PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ XLEAR, INC., a Utah corporation, Plaintiff - Appellant,

v. FOCUS NUTRITION, LLC, a Utah limited liability company, Defendant - Appellee. No. 17-4126

_________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:16-CV-00643-DB)

_________________________________ Timothy B. Smith (Kenneth A. Okazaki an d Taryn N. Evans with him on the briefs), Jones Waldo Holbrook & McDonough, P.C., Salt Lake City, Utah, for Plaintiff - Appellant. Matthew A. Steward (Shannon K. Zollinge r with him on the brief), Clyde Snow & Sessions, P.C., Salt Lake City, Ut ah, for Defendant - Appellee.

________________ _________________ Before MATHESON , McHUGH , and EID , Circuit Judges.

_________________________________ McHUGH , Circuit Judge.

_________________________________ Xlear, Inc. and Focus Nutrition, LLC are both in the business of selling sweeteners that use the sugar alcohol xylitol. Xlear filed a complaint raising a trade FILED United States Court of Appeals Tenth Circuit 

### June 26, 2018
Elisabeth A. Shumaker Clerk of Court2 dress infringement claim under the Lanham Act, a claim under the Utah Truth in Advertising Act (UTIAA), and a claim under the common law for unfair competition. The claims all alleged that Focus Nutrition copied the packaging Xlear used for one of its sweetener products. Focus Nutriti on moved to dismiss Xlear’s Lanham Act claim. At a hearing on Focus Nutrition’s mo tion to dismiss, the district court judge made several comments questioning the va lidity of Xlear’s Lanham Act claim but, ultimately, denied the motion. Following the hearing, the parties, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), stipul ated to the dismissal of all claims with prejudice. Under the stipulation, the parties reserved the right to seek atto rneys’ fees and Focus Nutrition exercised its right by f iling a motion under Fede ral Rule of Civil Procedure 54 to recover its fees under th e Lanham Act and the UTIAA. The district court concluded that Focus Nutrition wa s a prevailing party under both the Lanham Act and the UTIAA, and that Focus Nutrition was entitled to all of its requested fees. On appeal, Xlear raises fi ve challenges to the district court’s order. We reverse the district court’s award of attorneys’ fees under the Lanham Act because Focus Nutrition is not a prevailing pa rty under federal law. As to the UTIAA, we vacate the district court’s award of atto rneys’ fees and remand for fu rther proceedings to permit the district court to analy ze the factors governing prevaili ng party status under Utah law and, if the court concludes Focus Nutrition is a prevailing party under the UTIAA, to determine what portion of the requested fees Focus Nutrition incurred in defense of the UTIAA claim and the re asonableness of the requested fees.3 I. BACKGROUND Xlear and Focus Nutrition both sell swee teners containing the sugar alcohol xylitol. According to Xlear’s complaint, several former em ployees of Xlear work for Focus Nutrition. Xlear further alleged that wh en Focus Nutrition struggled to sell its sweetener in a blue box, Focus Nutrition changed its packaging to resemble the packaging used by Xlear. The three-count co mplaint filed by Xlear alleged (1) trade dress infringement under the Lanham Act, 15 U. S.C. § 1125(a); (2) a violation of the UTIAA, Utah Code Ann. § 13–11a–3; an d (3) common law unfai r competition. Focus Nutrition filed an answer to the complaint, defending th e action on the grounds that Xlear’s packaging and trade dress were not distinctive and that Focus Nutrition’s packaging was not likely to confuse cons umers. Focus Nutrition also raised a counterclaim, in which it sought a “decla ratory judgment of non-infringement and unenforceability” relative to whether Xlear’ s packaging constituted a protectable trade dress. App’x at 45–46. Focus Nutrition moved, under Federal Ru le of Civil Procedure 12(c), to dismiss Xlear’s Lanham Act claim on the pleadings. Focus Nutrition’s Rule 12(c) motion, however, did not seek dismissal of Xlear’s UTIAA clai m or Xlear’s common law unfair competition claim. The district court convened a hearing on the Rule 12(c) motion. By the hearing date, Xlear had not conducted any discover y or submitted any initial disclosures required by Federal Rule of Civil Procedure 26(a)(1). At the hearing, Focus Nutrition presented the di strict court with the packaging used by several of Focus Nutrition’s and Xlear’s competitors. Viewing the display, the4 district court judge expresse d skepticism about th e validity of Xlear’s allegations and Xlear’s ability to produce evid ence in support of its Lanha m Act claim. Relevant to Focus Nutrition’s argument for r ecovering its attorneys’ fees , the district court judge made three statements:

 “I have had dozens of trade dress ca ses through the years . . . it just seems as weak a case as I can imagine from a company that is upset that some former employees went out and did exactly what it seems like a lot of other compan ies are doing with this same Xylitol product and artificial sweeteners.” Id. at 107.

 “[I]t wouldn’t be hard for me toda y to say that no reasonable jury is going to find trade dress infri ngement based on the allegations . . . and a lack of facts on your si de, and that is why I asked what you’re planning to do in discovery.” Id. at 109.

