(concurring in part, dissenting in part) — I concur with the majority except for its award of attorney fees. Defendant Black should not be deemed a prevailing party when he successfully defended only one of two claims brought against him. At this stage of the proceedings, Black won one case but the judgment in his other case has been set aside by the majority here for a retrial. Until it is finally determined whether Black violated the 1974 consent decree, there can be no prevailing party, which would entitle him to attorney fees under the statute. In any event, Black should be denied attorney fees for the same reasons that apply to defendants Tupper, Hege, Sullivan and their respective real estate companies. The trial court has not as yet found that the Attorney General's cause of action was frivolous and/or groundless, and at this juncture it is premature to grant attorney fees. The issue of attorney fees for defendants Tupper, Hege, Sullivan and Black should be remanded to the trial court for a written finding to determine whether the subject suit of the Attorney General against the three remaining defendants was frivolous.
I
The Attorney General filed the instant lawsuit in June 1978 against 12 real estate brokerage companies, 14 individual brokers, and the Spokane Board of Realtors, alleging a variety of Consumer Protection Act violations. Prior to trial, six defendant firms, five individual defendants and *810the Board of Realtors settled by signing consent decrees with the State. None of the remaining defendants brought any pretrial motions to dismiss or summary judgment motions. When the plaintiffs completed their case, the trial court denied a defense motion to dismiss, ruling that the State had established a prima facie case of unfair business practices in violation of the Consumer Protection Act. The record substantiates that neither the parties nor the trial judge at any time considered this lawsuit frivolous.
II
The purpose of the Consumer Protection Act is to foster fair and honest competition and to protect the public from unfair, dishonest and fraudulent business practices. The statute is to be liberally construed to serve its beneficial purposes. RCW 19.86.920. We have previously recognized this legislative directive in awarding substantial attorney fees to the State when it successfully enforces the statute. State v. Ralph Williams' N.W. Chrysler Plymouth, Inc., 87 Wn.2d 298, 314, 553 P.2d 423 (1976), appeal dismissed, 430 U.S. 952 (1977). An award of attorney fees to the State when it prevails promotes the policies of the Consumer Protection Act by encouraging its active, vigorous enforcement by the Attorney General. The majority's award of attorney fees to defendants in the present case has precisely the opposite effect. The Attorney General will now be hesitant or fearful to vigorously enforce consumer protection laws out of concern of incurring substantial attorney fee assessments in the event of unsuccessful litigation.
RCW 19.86.080 gives the trial court discretion in allowing attorney fees to prevailing parties in consumer protection suits brought by the State.5 Until today, this court has not had occasion to apply this statute in a case where a *811defendant prevailed in a State antitrust suit as distinguished from a plaintiff. The Legislature has, however, specifically instructed us to look at comparable federal law for guidance in construing particular statutory provisions of the Consumer Protection Act. RCW 19.86.920.
Generally, attorney fees are not recoverable by prevailing defendants in federal antitrust suits. Juneau Square Corp. v. First Wis. Nat'l Bank, 435 F. Supp. 1307 (E.D. Wis. 1977), aff'd, 624 F.2d 798 (7th Cir. 1980). The only federal statutory provision for awarding attorney fees to a prevailing defendant conditions the award on a finding that the action was prosecuted "in bad faith, vexatiously, wantonly, or for oppressive reasons." 15 U.S.C. § 15c(d)(2) (1982). Our application of a similar standard in awarding fees to prevailing defendants would conform to the Legislature's mandate that the Consumer Protection Act be construed liberally to serve its beneficial purposes.
The United States Supreme Court has set forth the rationale for requiring a finding that a lawsuit was frivolous before awarding attorney fees to prevailing defendants in public interest litigation. Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 413-14, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). Christiansburg interpreted the attorney fee provisions of section 706(k) of Title VII of the 1964 Civil Rights Act, containing language substantially similar to RCW 19.86.080:
In any action or proceeding under this title the court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee. . . .
