Popehat Signal Update: Awesome Team Gets Great Appellate Result in Frivolous Case By AIDS Denier

Way back in 2013 I lit the Popehat Signal to get pro bono help for J. Todd Deshong, a blogger and HIV-positive AIDS activist. Woo merchant and AIDS denialist Clark Barker filed a frivolous lawsuit against Deshong, claiming that Deshong's critical web sites defamed him and infringed his trademark. A legal Dream Team assembled swiftly and formidably, and in 2014 that Dream Team got the frivolous complaint dismissed.

So far so good. But you can't fight vexatious litigants just by winning motions; you have to inflict upon them the costs of their actions. The Dream Team sought attorney fees under the Lanham Act, which allows a prevailing party to get fees in an "exceptional" case. The federal district court denied the request, saying that there wasn't enough evidence that the plaintiff acted in bad faith.

But that's not the right question, the Dream Team asserted. Today, the United States Court of Appeals for the Fifth Circuit agreed. They reversed the refusal to award fees and sent it back for the trial court to decide under the right standard:

We merge Octane Fitness’s definition of “exceptional” into our interpretation of § 1117(a) and construe its meaning as follows: an exceptional case is one where (1) in considering both governing law and the facts of the case, the case stands out from others with respect to the substantive strength of a party’s litigating position; or (2) the unsuccessful party has litigated the case in an “unreasonable manner.” See Octane Fitness, 134 S. Ct. at 1756. The district court must address this issue “in the case-by-case exercise of their discretion, considering the totality of the circumstances.” See id.

This standard is much friendlier to the targets of frivolous lawsuits. It doesn't require an inquiry into subjective bad faith (which judges are often loath to find) and allows consideration of both the objectively meritless nature of the claims and the methods used to litigate. That will make it easier for other Dream Teams to get attorney fees when censorious plaintiffs abuse the legal system to suppress speech.

Congrats to Paul Alan Levy and Gill Sperlein for this appellate win.

Last 5 posts by Ken White

Comments

  1. AH says

    Happy with the ruling but I have one question… WTF is an "AIDS Denier"?!

    I mean, Holocaust deniers… I understand the insane argument pictures can be forged and no one would really do that so it must be a frame up. It's a stupid position, but I can understand how someone with a healthy dose of bigotry might come to it.

    AGW denier, there are a number of factors in play, not all of which are human. Plenty of cyclic-decade or longer patterns at work and people are just bad at seeing slow changes over decades. It's not too hard to understand where the conclusions are coming from.

    But AIDS? We can go right now to any of 37 million people, take their blood, stick it under a microscope and BAM! you can SEE HIV. If he really doesn't think it exists, there's a simple way he can prove his theory (although it would end rather poorly for him). I mean, I guess I can understand in third-world countries where microscopes are not readily available, but we live in one where people get them because they are board and want to post pictures of tiny things on the internet.

  2. KeithB says

    AH:
    There are people that deny that HIV causes AIDS. They maintain it is lifestyle and other health factors that cause AIDS.

    Shoot, there are people that deny the germ theory of disease!

  3. BuriedInBureaucracy says

    KeithB, AH:
    Research into HIV drug toxicity is part of my job, and I have a feeling I know what happened. It's very true that lifestyle and other elements are factors in the effect the virus will have, there's a lot of published literature on that. Of course, facts can be twisted, and it's not that far a jump from "lifestyle is a factor in AIDS progression" to "lifestyle causes AIDS", especially in the hands of someone who might not be the most scientifically literate, even more so if it supports their condemnation of whatever "lifestyle" that may be.

  4. BradC says

    Right, they don't deny that the HIV virus exists, they deny that it develops into AIDS, or they deny that the disease we call aids is related in any way to the HIV virus.

    Just search for "what is AIDS denialism" for more details than you probably would like.

  5. Encinal says

    @AH

    But AIDS? We can go right now to any of 37 million people, take their blood, stick it under a microscope and BAM! you can SEE HIV.

    Not an optical microscope. And what does seeing HIV prove, anyway?

  6. Trent says

    @BuriedInBureaucracy

    I suggest you google the case or follow the above link to the original popehat post. The "denier" in this case was involved in making money by denying AIDS and HIV are related in court cases where people infected are suing the infector. The blogger in this case made a post ripping apart the basis of the "deniers" attempt to make money lying on the stand. The denier then sued the blogger to try to silence them because it was presumably hurting their attempts to act as an expert witness in civil and criminal cases where someone infected another person with HIV either deliberately or negligently. The denier in this case, Clark Barker, had made a bit of name testifying for the defense in criminal trials where the defendant had knowingly infected other people. Clark Barker is the kind of human slime you wouldn't want to associate with.

  7. BuriedInBureaucracy says

    @Trent
    I read it before I posted. I agree with everything you're saying. That's why I included the comment on "not agreeing with their lifestyle". Just because I understand him, doesn't mean I approve, condone, or am not disgusted by it.