 “It is a little hard to believe that there are facts to support [the allegation that customers associat e specific packagin g with Xlear’s products] when we just look at this display [of all the sweetener companies’ packaging] here on the table.” Id. at 110. Ultimately, however, the Rule 12(c) nature of the proceeding compelled the district court to focus on the pleadings and deny the motion. Following the hearing, th e parties engaged in sett lement discussions, which culminated in a stipulation of dismissal pur suant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). 1 Under the stipulation of dismissal, all three of Xlear’s claims, as well as Focus Nutrition’s counterclaim, were dismissed with prejudice but the parties reserved the right to seek attorneys’ fees. In accord with the stipulation of dismissal, the Clerk of Court te rminated the case.

1 The parties filed the stipulation after the deadline for conducting fact discovery. Although Xlear repr esented at the hearing on Fo cus Nutrition’s Rule 12(c) motion that it would engage in discovery by conducting depositions , it never did so.5 Within fourteen days of the entry of the stipulation of dismissal, Focus Nutrition filed a Federal Rule of Civil Procedure 54 motion seeking $26,674 in attorneys’ fees. In its Rule 54 motion, Focus Nutrition argued that it was entitled to recover its attorneys’ fees under both the Lanham Act and the UTIAA. Focus Nutrition supported the reasona bleness of the requested a ttorneys’ fees through an affidavit from lead counsel and a one-pag e billing record. The a ffidavit summarized the parties’ conduct during the litigati on, provided information about Focus Nutrition’s attorneys’ hourly rates and e xperience, and identif ied six broad tasks performed by counsel during the litigation. The billing record provided a month-bymonth accounting of the requested attorney s’ fees but did not indicate how much time counsel spent on a given task and did not separate the requested fees by claim— i.e., how much was attributable to the de fense of the Lanham Ac t claim, the defense of the UTIAA claim, the defense of the common law unfair competition claim, or the pursuit of the counterclaim. In response to the Rule 54 motion, Xlear argued, in part, that Focus Nutrition was not a prevailing party under either the Lanham Act or the UTIAA and that Focus Nutrition failed to submit sufficient evid ence to permit the district court to assess the reasonableness of the request ed fees. In reply, Focus Nutrition did not provide any additional evid ence in support of the requested fees; instead, it argued that the af fidavit and one-page billing r ecord were sufficient to permit the court to assess the reas onableness of the requested fees. The district court commenced its anal ysis of Focus Nutrition’s Rule 54 motion by finding that Xlear (1) fi led a cursory complaint; (2 ) failed to provide initial6 disclosures as required by Federal Rule of Civil Procedure 26; (3) did not “conduct, respond to, or participate in a ny discovery to support its clai ms”; and (4) stipulated to the dismissal with prejudice af ter the fact discovery dead line and on the eve of Focus Nutrition filing a motion for summary judgment. Id. at 149–50. Relevant to our resolution of this appeal, the district court conclude d that Focus Nutrition was a prevailing party under both the Lanham Ac t and the UTIAA. Without discussing Xlear’s argument about the sufficiency of the evidence submitted by Focus Nutrition in support of the requested fees and with out stating any findings relative to the reasonableness of the requested fees, the district court aw arded Focus Nutrition all of its requested fees. Xlear appeals the district court’s award of attorneys’ fees. On appeal, Xlear’s arguments include: (1) a sti pulation of dismissal pursuan t to Rule 41(a)(1)(A)(ii) does not produce a judgment for purposes of a Rule 54 motion; (2) Focus Nutrition was not a prevailing party for purposes of the Lanham Act; (3) the district court did not consider the factors gove rning the prevailing party analysis under Utah law for purposes of awarding fees under the UTI AA; (4) even if Focus Nutrition was a prevailing party under the UTIAA, Focus Nu trition would be entitled to recover only fees related to the UTIAA claim and not the Lanham Act claim, the common law unfair competition claim, or the counterclai m; and (5) Focus Nutrition did not submit sufficient evidence to permit the district court to determ ine the reasonableness of the requested fees. In response, Focus Nutrition de fends the merits of the district court’s award of attorneys’ fees a nd argues that Xlear did not preserve its argument that a7 Rule 41(a)(1)(A)(ii) stipul ation of dismissal does not produce a judgment for purposes of a Rule 54 motion. After stating the standard of review, we address each of the above identified arguments. II. STANDARD OF REVIEW Generally speaking, “[w]e review the d ecision to award attorney fees, and the amount awarded, for abuse of discretion.” United Phosphorus, Ltd. v. Midland Fumigant, Inc. , 205 F.3d 1219, 1232 (10th Cir. 2000). “An abuse of discretion has been characterized as an ar bitrary, capricious, whimsical , or manifestly unreasonable judgment.” Mid-Continent Cas. Co. v. Vill. atDeer Creek Homeowners Ass’n, Inc. , 685 F.3d 977, 981 (10th Cir. 2012) (internal quotation ma rks omitted). A district court abuses its discretion if it commits legal error, relies on clearly erroneous factual findings, or issues a ruling without any rational evidentiary basis. Dullmaier v. Xanterra Parks & Resorts , 883 F.3d 1278, 1295 (10th Ci r. 2018). Further, although a district court possesses br oad discretion to award atto rneys’ fees, “[i]t remains important . . . for the district court to provide a concise but clear explanation of its reasons for the fee award.” Mares v. Credit Bureau of Raton , 801 F.2d 1197, 1201 (10th Cir. 1986) (quoting Hensley v. Eckerhart , 461 U.S. 424, 437 (1983)). “Such explanations must give us an adequate basis for review. And, in reaching their determinations district courts must foll ow the guidelines established by the Supreme Court and this court.” Id . (internal quotation marks and citation omitted). Although the overarching standard of re view is for an abuse of discretion, “[w]e review the statutory interpretation or le gal analysis that form ed the basis of the8 award de novo.” Malloy v. Monahan , 73 F.3d 1012, 1017 (10th Cir. 1996). Whether a litigant is a “prevailing pa rty” is a legal questi on we review de novo. Lorillard Tobacco Co. v. Engida , 611 F.3d 1209, 1214 (10th Cir. 2010). Finally, although this appeal involves the review of an award of attorneys’ fees under state law, the standard of review under which we review an award of fees is a procedural matter controlled by federal precedent. See id. at 1213 (“In reviewing state law awards of attorney’s fees, . . . it ha s been our consistent practi ce to look to our own precedent on this purely procedural issue— viz ., the applicable sta ndard of review.”). III. DISCUSSION A. Does a Fed. R. Civ. P. 41(a)(1)(A)(ii) Stipulation of Dismissal Produce a Judgment for Purposes of a Fed. R. Civ. P. 54 Motion? A motion for attorneys’ fees pursuant to Federal Rule of Civil Procedure 54

