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F.T.C. v. FREECOM COMMUNICATIONS, INC.

No. 03-4063.

401 F.3d 1192 (2005)

FEDERAL TRADE COMMISSION, Plaintiff-Appellant, v. FREECOM COMMUNICATIONS, INC.; Financial Freedom Report; Silent Salesforce; Eleva; American Home Business Association; FFR Marketing; Robert V. Brazell; Don S. Gull; Kelly Haroldsen; Annette S. Brazell; Dana P. Gull, Defendants, and Mark O. Haroldsen, Defendant-Appellee.

United States Court of Appeals, Tenth Circuit.

March 21, 2005.

Attorney(s) appearing for the Case

Lawrence DeMille-Wagman (William E. Kovacic, General Counsel, and John F. Daly, Deputy General Counsel for Litigation, with him on the briefs), Federal Trade Commission, Washington, D.C., for Plaintiff-Appellant.

Evan A. Schmutz (Wm. Kelly Nash with him on the brief), Hill, Johnson & Schmutz, L.C., Provo, UT, for Defendant-Appellee.

Before TACHA, Chief Circuit Judge, and BALDOCK and HENRY, Circuit Judges.

BALDOCK, Circuit Judge.

The Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(b), authorizes a district court to award attorney fees against the Government under the bad faith exception to the common law's "American Rule" that each party bear the financial burden of civil litigation regardless of its outcome. The Government acts in bad faith when its claim (1) is entirely without color and (2) has been asserted...

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