is a Member of Sherman & Howard L.L.C., Denver, Colorado, and practices transactional intellectual property, publishing, information technology and business law. Jon has been privileged to work in these legal disciplines for over twenty-five years, and regularly teaches about them for Colorado CLE, trade associations, and academic and other organizations. For more information, or to contact Mr. Tandler, please visit his firm profile page.
Justice Kagan stated as one primary factor that a District Court should put substantial weight on the reasonableness of the losing party’s position. The lower courts are in a good position to review and administer this factor, and it encourages parties with meritorious positions to advance them. Justice Kagan quite rightly stated that this was not the only factor, and that other previously articulated factors set forth in Fogerty also need to be evaluated. These include the “frivolousness [of the losing party’s position], [such party’s] motivation, objective unreasonableness, and the need in particular circumstances to advance considerations of compensation and deterrence.” Fogerty at 534, n.19.