must: (i) be filed no later than 14 days after the entry of judgment ; (ii) specify the judgmentand the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or prov ide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the serv ices for which the claim is made. Fed. R. Civ. P. 54(d)(2)(B) (emphasis added). Based on the use of the word “judgment” in subclauses (i) a nd (ii), entry of a judgment is a prerequisite for a Rule 54 motion for attorneys’ fees. Put another wa y, if there was no judgment, then a Rule9 54 motion was not a proper mechanism by which Focus Nutrition could seek attorneys’ fees. 2 On appeal, Xlear contends that a Rule 41(a)(1)(A)(ii) stipul ation of dismissal does not produce a judgment. In support of this contention, Xlear advances two distinct arguments: (1) we should extend the Supreme Court’s recent holding in Microsoft Corp. v. Baker , 137 S. Ct. 1702 (2017), to conc lude that where a voluntary stipulation of dismissal does not produce a final judgment for pur poses of appellate jurisdiction, it also does not produce a judgment for purposes of a motion under Federal Rule of Civil Pro cedure 54; and (2) a stipula tion of dismissal under Rule 41(a)(1)(A)(ii) is self-executi ng such that the district c ourt never enters a physical judgment. In response, Focus Nutrition argues that Xlear failed to preserve this issue by not raising it in the district court but th at, if we reach the issue, we should not extend Microsoft because it addressed a narrow issue specific to class action litigation. In reply, Xlear ac knowledges it did not raise th is issue below but contends that an exception to the preservation requi rement exists because the Supreme Court decided Microsoft after Xlear filed its response to Focus Nutrition’s Rule 54 motion. We start our analysis by considering Fo cus Nutrition’s preservation argument.

