Previous
discussion here. Based on its
successful Lanham Act false advertising trial result, Eastman sought attorneys’
fees and costs (the latter of which it got as a matter of course). The court found the case unexceptional, at
least in the relevant way, and declined to award fees. Exceptional cases require underlying
violations that are “malicious, fraudulent, deliberate, or willful,” and the
required level of culpability is high and must be shown by clear and convincing
evidence.
This case was really nothing more than a battle of experts,
with testimony on both sides. Though the jury found willfulness, that didn’t
bind the court on exceptionality. The
case required jurors to “sift through complex scientific testimony,” and the
court would’ve upheld a verdict for defendants as well. “From the evidence presented at trial,
reasonable jurors could have found either side’s scientific testing to be
flawed.” Defendants’ belief in the
validity of the testing and data underlying their statements was central to
their defense theory, and a good faith belief should generally preclude a
finding of exceptionality. “Defendants
presented considerable evidence demonstrating their good faith basis for
believing the statements they made were true,” except possibly for the claim
that plaintiff’s product Tritan itself was harmful to humans (um, seems like a
pretty big “except”!). Though no witness
was willing to testify that Tritan was harmful because the relevant testing
hasn’t been performed, that exception didn’t make the case exceptional in light
of all the facts and circumstances.
Along with the “speculative nature” of liability, Eastman’s
failure to prove money damages was also suggestive of nonexceptionality. Eastman’s expert didn’t survey plastic
manufacturers—Eastman’s direct customers—but instead surveyed end consumers,
and her methodology was seriously called into question. (The court also criticized her fee, “more
than $65,000.00 for a basic Internet survey.”)
Eastman also asked the court to consider defendants’
litigation conduct, but the Fifth Circuit hadn’t endorsed that as a
consideration: “the Court believes the safer course is to rely on the actual
evidence rather than the squabblings of the attorneys who represented these
parties.” Even if it did consider
litigation conduct, the court wouldn’t find the case exceptional. There’s nothing exceptional about “petty
discovery disputes and run-of-the-mill litigation tactics, particularly where
both sides have willingly run up their fees to the tune of several million
dollars.” The case was aggressively
litigated, but “neither side was sure what this case actually was until the
trial was over. Pleaded causes of action, defenses, and other issues melted
away as the actual evidence failed to provide any support for the parties’
asserted positions.” Though Eastman
failed even to seek money damages from the jury, before the trial its
settlement offer was over $5 million plus other relief. “Defendants had at least five million good
reasons to proceed to trial, as even a total loss at the hands of the jury left
Defendants in a better position than settling this case would have.”
In a footnote, the court snarked that this was an
“exceptional” case in the lay rather than legal sense, since the lawyers spent
more than $7 million on a one-issue case with no damages; the jury resolved the
issue in under four hours of deliberation but the parties filed over 185 pages
of post-trial motions; and there were multiple discovery disputes that
contributed to the “needlessly contentious” litigation. “And who could forget
the parties’ generous decision to extend the dispositive motions deadline by
five weeks without seeking leave or even giving the Court notice, in violation
of this Court’s rules? Truth be told, this case has been, and continues to be,
an exceptional example of precisely how not to try a lawsuit.” (Eek.
I have to say, I’m a bit more sympathetic to plaintiff here, given that
defendant’s ads accused it of being harmful to people—that’s pretty
disparaging, if untrue, and I can see why they would’ve considered it
bet-the-company litigation. That doesn’t
mean the case was pleasant to try, or that every part of the burden can be
placed on defendants’ shoulders, though.)
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