morning your honour's want to win o'brien for the appellants may please the court this case involved five published attacks by defendants against plaintiffs the district court expressly excluded three out of the five attacks in its fee analysis the district court was precluded from taxing exceptional case fees without taking into account the totality of the circumstances that this court definitively held that secondary promotional uses of speech can convert the speech into commercial speech the three attacks the district court did not analyze and were secondary promotional uses of the first two attacks so the district court did not look at the totality of the facts through the lens of the governing law  which missed the point where i had to answer point of those that if you're going to if a district court is going to tax fees exceptional case fees for unreasonable litigation or your case is too weak or you should have known the district courts obligated to actually look at the evidence that was being argued in corresponding with the governing law where they exist record held twice what you shouldn't have commercial speech here and assess only for some of the the legal work done there after correct that is a correct statement your honor but the the nuance is a little different the district or does it move but there's no reason for it to look back right only going forward from that point that's relevant no no your honor what the district court thought was that we should have known that her commercial speech rule the district court's commercial speech ruling would have been the same in summary judgment and that's just not true the one example i would give your honor is podcast for seventy two and that's docket entry one seventy seven dash eight this is something the district court did not consider and i would also refer to your honor's docket entry to seventy two dash twenty six it's a social media workshop document in the social media workshop document novellas company talks about how pod cast for seventy two which is document one seventy seven dash eight is secondary promotional use of the first attack using of the second attack this is quoting from the social media document this is quoting  from the defendant's side facebook is our main social media entry point you can think of it as the top of the funnel where we convert people who know nothing about us into a like that like puts us on their feed or they might click into one of our posts many of our posts are news items on the s g you website i started a news page called su news we get ad revenue from that traffic as well as some conversions over t podcast listeners podcast for seventy two which is documentary one seventy seven dash eight shows exactly this the second attack in this case is listed as a news item in a commercial window this court said in its in the panel opinion that speech in a commercial window is can be secondary promotional uses the judging ginsburg the point i was trying to make is that the district court didn't do this analysis with respect to the evidence the court mistakenly thought that we didn't present any new evidence as the case progressed and i want to be clear about the orders that your honor was referring to because it seemed like the district court confused the parties in the fiord or there was a commercial speech ruling as to a nonprofit in march of two thousand and fifteen that defendant novella does not own in the field order this is docket number three three three page two the district court thought that defendant novello owned that nonprofit the next commercial speech ruling was on the injunction against  dr novella in that ruling the court said i'm not going to find commercial speech because there's no economic motivation subsequently the district court allowed us to present evidence to support our claims the whole point in opposing summary judgment was showing economic motivation and in fact we succeeded in doing that we succeeded in showing the district court there was economic motivation because that with a district court then sa ok there's some new evidence but it's not strong enough economic motivation so judge ginsburg your question i think implies that somehow we should have known to stop at the injunction  three different times page nine page twelve page thirteen at least as far as the society at least as far as the society at least as far as a society we thought that that was a signal that we had a different argument with respect to dr novella we lost the injunction but at that hearing the court think the parties talked about how complex the issues were and allowed us to proceed the procedural history subsequent to the injunction your honour's dr novella asked for the case to be dismissed twice based on the commercial speech issue asked for sanctions stop the case based on commercial speech the court denied it stopped the case sanction these these  these parties let me ask you a question i know you're in the middle of your argument but something preliminary to the merits you say in your brief that every single decision made by the district court here is subject to denote a review i'm not sure that that's an accurate statement i mean you're saying that the district court's finding entitlement aside to the number of hours and to the fee on an hourly basis all those are didn't over we just go back and do everything all over again without any deference on anything whatsoever well as far as the second part of your honor's question i think your honor could deny fees and say that the district court should not have switched from the bad faith standard during the case on one party to the octane fitness standard as to dr novella that was not fair i'm not  and your honour's not disputing your argument that with regards to some issues there are at the very least mixed issues of law in fact or there's an abuse of discretion standard but you're suggesting that in a fee review we're doing everything to know everything is plenary and there's no deference on anything well your honor there were clearly erroneous conclusions of fact in law i mean with respect all winter but erroneous decisions on facts don't trigger denote or review even if you're correct about them what do they normally trigger well it depends on if it's an unreasonable clearly erroneous conclusion of fact it is the nova you're on  hobo you have to cut in a normal setting on an issue of fact you have to normally convince the appellate court that there is clear error and that's a very different standard than the novo review which is heller explained it went through the billing entries and talks about how in comprehensible they are they were double counting