2 This is not to say that the lack of a judgment would have nullified Focus Nutrition’s ability to act on the reservation in the stipulati on to seek attorneys’ fees. Attorneys’ fees may have been recovera ble under other provisions in the Federal Rules of Civil Procedure, such as Rule 37, or through the inherent powers of the federal district court to sanction a party, see Goodyear Tire & Rubber Co. v. Haeger , 137 S. Ct. 1178, 11 86 (2017). Because of these ot her potential means for seeking attorneys’ fees, we reject Focus Nutrition’s suggestion that Xlear’s entrance into the stipulation of dismissal estops Xlear from arguing there was no judgment for purposes of a Rule 54 motion for attorneys’ fees.10 1. Preservation Generally, “[a]n issue is waived if it was not raised below in the district court.” Wilburn v. Mid-South Health Dev., Inc. , 343 F.3d 1274, 1280 (10th Cir. 2003). “[W]e will relax the waiver rule wh en the issues involved are questions of law, the proper resolution of which are be yond reasonable doubt, and the failure to address the issues would result in a miscarriage of justice.” Gray v. Phillips Petroleum Co. , 971 F.2d 591, 592 n.3 (10th Cir. 1992) (internal quotation marks omitted). Separately, “an intervening change in the law permits appellate review of an issue to which a part y did not object below.” Id. Considering each of Xlear’s arguments in support of its contention that a Rule 41(a)(1)(A)(ii) stipulation does not prod uce a judgment for purposes of Rule 54 separately, we reach contrary conclusions on the issue of preservation. As Xlear’s response to Focus Nutrition’s Rule 54 moti on preceded the Supreme Court’s decision in Microsoft , appellate review of Xlear’s argument under Microsoft is appropriate. This is particularly true where some district courts have recently applied Microsoft to hold that a Rule 41(a)(1)(A)(ii) stipulati on of dismissal does not produce a judgment for purposes of a Rule 54 motion. See Keith Mfg. Co. v. Butterfield , 256 F. Supp. 3d 1123, 1128–30 (D. Or. 2017); see also Physician’s Su rrogacy, Inc. v. German , ___ F. Supp. 3d ___, 2018 WL 1876187, at *2 (S .D. Cal. Apr. 19, 2018) (relying on Keith to conclude that stipulation of dismissal di d not produce judgment for purposes of Rule 54); but see Killer Burger, Inc. v. Rock & Roll Chili Pit, Inc. , 2018 WL 1156237, at *2 (D. Or. Mar. 5, 2018) (distinguishing Keith and rejecting application of Microsoft11 to Rule 54 motion where Rule 41(a)(1)(A)( ii) stipulation of dismissal included reservation of parties’ rights to seek attorn eys’ fees). We, however, conclude that appellate review of Xlear ’s second argument— that a Rule 41(a)(1)(A)(ii) stipulation of dismissal is self-executing and does not result in a physical judgmen t—is not preserved or subject to an exception to the preservation requirement. As early as 2011, we concluded that “[a] stipulation of dismissal filed under Rule 41(a)(1)(A)(i) or (ii) is self-executing and immediately strips the district court of jurisdiction over the merits.” De Leon v. Marcos , 659 F.3d 1276, 1283 (10th Cir. 2011). Furthermore, at the time Xlear filed its response to the Rule 54 motion, it was apparent from the docke t that the district court did not enter a physical judgment. Thus, nothing prevente d Xlear from arguing below that a Rule 41(a)(1)(A)(ii) stipulation of dismissal is self-executing a nd that there was no physical judgment for purposes of a Rule 54 motion. Accordingly, we decline to consider this argument for the first time on appeal. 2. Microsoft Does Not Apply Within the Context of a Rule 54 Motion
In Microsoft , the district court denied the put ative class plaintiff’s motion for class certification, a denial that is not a final judgment and does not otherwise permit for an appeal as of right. 137 S. Ct. at 1710 –11. Instead of litigati ng his claims as an individual plaintiff and app ealing the denial of his mo tion for class certification following a final judgment on his individual claims, the plaintiff stipulated to the dismissal of his action with prejudice but rese rved the right to ref ile the action if the appellate court reversed the district c ourt’s adverse class cer tification decision. Id. at12 1706–07, 1711. After the a ppellate court reversed the adverse class certification decision, Microsoft petitioned to the Supreme Court, argui ng that the stipulation of dismissal was not a final decision capable of creating appellate jurisdiction under 28 U.S.C. § 1291. See id. at 1711–12. Focusing on the un ique nature of class action litigation and that the voluntary dismissa l tactic employed by the putative class plaintiff would allow plaintif fs to appeal immediately fro m adverse class certification decisions but not allow defendants the same appellate opportunity and could result in piecemeal appeals, the Supreme Court held that a voluntary dismissal within the context of a class action suit was not a “f inal decision” for pur poses of appellate jurisdiction. Id. at 1707, 1713. We read Microsoftas addressing the narrow situation where a hopeful class action plaintiff uses a stipula tion of dismissal as a tactic to overcome the limitations placed on appellate jurisd iction by 28 U.S.C. § 1291. 3 Notably, a stipulated dismissal with prejudice pursuant to Rule 41(a)(1)(A )(ii) that reserves only the issue of attorneys’ fees does not crea te any possibility of piecem eal litigation and cannot give rise to the plaintiff re-filing any of the dismissed claims. Nor is the stipulated dismissal in this case a tactic to turn an interlocutory orde r into a final judgment or to otherwise overcome a jurisdicti onal defect. Finally, the stipul ation here does not have

3 Our reading of Microsoft Corp. v. Baker , 137 S. Ct. 1702 (2017), is in accord with the reading of the Court of Appeals for the District of Columbia Circuit. See In re Brewer , 863 F.3d 861, 871 (D.C. Cir. 2017) (noting limited reach of holding in Microsoft because the decision was driven by the “questionable tactics” used by the putative class plaintiff in an effort to circumvent the rule s governing appellate jurisdiction).13 the effect of giving only one party the ab ility to appeal. Instead, the stipulation permitted both parties to seek attorneys’ fees, from which a single appeal, by either party and limited to the issue of attorneys’ fees, might follow. Accordingly, none of the concerns underlying the holding in Microsoft are present when parties enter into a Rule 41(a)(1)(A)(ii) stipulati on of dismissal with prejudi ce that reserv es only the issue of attorneys’ fees. We therefore decline to read Microsoft as supporting the conclusion that a Rule 41( a)(1)(A)(ii) dismissal does not produce a judgment for purposes of a motion for atto rneys’ fees under Rule 54. Having established that Microsoft does not preclude Focus Nutrition from seeking attorneys’ fees through a Rule 54 motion, we proceed by analyzing the district court’s determination that Focus Nutrition was entitled to recover $26,674 in attorneys’ fees, first considering th e award under the Lanham Act and then considering the award under the UTIAA. B. Attorneys’ Fees Under the Lanham Act Under the Lanham Act, “[t]he court in exceptional cases may award reasonable attorney fees to th e prevailing party.” 15 U.S.C. § 111 7(a). Thus, a party seeking an award of attorneys’ fe es must demonstrate that (1) it is a “prevailing party” and (2) the case is “exceptional.” B ecause Focus Nutrition is not a “prevailing party,” we start and end our analysis on that matter without considering whether this case was “exceptional.” The Supreme Court has defined “prevaili ng party” as “a part y in whose favor judgment is rendered, regardless of the amount of damages awarded.” Buckhannon14 Bd. & Care Home, Inc. v. W. Va . Dep’t of Health & Human Res. , 532 U.S. 598, 603 (2001) (quoting Black’s Law Di ctionary 1145 (7th ed. 1999)). 4 To meet this definition, a party must be “one who has been awarded so me relief by the court” in that the court materially al tered the legal relationship be tween the plaintiff and the defendant. Id. at 603–04. Thus, “[a] defendant ’s voluntary change in conduct, although perhaps accomplishing what the plai ntiff sought to achieve by the lawsuit, lacks the necessa ry judicial imprimatur on the change.” Id. at 605. Buckhannon identified two situations—“en forceable judgments on the merits and court-ordered consent decrees”—that invol ve sufficient judicial imprimatur to convey prevailing party status onto a litigant. Id. at 604; see Sole v. Wyner , 551 U.S. 74, 82 n.3 (2007) (identifying Buckhannon as holding that the term prev ailing party “does not ‘include a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the de sired result because the lawsuit brought about a voluntary change in th e defendant’s conduct’” (quoting Buckhannon , 532 U.S. at 600)); see also CRST Van Expedited Inc. v. EEOC , 136 S. Ct. 1642, 1651–52 (2016) (concluding pro cedural-based judgment that te rminated litigation in favor of

