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.