The Court recognized that routine attorney fee awards to prevailing defendants would seriously jeopardize active enforcement of civil rights laws:
To take the further step of assessing attorney's fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his *812opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.
Christiansburg, at 422.
In the case at bar, the majority at page 806 dismisses the Christiansburg decision by expressing its concern that vindicated defendants be treated fairly. It is beyond question that honest businessmen should be protected from abusive, coercive uses of governmental power. But this concern must be balanced against the substantial public interest in insuring that consumer protection laws are vigorously enforced. To assume that because the State did not prevail at trial, its lawsuit was unreasonable or abusive would "discourage all but the most air-tight claims, for seldom can a prospective plaintiff be sure of ultimate success." Christiansburg, at 422.
A number of states have adopted the Christiansburg "frivolous lawsuit" standard in interpreting identical statutory language concerning attorney fee awards to prevailing defendants in public interest litigation. See Dobie v. Liberty Homes, Inc., 53 Or. App. 366, 632 P.2d 449 (1981) (unfair labor practice suit); Whaley v. Alaska Workers' Comp. Bd., 648 P.2d 955 (Alaska 1982) (workers' compensation suit); Palm Springs v. Retirement Builders, Inc., 396 So. 2d 196 (Fla. Dist. Ct. App. 1981) (public utility litigation); State v. Whitingham Sch. Bd., 140 Vt. 405, 438 A.2d 394 (1981) (state civil rights suit). I believe the Christians-burg "frivolous lawsuit" standard is consistent with legislative intent in the original passage of our consumer protection law, and was the law of this state at the time the instant case arose. It recently has been specifically statutorily expressed in the Laws of 1983, ch. 127, § l.6 Under *813such doctrine, the Attorney General is encouraged to vigorously enforce the Consumer Protection Act without fear that loss of prosecutions would result in large money judgments against the State. Conversely, the State would be put on notice that courts stand ready and able to protect legitimate businessmen from abusive and coercive lawsuits.
Conclusion
I would set aside the attorney fee awards to all defendants and remand to the trial court to determine whether the subject lawsuit was frivolous or prosecuted in bad faith. The fact that the majority of defendants initially named in this action signed consent decrees prior to trial suggests that as a matter of law this suit was not frivolous. However, out of an abundance of caution, I would leave that determination to the finder of fact, as each case should be individually considered.
If on remand the trial court finds the subject action against defendants Tupper, Hege and Sullivan to be frivolous, I would hold that judgment for their attorney fees should be reinstated in their former amounts. Conversely, if the trial court finds that the Attorney General's suit is not frivolous, no attorney fees should be allowed such defendants.
As to defendant Black, even though the trial court finds that the Attorney General's suit is frivolous, to be entitled to attorney fees, Black must also win the remanded trial to determine whether he violated the 1974 consent decree. If he doesn't, he is not a "prevailing party" and would not be entitled to attorney fees, even though the Attorney General's action was frivolous or prosecuted in bad faith.
*814I concur with Justice Stafford's opinion as to the other challenges to the trial court's decision.
Dimmick, J., concurs with Dore, J.
Reconsideration denied March 22, 1984.
RCW 19.86.080 states:
"The attorney general may bring an action in the name of the state against any person to restrain and prevent the doing of any act herein prohibited or declared to be unlawful; and the prevailing party may, in the discretion of the court, recover the costs of said action including a reasonable attorney's fee."
Laws of 1983, ch. 127, § 1, p. 619 provides:
"In any civil action, the court having jurisdiction may, upon final judgment and written findings by the trial judge that the action, counterclaim, cross-claim, third party claim, or defense was frivolous and advanced without reasonable cause, require the nonprevailing party to pay the prevailing party the reasonable *813expenses, including fees of attorneys, incurred in opposing such action, counterclaim, cross-claim, third party claim, or defense. This determination shall be made upon post-trial motion, and the trial judge shall consider the action, counterclaim, cross-claim, third party claim, or defense as a whole.
"The provisions of this section apply unless otherwise specifically provided by statute." (Italics mine.)