909 , 103 S.Ct. 216 , 74 L.Ed. 2d 172 (1982)).

2023We have emphasized that the standard for the bad-faith exception is “necessarily stringent,” such that a fee-shifting sanction is “proper only under extraordinary circumstances or when dominating reasons of fairness so demand.” Jumper I, 909 A.2d at 176 -77 (quoting In re Est. of Delaney, 819 A.2d 968 , 998 (D.C. 2003)); accord Synanon, 517 A.2d at 37 (collecting cases).

2023We have emphasized that the standard for the bad-faith exception is “necessarily stringent,” such that a fee-shifting sanction is “proper only under extraordinary circumstances or when dominating reasons of fairness so demand.” Jumper I, 909 A.2d at 176 -77 (quoting In re Est. of Delaney, 819 A.2d 968 , 998 (D.C. 2003)); accord Synanon, 517 A.2d at 37 (collecting cases).

2009Although courts will ordinarily rely on their inherent power to impose sanctions where conduct cannot be sanctioned adequately under court rules, courts are not "forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under [rules].” Chambers, supra, 501 U.S. at 50 , 111 S.Ct. 2123 ; see In re Estate of Delaney, 819 A.2d 968, 998 (D.C.2003) ("[W]hile a court’s rules may reach only specified conduct, the court's inherent power fills the gaps.”) (internal citation omitted). 4 .In reviewing sanctions under the bad-faith standard,

2009Although courts will ordinarily rely on their inherent power to impose sanctions where conduct cannot be sanctioned adequately under court rules, courts are not "forbidden to sanction bad-faith conduct by means of the inherent power simply because that conduct could also be sanctioned under [rules].” Chambers, supra, 501 U.S. at 50 , 111 S.Ct. 2123 ; see In re Estate of Delaney, 819 A.2d 968, 998 (D.C.2003) ("[W]hile a court’s rules may reach only specified conduct, the court's inherent power fills the gaps.”) (internal citation omitted). 4 .In reviewing sanctions under the bad-faith standard,

2014A fee award for “suit money” would focus on Mr. Wolfe’s need for representation in the divorce proceedings, D.C.Code § 16-911(a)(1); a fee award under the necessaries doctrine would focus on the need for representation in the custody proceedings to protect the best interest of the child, Kenda, 39 A.3d at 1257; and a fee award under the bad-faith exception would focus on those legal expenses arising from any bad-faith litigation engaged in by Ms. Kha-wam, Breezevale Ltd. v. Dickinson, 879 A.2d 957, 968-69 (D.C.2005).

2009See, e.g., Breezevale Ltd. v. Dickinson, 879 A.2d 957, 967 (D.C.2005); Estate of Delaney, supra note 3, 819 A.2d at 998 ; Synanon Found., Inc. v. Bernstein, 517 A.2d 28, 38-39 (D.C.1986). 5 .

2004See id. (quoting Synanon Found., Inc. v. Bernstein, 517 A.2d 28, 37 (D.C.1986)).

1988As stated in Synanon: [T]he court must scrupulously avoid penalizing a party for a legitimate exercise of the right of access to the courts. ‘A party is not to be penalized for maintaining an aggressive litigation posture, nor are good faith assertions of colorable claims or defenses to be discouraged.’ Id. at 37 (quoting Lipsig v. National Student Marketing Corp., 214 U.S.App.D.C. 1, 3-4 , 663 F.2d 178, 180-81 (1980) (per cu-riam)).

1990General Federation of Women’s Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123, 1128 (D.C.1988).

1990As this court has noted, “the bad faith exception is intended to punish those who have abused the judicial process and to deter those who would do so in the future.” Id. at 37 (citation omitted); accord, e.g., General Federation of Women’s Clubs v. Iron Gate Inn, Inc., 537 A.2d 1123, 1128 (D.C.1988).

2021Ctr., 581 A.2d 759, 766 (D.C. 1990) (“In essence, the inference is akin to an admission by conduct of the weakness of one’s own case.”). 39 Battocchi, 581 A.2d at 767 (holding that, in civil cases, “upon a finding of gross indifference to or reckless disregard for the relevance of the evidence to a possible claim, the trial court must submit the issue of lost evidence to the trier of fact with corresponding instructions allowing an adverse inference”). 40 Id. at 766 (“Even courts eschewing a bad faith standard have acknowledged that the destruction must transcend ordinary negligence, and evinc

2021Ctr., 581 A.2d 759, 766 (D.C. 1990) (“In essence, the inference is akin to an admission by conduct of the weakness of one’s own case.”). 39 Battocchi, 581 A.2d at 767 (holding that, in civil cases, “upon a finding of gross indifference to or reckless disregard for the relevance of the evidence to a possible claim, the trial court must submit the issue of lost evidence to the trier of fact with corresponding instructions allowing an adverse inference”). 40 Id. at 766 (“Even courts eschewing a bad faith standard have acknowledged that the destruction must transcend ordinary negligence, and evinc

2019Sheriff, 580 F.3d 495, 501 (7th Cir. 2009) (statute providing for award of attorney’s fees to prevailing plaintiff “does not preclude application of the common law rule that a prevailing defendant may obtain attorneys’ fees if the plaintiff litigated in bad faith”). 17 Second, nothing in the legislative history of the District of Columbia’s enactment of the UCCJEA suggests that the UCCJEA was intended to preclude attorney’s fee awards under preexisting common-law exceptions such as the bad- faith exception or the necessaries doctrine.