4 Although Buckhannon involved a party seeking attorneys’ fees pursuant to the Fair Housing Amendments Act of 1988 and the Ameri cans with Disabilities Act, Buckhannon Bd. & Care Home , Inc. v. W. Va. Dep’t of Health & Human Res. , 532 U.S. 598, 601 (2001), the phr ase “prevailing party” app ears in multiple fee-shifting statutes and should be interpreted in a “consistent manner” ac ross those statutes, CRST Van Expedited, Inc. v. EEOC , 136 S. Ct. 1642, 1646 (2016). Thus, while Buckhannon did not address a request for attorn eys’ fees under the Lanham Act, its teachings about the definition of the phrase “prevailing party” apply with full force to a request for attorneys’ fees under the Lanham Act.15 defendant qualified as judicial imprimatur to convey prevaili ng party status onto defendant). For our part, we have had at least three occasions to apply Buckhannon to the question of whether a litigant was a prevailing party for purposes of recovering attorneys’ fees. See Biodiversity Conser vation All. v. Stem , 519 F.3d 1226 (10th Cir. 2008); Bell v. Bd. of Cty. Comm’rs , 451 F.3d 1097 (10th Cir. 2006); see also Sanchez v. Bd. of E. N.M. , 361 F. App’x 980 (10th Cir. 2010). In Bell , we concluded that a settlement was only capable of conveying prevailing party status onto a litigant if the settlement bore the hallmarks of a consent decree: if a court does not incorporate a priv ate settlement into an order, does not sign or otherwise provide written approv al of the settlement’s terms, and does not retain jurisdiction to enfo rce performance of the obligations assumed by the settling parties, the se ttlement does not bear any of the marks of a consent decree and does not confer prevailing party status on the party whose claims have been compromised. 451 F.3d at 1103 (quota tion marks omitted) (citing T.D. v. LaGrange Sch. Dist. No. 102 , 349 F.3d 469, 479 (7th Cir. 2003); Smyth v. Rivero , 282 F.3d 268, 285 (4th Cir. 2002); Smalbein ex rel. Smalbein v. City of Daytona Beach , 353 F.3d 901, 905–06 (11th Cir. 2003)). Further, a court’s involvement in a settlement conference by assuming a quasimediator role and advising the parties of th e strengths and weaknesses of their case is insufficient to satisfy the judicial imprimatur requirement for a litigant to obtain prevailing party status. See id. ; see also Sanchez , 361 F. App’x at 984–85. Likewise, a clerk of court terminating a case following a stipulation of dismi ssal does not constitute judicial action or judicial imprimatur for purposes of the prevailing party analysis. Bell ,16 451 F.3d at 1104. And, the fact that a sti pulation of dismissal reserves the issue of attorneys’ fees and allows the district court to retain jurisdiction ove r that issue also does not qualify as judicial imprimatur relative to the dism issal of the action. Sanchez , 361 F. App’x at 983–84.
In Biodiversity Conservation Alliance , we rejected the contention that comments by a district court favoring the merits of one party’s position over another party’s position constitute sufficient judicial imprimatur to convey prevailing party status onto a litigant. 519 F.3d at 1230. Specif ically, we stated that Buckhannon requires more than a mere judicial statement favoring one party. Instead, in order for a party to prevail, the court’s statement mu st lend judicial teeth to the merits of the case. More specifically, a party is entitled to attorneys’ fees only if it could obtain a court order to enforce the merits of some portion of the cl aim it made in its suit

. . . .

