Appeals Court Says Trademark Bully/HIV Denialist Must Pay Defendant's Legal Fees

from the beating-back-the-bullies dept

Almost three years ago, a team of pro bono attorneys (D. Gill Sperlein, Paul Alan Levy, Gary Krupkin and Neal Hoffman) took up the defense of Jeffrey DeShong, an HIV-positive blogger who had been served a bogus trademark infringement lawsuit by Clark Baker, a retired LAPD officer who spends his free time defending people who have hidden their HIV-positive status from sexual partners.

Baker had no legal basis for his claims, but was obviously hoping airy claims of Lanham Act violations based on URL similarities would be all that was needed to shut up a vocal critic. He was wrong. The lawsuit was tossed in the pleading stages by the district court and that decision was upheld by the Fifth Circuit Court.

What the appeals court did not address the first time around -- shifting legal fees to the vexatious litigant -- has now been addressed. The Fifth Circuit Court of Appeals, at the urging of DeShong's defense team, has taken a new approach to its standard for fee shifting in obviously bogus lawsuits. Paul Alan Levy explains:

The federal court in Dallas readily dismissed the trademark claims on the face of the complaint, then declined to retain jurisdiction over the state-law defamation claims; in that way, the trial judge avoiding having to address DeShong's anti-SLAPP motion. But even though our path to overruling the Fifth Circuit's rule got easier when the Supreme Court held, in Octane Fitness, that the term "exceptional cases" in the Patent Code is not limited to lawsuits brought in bad faith, the trial judge was unwilling to buck clear Fifth Circuit precedent: he denied our fee motion relying on the Fifth Circuit's bad faith standard. Today, however, the Fifth Circuit held that its previous bad faith standard (and its requirement of clear and convincing evidence) has been effectively superseded by the Supreme Court's ruling in Octane Fitness. Henceforth, "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.'"
This new standard will make it easier for defendants facing SLAPP-type lawsuits to retain counsel, as there's a significantly better chance for fee awards once courts have examined the case. Levy, however, notes that this won't help much in this lawsuit, as the trademark bully filed for bankruptcy while the appeal was pending. This not only means it's highly unlikely the $50,000 in fees requested will ever make their way to DeShong's defense team, but the filing also allowed Baker to drag out the appeals process for an additional year.

This outcome doesn't help the defense team's bottom line but for free speech defenders like Paul Levy and his partners in this case, the precedent set here is the bigger win. This should act as a deterrent against future acts of censorship-via-litigation in the Fifth Circuit's jurisdiction and lays another brick on the path towards a unified judicial stance against censorship through litigation.

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  • icon
    Dan (profile), 4 May 2016 @ 3:51am

    Headline is incorrect

    No, the Fifth Circuit didn't say that Baker et al must pay. They said that the trial court used the wrong standard in deciding whether Baker must pay, and sent the case back to the trial court for it to use the correct standard. That standard will make it much easier to be awarded fees, but no fees have been awarded yet.

    reply to this | link to this | view in chronology ]

  • identicon
    Sunhawk, 4 May 2016 @ 7:16am

    Bankruptcy isn't a shield against future expenses though - and I'm fairly sure it's of limited effectiveness against fines levied by a court anyway.

    So it shouldn't be too much harder then usual to get Baker to cough up the money unless he has no income.

    reply to this | link to this | view in chronology ]

  • icon
    Monday (profile), 4 May 2016 @ 10:59am

    I wanted to reply to the both of you...

    Nevertheless, is the Fifth Circuit a higher court? and does filing for bankruptcy, while pleading a case, and then seeing the uncomfortable outcome negate the chances for that bankruptcy's success? and... was it a Chapter 11 or 9 Bankruptcy? and, Jeffrey DeShong should be able to receive property of assessed equal value or something like that right? and if it's Chpt 11, he (Jeffrey DeShong) should be able to recover after the lawyers figure out what his "stuff" is worth, right?

    I have a shitload of more questions, but no time now...

    Cheers :)

    reply to this | link to this | view in chronology ]

  • identicon
    J Todd DeShong, 5 May 2016 @ 6:14am

    Bully has Billionaire Backer

    Thanks for the excellent write up on my case. The bully plaintiff here, Clark Baker is backed by billionaire Robert Leppo who funds Baker's bad behavior. Baker filed bankruptcy to protect himself not only from my suit, but from a $1.4 million judgement against him in another case. There is a hearing in L.A. May 24 to see if Baker has misused the bankruptcy system and it looks like the judge is leaning toward throwing Baker's bankruptcy out. I have written about Baker and Leppo's relationship: th-robert-d-leppo/

    reply to this | link to this | view in chronology ]

    • icon
      Monday (profile), 5 May 2016 @ 8:41am

      Re: Bully has Billionaire Backer

      J Todd DeShong, thanks for showing up for class... :) That answers all my question. All being, "Baker's "Bankruptcy" is an abuse, and it will get thrown out, right?
      It answered the one big thing that was getting to me - that Baker was going to get away with it. Nevertheless, the Rooster never crows until dawn, so all I am doing is hoping for the best in your case.


      reply to this | link to this | view in chronology ]

    • icon
      Monday (profile), 5 May 2016 @ 9:28am

      Re: Bully has Billionaire Backer

      First, WOW!!! We have seen what has been happening with the Peer Review process over the last two and a half decades. Even this has been corrupted, and with billionaire backing, it was an inevitable outcome to see literal shit published. The scientific credibility and legitimacy in question, is a great way for the man - Peter Duesberg, to round out his career… do you remember Paul Kammerer, and the discussion he had with a hanfgun after somebody falsified his data – which I still firmly contend was done without his knowledge. The career of this man (Duesberg) isn't quite as stellar as Kammerer’s was, bio-speaking of course.

      Dr Mark Wainberg’s call to jail AIDS Dissidents is a little extreme, and frankly, unconstitutional. Remember, “Brute force crushes many things…”. AND, it is always the foot soldier whom appears to set up the new Kingdoms, Machiavelli was sure to make special notes of these Foot Soldiers.

      What really surprises me is the unbelievably large sums of money being “donated” to these “HIV deniers” like Kalichman, Duesberg, and of course… Baker.

      Can we guess who they will probably vote for on November 18th? That is if Trump stays out of someone’s gun sight.

      PharmaSluts and Drug Whores are terms I have not seen, and most likely for good reason, they do not meet the corpus delicti. There were sooo many freakin links in this trashy waste of my time, I eventually left it for other trash – thanks for that.

      • Making and maintaining defamatory websites about Dr. Murtagh.
      • Spoofing Dr. Murtagh’s email with fake accounts, including one purported to be me.
      • Pinging Dr. Murtagh’s cell phone.
      • Stalking Dr. Murtagh’s girlfriend in Atlanta.
      • Serving fraudulent subpoenas.
      This honestly sounds like a cult – Scientology-like, but lacking the Tax-Free-Exemption Scientology enjoys.

      Farber, Kalichman, Duesberg, and of course… Baker, through the help of Billionaire backing, have obviously conspired to create this Pandemic and one can only hope there is justice on the side of fact and truth.

      Thanks for the links in your post.

      reply to this | link to this | view in chronology ]

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