2014The record, however, supports such a finding, and the trial court expressly referred to the bad-faith requirement in the child-support order. “[T]rial judges are presumed to know and apply the proper legal standards.” Wright v. Hodges, 681 A.2d 1102, 1105 (D.C.1996); see also In re C.T., 724 A.2d 590, 597 (D.C.1999) (“Trial court rulings come to us with a presumption of correctness.”).

2014The record, however, supports such a finding, and the trial court expressly referred to the bad-faith requirement in the child-support order. “[T]rial judges are presumed to know and apply the proper legal standards.” Wright v. Hodges, 681 A.2d 1102, 1105 (D.C.1996); see also In re C.T., 724 A.2d 590, 597 (D.C.1999) (“Trial court rulings come to us with a presumption of correctness.”).

2013Assidon v. Abboushi, 16 A.3d 939, 942 (D.C.2011) (“[A]uthorizing trial courts 'to grant attorney’s fees where the court finds that counsel was necessary to protect the interests of the children.' ” (quoting Prost v. Greene, 675 A.2d 471, 474 (D.C.1996))). .

2013The bad faith exception "permits an award of attorneys’ fees against a party who has acted 'in bad faith, vexatiously, wantonly, or for oppressive reasons’ connected to the litigation.” Synanon Found., Inc. v. Bernstein, 517 A.2d 28, 36 (D.C.1986) (quoting Roadway Express, Inc. v. Piper, 447 U.S. 752, 765-66 , 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980)); accord Ginsberg v. Granados, 963 A.2d 1134, 1141 (D.C.2009) (affirming award of attorneys’ fees and inferring bad faith from appellant’s completely frivolous complaint). .

2013Assidon v. Abboushi, 16 A.3d 939, 942 (D.C.2011) (“[A]uthorizing trial courts 'to grant attorney’s fees where the court finds that counsel was necessary to protect the interests of the children.' ” (quoting Prost v. Greene, 675 A.2d 471, 474 (D.C.1996))). .

2009See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 42-53 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991) (affirming award of attorney fees imposed under the bad faith exception to the American Rule and the court’s inherent powers); Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 , 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980) (attorney personally liable for attorney fees under bad faith exception); Baker v. Urban Outfitters, Inc., 431 F.Supp.2d 351, 363, 365-66 (S.D.N.Y.2006) (federal court could award attorney fees against attorney that sought unwarranted financial windfall under either court’s inherent po

2009This court’s review is “therefore confined to a determination of whether the [trial court] failed to consider a relevant factor, whether [it] relied upon an improper factor, and whether the reasons given reasonably support the conclusion.” Jung, supra, 844 A.2d at 1109 (brackets in original; internal citation and quotation marks omitted). 4 *1138 “The mere fact the plaintiff did not prevail before the [trial] court does not necessarily imply that its conduct was ‘vexatious’ or ‘wanton.’ ” Autorama Corp. v. Stewart, 802 F.2d 1284, 1288 (10th Cir.1986); see also 6921 Georgia Ave., supra note 3,

2009A court nonetheless may infer bad faith in circumstances where “an attorney ... brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous.” Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir.1987) (internal citation omitted); see also Synanon Found,., supra note 4, 517 A.2d at 40 (“A claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.”) (quoting Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980

2009A court nonetheless may infer bad faith in circumstances where “an attorney ... brings an action that a competent attorney could not under any conceivable justification reasonably believe not frivolous.” Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir.1987) (internal citation omitted); see also Synanon Found,., supra note 4, 517 A.2d at 40 (“A claim is colorable, for the purpose of the bad faith exception, when it has some legal and factual support, considered in light of the reasonable beliefs of the individual making the claim.”) (quoting Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir.1980

2009This court’s review is “therefore confined to a determination of whether the [trial court] failed to consider a relevant factor, whether [it] relied upon an improper factor, and whether the reasons given reasonably support the conclusion.” Jung, supra, 844 A.2d at 1109 (brackets in original; internal citation and quotation marks omitted). 4 *1138 “The mere fact the plaintiff did not prevail before the [trial] court does not necessarily imply that its conduct was ‘vexatious’ or ‘wanton.’ ” Autorama Corp. v. Stewart, 802 F.2d 1284, 1288 (10th Cir.1986); see also 6921 Georgia Ave., supra note 3,

2009See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 42-53 , 111 S.Ct. 2123 , 115 L.Ed.2d 27 (1991) (affirming award of attorney fees imposed under the bad faith exception to the American Rule and the court’s inherent powers); Roadway Express, Inc. v. Piper, 447 U.S. 752, 767 , 100 S.Ct. 2455 , 65 L.Ed.2d 488 (1980) (attorney personally liable for attorney fees under bad faith exception); Baker v. Urban Outfitters, Inc., 431 F.Supp.2d 351, 363, 365-66 (S.D.N.Y.2006) (federal court could award attorney fees against attorney that sought unwarranted financial windfall under either court’s inherent po

2009Thus, the standard for awarding attorneys’ fees under Rule 11 is less rigorous than the bad-faith standard. 6921 Georgia Ave., N.W., Ltd. v. Universal Cmty. Dev., LLC, 954 A.2d 967, 973 (D.C.2008).

2004See Synanon Found., Inc., 517 A.2d at 36 (recognizing that the American rule is premised on the maxim that since litigation is uncertain in its outcome, one should not be penalized for prosecuting an unsuccessful lawsuit); see also Americana Indus., Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir.1977) (“Invocation of the bad faith exception ... requires more than a showing of a weak or legally inadequate case.”); Driscoll v. Oppenheimer & Co., 500 F.Supp. 174, 176 (N.D.Ill.1980) (“[T]he fact that this litigation ultimately proved to be misguided and unconvincing cannot in its