    @Simon
    Visually "seeing" HIV might not prove that much in and of itself, but quantifying viral load versus disease progression or against leukocyte analysis sure can tell a story. As can in vivo experiments where there is no "lifestyle" or any other factors to consider.

  8. AH says

    @BuriedInBureaucracy: I suppose that makes some degree of sense (under a loose definition of "making sense" which I kind of established we were already under with the other deniers).

    @BradC That's the bit that confused me. Even if they want to argue HIV doesn't cause AIDS, so what? Is there argument that it shouldn't be treated just because they don't think it causes the syndrome which is… disproportionately present in those who have the disease?

    @Encinal: Up until 2011 you were correct, but advances in optical microscopes have make seeing viruses with them possible. It's called a "microsphere nanoscope" and uses a conventional optical microscope and adds a nanoscale silicon dioxide sphere on top of the slide to further focus beyond the ability of the base equipment. While as far as I can tell this technology is not widely available, I'm kind of surprised it's not since it was invented half a decade ago.

    At any rate, I suppose I should thank you for explaining one of the few bits of human lunacy I didn't get. Or should I? :p

  9. Matthew Cline says

    @BradC:

    Right, they don't deny that the HIV virus exists,

    Actually, there are people who deny that the HIV virus exists (or, at least, say "there is insufficient evidence to support the hypothesis that the HIV virus exists"). From what I remember, it comes down to an argument about what does or doesn't count as isolating a virus.

  10. En Passant says

    Simon says May 3, 2016 at 1:55 pm:

    Thanks to then President Mbeki of South Africa, over 300,000 people died due to this idiocy.

    Mbeki relied on the generally scientifically rejected opinions of UC Berkeley's Dr. Peter Duesberg. [wikipedia link]

  11. Dave Crisp says

    @AH

    That's the bit that confused me. Even if they want to argue HIV doesn't cause AIDS, so what? Is there argument that it shouldn't be treated just because they don't think it causes the syndrome which is… disproportionately present in those who have the disease?

    Basically, yes. One recurrent strain of denialist argument holds that HIV itself is a harmless virus that the body is perfectly capable of dealing with on its own, but that the symptoms of "AIDS" are actually side-effects of the (admittedly not-too-pleasant) drugs used to treat it.

    I just threw up a little in my mouth typing that, FWIW.

  12. BuriedInBureaucracy says

    @Dave Crisp
    There is truly nothing pleasant about the off target effect of NRTIs, or even to a lesser degree NNRTIs, but my question is, how does one think the symptom predates the use of the drug? People that present with AIDS symptoms, then are treated, what's the denialist response to that? I'm asking you because you appear to know somethings about their arguments, not because I'm assuming you are one.

  13. Vince Clortho says

    An appeal on the denial of an attorneys' fee award? That's tenacity all right.

  14. Encinal says

    @Trent

    The "denier" in this case was involved in making money by denying AIDS and HIV are related in court cases where people infected are suing the infector.

    That's a bit of a confusing sentence.

  15. Dave Crisp says

    @B.I.B. You're asking me to explain the thought processes of the fractally wrong. If you really want me to do that, I'm going to need two tabs of LSD, an inflatable crocodile, and a copy of the Time Cube website printed on vellum.

  16. unimportant says

    @Dave Crisp: Would papyrus work? I found a cubitemporal scribe, but he's vegan.

    Anyhoo, congrats to the valiant Popehat Signal responders, and I hope this will make it easier for others faced with frivolously filed villainy to prevail!

  17. Bryan Webb says

    Subject: Whatever happened to Prenda Law's appeal of Judge Wright's sanctions?

    Hi Ken

    On 2015/05/04, oral argument was held on Judge Wright's sanctions in the Prenda Law case 13-55859 Paul Hansmeier, Esq. v. John Doe.

    http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007584

    (It's worth a watch! IIRC, Pregerson lays into Prenda's lawyer.)

    As far as I can tell, it's been just over a year since the oral argument, but the 9th Circuit website does not show any published or unpublished opinion. Shouldn't the opinions be published (or unpublished) within a year?

    IANAL, so I don't know how to find out what the status of this case is. But a year seems like a long time.

    Is it possible that the parties somehow withdrew the case after it was submitted? Is this allowed?

    I hope you can look into this, and if worthy of public notice, publish something about it.

    Thanks
    –Bryan

    P.S. (Naturally) I enjoy your blog; I check it regularly.

  18. Christoph says

    This has me even more convinced that the benefits of a "loser pays" system greatly outweigh its drawbacks.

  19. kmc says

    @Dave Crisp: Would papyrus work? I found a cubitemporal scribe, but he's vegan.

    *does a happy little jig*

    Ken, commenters, &. al: my meds are still kicking in, so I'm going to ask for an ELI5 translation. Does that mean that, basically, the appellate court said it should go from the "bad faith" standard to the "Well now, that sounds like some bullshit" standard?

    Edit: huh, where did my end quote go?