. . . . . . . Judicial imprimatur , of the sort required in Buckhannon , gives a plaintiff substance it can rely on in enforcing the merits of its case. Id. (emphasis added). In an effort to establis h that it is a prevailing part y, Focus Nutrition relies on Xlear’s decision to enter into the stipul ation of dismissal with prejudice and the district court’s comments during the heari ng on its Rule 12(c) mo tion. The stipulation of dismissal in this case doe s not bear any attributes of a consent decree and did not permit the district court to retain jurisdiction to enforce any aspect of the dismissal relative to the merits of case. Instead, the stipulation of dismissal, by the fact that it was a stipulation entered into under Federa l Rule of Civil Procedure 41(a)(1)(A)(ii),17 did not permit the district court to take a ny action relative to th e merits of Xlear’s claims or Focus Nutrition’s counterclaim. See Smith v. Phillips , 881 F.2d 902, 904 (10th Cir. 1989) (“A voluntary dismissal by stipulation un der Rule 41(a)(1)[(A)](ii) is of right, cannot be conditi oned by the court, and does not call for the exercise of any discretion on the part of th e court. Once the stipulation is filed, the action on the merits is at an end.” (citations and footnot e omitted)). Further, the stipulation of dismissal resulted only in the Clerk of Co urt terminating the case. And we have already held that a clerk of court terminating a case afte r a settlement by the parties does not constitute sufficient judicial imprimatur for the prevailing party analysis. Bell , 451 F.3d at 1104. We turn next to the comments by the di strict court judge at the hearing on the Rule 12(c) motion. While certainly favor able to Focus Nutrition’s legal position because they signaled the district court was likely to grant a future motion for summary judgment by Focus Nutrition, the comments were not sufficient to allow Focus Nutrition to “obtain a court order to enforce the merits of some portion of the claim.” See Biodiversity Conservation All. , 519 F.3d at 1230. In fact, the district court denied Focus Nutrition’s Rule 12(c) motion. In so doing, the district court explicitly indicated that ther e was a possibility that Xl ear could produce evidence to substantiate its claims and proceed past summary judgment. Specifically, the district court judge stated, “I suppose there is the possibility th at facts will get revealed during this discovery disclosu re window that would allo w [Xlear] to avoid summary judgment.” App’x at 115–16. Thus, while the district j udge’s comments about the18 validity of Xlear’s Lanham Act claim may have prompt ed Xlear to enter into meaningful settlement talks that culminated in the stipulation of dismissal with prejudice, these comments cannot be viewed as judicial action th at altered the legal rights of either party. 5 In summation, under Buckhannon , Bell , and Biodiversity Conservation Alliance , to establish that it was a prevailing party, a litig ant must demonstrate the existence of judicial imprimatur by identifying judicial action that altered or modified the legal rights of the partie s. Focus Nutrition cannot satisfy this requirement and, therefore, is not entitl ed to recover attorn eys’ fees under the Lanham Act. Therefore, we reverse the distri ct court’s award of attorneys’ fees under the Lanham Act. C. Attorneys’ Fees Under the UTIAA Focus Nutrition argues that even if it wa s not a prevailing party under federal law for purposes of the Lanham Act, it was a prev ailing party under Utah law for purposes of

5 Put another way, Focus Nutrition argue s that because the district court’s comments were the precipita ting factor, or the catalyst, for Xlear engaging in settlement talks and entering into the stipulation of dismissal with prejudice, the comments qualify as judicial imprimatur . However, Buckhannon rejected the catalyst theory for determining if a litigant is a prevailing pa rty and precluded courts from considering the “subjective motivations” of a party who voluntarily changed course during litigation when conducting th e prevailing party analysis. See Buckhannon , 532 U.S. at 601; see also Petersen v. Gibson , 372 F.3d 862, 866 (7th Cir. 2004) (noting that catalyst theory necessitated evaluation of subjec tive motivations of the parties and Buckhannon rejected reliance on such as part of prevailing party analysis). Accordingly, faithf ul application of Buckhannon prevents us from considering what motivated Xlear to ente r into the stipulation of dismi ssal and, instead, forces us to focus our analysis on the fact that Xlear’s entrance into the stipulation of dismissal was voluntary and the filing of the stipulation of dismissal did not permit for or result in any approval or action by the district c ourt relative to the me rits of the case.19 the UTIAA and that the UTIAA entitled it to r ecover its requested attorneys’ fees of $26,674. For two independent reasons, we vacate the district court’s award of attorneys’ fees under the UTIAA and remand for further proceedings. Under the UTIAA, “[t]he cour t shall award attorneys’ fees to the prevailing party.” Utah Code Ann. § 13–11a–4(2)(c). Because a provision of the UTI AA awards attorneys’ fees to the prevailing party—an outcome-based reason for awardi ng fees that is part and parcel of the state law cause of action—the UTIAA fee award statute is substantive, and state law controls the ability to award Focu s Nutrition fees stemming from its defense of Xlear’s UTIAA claim. See United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 726 (1966) (applying Erie 6 Doctrine to state law claims arising under supplemental jurisdiction); see also Chieftain Royalty Co. v. Enervest Energy Institutional Fu nd XII–A,
L.P. , 888 F.3d 455, 460 (10th Ci r. 2017) (state law governing attorneys’ fees is substantive when it ties the r ecoverability of attorneys’ f ees to the “outcome of the litigation” or where the state-created right to re cover attorneys’ fees is “part and parcel of the cause of action over which we have [suppl emental] jurisdiction” (internal quotation marks omitted)). The Utah Supreme Court has adopted a “flexible,” “reasoned,” and “commonsense” approach to whether a litigant is a prevailing party. Neff v. Neff , 247 P.3d 380, 399, 400 (Utah 2011). This approach requir es a “case-by-case evaluation” so as “to handle circumstances where both, or neith er, parties may be considered to have prevailed.” Id. at 398 (emphasis omitted ). In employing this approach, a trial court should

6 Erie R. Co. v. Tompkins , 304 U.S. 64 (1938).20 consider several factors, including “the language of the . . . statute that forms the basis for the attorney fees award, the number of claims brought by th e parties, the importance of each of the claims relative to the entire litigation, a nd the amounts awarded on each claim.” Id. at 398. The trial court ma y also consider whether interests of “justice and equity” weigh in favor or agains t an award of attorneys’ fees. See Hull v. Wilcock , 285 P.3d 815, 830–31 (Utah Ct. App. 2 012). Finally, under Utah law, a party seeking fees must allocat e its fee request according to its underlying claims. Ind eed, the party must categorize the time and fees expended for “(1) succes sful claims for which there may be an entitlement to attorney fees, (2) uns uccessful claims for which there would have been an entitlement to attorney fees had the claims been successful, and (3) claims for which th ere is no entitlem ent to attorney fees.” Foote v. Clark , 962 P.2d 52, 55 (Utah 1998) (quoting Cottonwood Mall Co. v. Sine , 830 P.2d 266, 269–70 (Utah 1992)). By incorrectly concluding that Focus Nu trition was a prevaili ng party under the Lanham Act, the district court never analyz ed which of the requested fees stemmed from Focus Nutrition’s defense of the UTIAA claim rather than the Lanham Act claim. Nor could the district court have attempted to perform this anal ysis where the affidavit and one-page billing record submitted by Focus Nutrition did not delineate time spent defending the UTIAA claim from time spent defending th e Lanham Act claim and the common law unfair competition claim or time sp ent pursuing the coun terclaim. That said, from the record before us, we know that Focus Nutrition’s atto rneys’ fees relative to its Rule 12(c) motion are not recoverable under the UTIAA because the motion only sought dismissal of Xlear’s Lanham Act claim. We also know that Focus Nutrition pursued a21 counterclaim under the Lanham Act. Thus, attorn eys’ fees attributable to the preparation and prosecution of the counterclaim cannot be recovered under the UTIAA. 7 Even assuming temporarily that Focus Nutrition is a prevailing party under Utah law for purposes of Xlear’s UTIAA claim, therefor e, would not permit an award of the full requested fees of $26,674. Ac cordingly, we must vacate th e district court’s award of attorneys’ fees under the UTIAA and remand the matter to permit th e district court to determine which of the requested fees are attr ibutable to Focus Nutrition’s defense of the UTIAA claim rather than to its defense of th e non-UTIAA claims or to its pursuit of the counterclaim. Apart from the fact that th e UTIAA cannot support an aw ard of the full requested fees, we conclude that the dist rict court did not adequately state its findings with respect to the prevailing party analysis under Utah law. The entirety of the district court’s analysis specific to Focus Nu trition’s attorneys’ fees reque st under the UTIAA reads: The Utah Truth in Adve rtising Act provides that“[c]osts shall be allowed to the prevailing party unless th e court otherwise directs. The court shall award attorneys’ fees to the prevailing party.” U.C.A. § 13-11a4(2)(c). Federal courts have followed Utah law in determining whether a party is the “prevailing part y” under this statute. See e.g. First Data Merch. Servs. Corp. v. SecurityMetrics Inc. , 672 Fed. Appx. 229, 239 (4th Cir. 2016). Under Utah law, the Court looks to whether there was a prevailing party “within the context of the case as a whole” in aw arding attorneys’ fees. See Neff v. Neff, 247 P.3d 380 (Utah 2011); First Data , 672 Fed. Appx. at 239. The Court is to empl oy a “flexible and reasoned approach” and “take into consideration ‘the signi ficance of the net judgment in the case’ and ‘the amounts actually sought . . . balanc[ed] . . . proportionally

7 Although we identify two examples of ta sks that were part of the requested attorneys’ fees and not incurred in defe nse of the UTIAA claim, other tasks not specifically identified here may al so fall into this category.22 with what was recovered.’” Giles v. Mineral Res. Int’l, Inc ., 320 P.3d 684, 687-88 (Utah App. 2014)( quoting A.K. & R. Whi pple Plumbing & Heating v. Guy , 94 P.3d 270 (Utah 20 04). “Courts should not ignore common sense when deciding which party prevailed.” Giles , 320 P.3d at 687-88. The Court finds that Defendant prev ailed within the context of this case as a whole. As discussed above, it succeeded in Plaintiff dismissing all of its claims with prejudice. App’x at 151–52. This analys is, however, does not account for several of the factors identified in Neff , particularly the importance of th e UTIAA claim relative to the entire litigation. See 247 P.3d at 398. The need for findings on this Neff factor is magnified by our earlier conclusion that Focu s Nutrition did not prevail on the Lanham Act claim. And, where we must vacate the district court’s award of attorneys’ fees under the UTIAA because the UTIAA canno t support an award of all of Focus Nutrition’s requested fees, we find it prudent, in light of the abuse of discretion standard that governs our review of attorneys’ fees awards, to allow the distri ct court to conduct a full analysis of the Neff factors in the first instance. In summation, while it may be the case th at Focus Nutrition is a prevailing party for purposes of the UTIAA, we vacate the di strict court’s award of attorneys’ fees under the UTIAA because the UTIAA cannot support an award of fees to Focus Nutrition for fees incurred in defense of the non-UTIAA claims or in pursuit of its counterclaim. Furthermore, on remand, the district court should analyze the f actors identified in Neff to determine if Focus Nutrition remains a preva iling party under the UTIAA in light of our conclusion that Focus Nutrition is not a prevailing party under the Lanham Act.23 D. Reasonableness of Requested Attorneys’ Fees Finally, because the matter is likely to arise again on remand, we discuss the parameters governing the issue of whethe r Focus Nutrition’s re quested attorneys’ fees are reasonable. As noted earlier, in granting Focus Nutrition all of its requested fees, the district court did not explicit ly comment on the reasonableness of the requested fees or address Xlear’s argum ent that Focus Nutr ition failed to submit adequate evidence to permit the district court to asse ss the reasonableness of the requested fees. Because we have already determined that if Focus Nutrition is to recover any attorneys’ fees it can only recover fees incurred in defe nse of the UTIAA claim, we start our analysis by consider ing the issue of whether fede ral or state law establishes the requirements for assessing the reasona bleness of the requested fees. “The calculation of attorney fees is considered substantive law because ‘the method of calculating a fee is an inhere nt part of the substantive right to the fee itself and reflects substantive state policy.’” Chieftain Royalty Co. , 888 F.3d at 462 (quoting Moore’s Federal Practice § 124.07[3][b] ( 3d ed. 2011)). Thus, “[w]hen state law governs whether to award attorney fees . . . state law also governs how to calculate the amount.” Id. at 461. And, “it is st ate substantive law that cabins the meaning of reasonable” with respect to the amount of fees awarded. Id. at 462 (emphasis omitted). Under Utah law, “an award of attorney fees must be suppor ted by evidence in the record.” Dixie State Bank v. Bracken , 764 P.2d 985, 988 (Utah 1988). “Except in24 the most simple cases, the evidence should include the hours spent on the case, the hourly rate or rates charged for those hour s, and usual and customary rates for such work.” U.S.A. United Staffing All., LLC v. Workers’ Comp. Fund , 213 P.3d 20, 30 (Utah Ct. App. 2009) (quoting Cottonwood Mall Co. , 830 P.2d at 268). Additionally, the evidence submitted in suppor t of the fee request should pe rmit the district court to assess four questions central to the reasonableness inquiry: 1. What legal work was actually performed? 2. How much of the work performed was reasonably necessary to adequately prosecute [o r defend] the matter? 3. Is the attorney’s billing rate cons istent with the rates customarily charged in the locality for similar services? 4. Are there circumstances which requi re consideration of additional factors, including those listed in the Code of Professional Responsibility? Dixie State Bank , 764 P.2d at 990 (footnotes omitted). “The appropriateness of the work actually performed and of the attorney’s billing ra te is evaluated before a reasonable fee is set.” Id. “The trial court should . . . do cument its evaluation of the requested fees’ reasonablenes s through findings of fact,” which should (1) “mirror the requesting party’s allocati on of fees per claims,” (2 ) “support any award issued,” and (3) “detail the factors c onsidered dispositive by the tr ial court in calculating the award.” Foote , 962 P.2d at 55. Additionally, “[a] party is . . . entitled only to those fees resulting from its principal cause of action for which there is a contractual (or statutory) obligation for attorney’s fees.” Utah Farm Prod. Credit Ass’n v. Cox , 627 P.2d 62, 66 (Utah 1981). Therefore, where a party in curs attorneys’ fees pros ecuting or defending multiple25 claims within a single litigation and the pa rty has a statutory right only to recover fees relative to one of the claims, the pa rty must submit sufficien t evidence to permit the district court to determine what portion of the fees were incurred prosecuting or defending the claim for which fee rec overy is statutorily authorized. Id. ; see Paul Mueller Co. v. Cache Valley Dairy Ass’n , 657 P.2d 1279, 1288 (Utah 1982) (affirming fee award because “t he trial court . . . had suffi cient information before it in the billing records to en able it to separate the count erclaim hours from those spent in defense of the main causes of action”); see also Foote , 962 P.2d at 55 (requiring party seeking fees to delineate request ed fees based on successful claims, unsuccessful claims, and claims for whic h fee recovery is not authorized). Now that Focus Nutrition’s request for attorneys’ fees ri ses and falls on the UTIAA, the particulars of Utah law relati ve to the calculation and reasonableness of the requested fees are essential to Focu s Nutrition’s ability to recover any of its initially-requested fees. On remand, and assu ming the district court concludes Focus Nutrition is a prevailing party under th e UTIAA, Focus Nutrition must submit additional evidence sufficient to permit the court to ma ke the necessary findings relative to which fees were incurred in defense of th e UTIAA claim and what a reasonable award of fees is re lative to Focus Nutrition’s defense of the UTIAA claim. IV. CONCLUSION
We REVERSE the district court’s award of attorneys’ fees under the Lanham Act because Focus Nutrition cannot establis h that it was a prevailing party under federal law. And we VACATE the district court’s award of attorneys’ fees under the26 UTIAA because the UTIAA cannot support an award of attorneys’ fees incurred by Focus Nutrition when defending non-UTIAA claims or when prosecuting its Lanham Act counterclaim and because the district c ourt did not make findings relative to the prevailing party factors outlined in Neff . We REMAND this case to permit the district court to determine whether Focu s Nutrition is a prevailing party under the UTIAA and, if so, to determ ine the reasonableness of Fo cus Nutrition’s requested fee relative to its defense of the UTIAA claim.