their charge the client twice i'm not suggesting that you're either right or wrong on the merits of your ultimate arguments what i'm questioning is your assertion in the brief that everything gets to no over review i'm just not sure that that's accurate i would i base that on the what i believe to be clearly erroneous view of the procedural history and readings of the orders and switching from bad faith on one party to opt in fitness on another party in the same exact case they tell me about the the anti slapp fees which are lesser in scope but you're appealing them as well why was there error in granting fees with regards to i think only one of the corporate defendants on that correct your honor the there are several reasons we articulated in the in the briefing one of them is the double billing and the makes the billing and comprehensible and under the anti slapp law in california that's a basis to deny fees and i would refer your honour's to john heller's declaration doc number three zero four dash three there are other reasons why this last motion this fees most in motion should have been denied which we articulate and i'm running out of time i can list them your honor there in our brief but if you could i'll i'll just take my stop the case the motion had an improper purpose because the motion itself asked for the entire case to be dismissed including the lanham act claims that's docket number ninety page twenty  doing so on the and he slapped it looks like to me that you the district court heard all of your objections to those fees and really it incorporated all of your objections into her award i mean i think it moderating of it was that she reduced the any slap fees in every way that you ask am i wrong about that you're partially correct your honor think the district court took our experts are assuming argue when do if you're going to give fees this is the amount i give the district court took john heller's amount write it down from one sixty nine hundred sixty nine thousand panel found that there wasn't a miscarriage of justice in the application of anti slapp statute in the underlying proceedings the panel did not find with respect to fees and so we would ask that the erie doctrine prevents  award of fees not withstanding what it did to the procedure of the case that fees would be rejected is that a suggestion that fee shifting statutes under state law tried in diversity in federal court can never yield an award of attorney's fees i don't know that i go that far your honor well what is the difference between that general broad proposition and your argument here because fees your honor were based on an anti slapp procedure that did not take into account the entire evidence so the ruling happened before a large part of the discovery was done and before evidence of actual malice that we believe was evidence of actual malice came into the case we also believe that it hindered the procedure for allowing discovery in federal court are more plenary and you get to develop your evidence till the end of the case so i think it depends on the statute but here we're saying fees were based on an award that didn't take into account the entirety of the case which we believe please the cork morning my name's darren spillman and i represent the dr novella and as a matter of just short housekeeping i want to thank everyone for allowing us to go first and thank the other councils who approved that as well if it is not going to as jordan had just questioned it seems clear to us that the only question before the court the only question is a hybrid of two to issue one whether the district court abused its discretion as we believe there's absolutely no abuse of discretion standard here in finding that this was an exceptional case under the lanham act applying octane fitness and then is that decision to apply octane fitness just to pure question of law whether you borrow the standard from pat law and exceptional cases and use that in the lanham act scenario after octane fitness well to my understanding i think the eleventh this is one of the last circuits that has not affirmative made a statement about the dual applicability of the lanham act under octane fitness although the octane fitness case clearly states it in nearly every other circuit that we've we've seen says yes in fact lana cases use the same legal standard that applies we we have the decision to award fees and to that standard it seems to me might be an abuse of discretion standard but the ultimate question the initial question of what standard to apply at all is legal no but i believe that it still would be an abuse of discretion on the amount if you're asking i'm talking  about the decision to choose an a political legal standard that has to be a legal question right i believe that to be a legal standard a legal review but i don't know that there is any question that  the district court was incorrect in using it as in determining the fee applicability of octane fitness under the lanham act as it relates dr novella and so we're faced with a question of of not not it was it and ultimately an abuse of discretion to to award him the amount of fees and to apply it again there was very little if this if this case took so much effort on the part of counsel in the court to figure out and a thorough published opinion from this court on the merits appeal why is the case exceptional from a just a general perspective well it's exceptional because from the get go any reasonable reading of this would see that this was a clear attempt to quell scientific debate and as judge martin was present in the appeals in the first m decision it was clear and the the merits appeal made it abundantly clear that this was no chance of commercial speech the district court said it multiple times this court said it in its in its merits decision and the question of how much time and effort goes into a case cannot be and should not be what would ultimately have the potential of undoing an exceptional case just because there's extra work to be done or even some complex no i'm suggesting that the issues were difficult difficulties doesn't doesn't extinguish the possibility that it's still an exceptional case why is it exceptional and it's exceptional because this was a it was the appellant were provided multiple multiple signals from day one by all the motions but even from the moment that the district court entered its summary judgment order as it relates to society making it clear that the speech at issue was not commercial speech you know but that was not an issue that had been decided by the circuit so you're suggesting that the moment that a district court signals to a party it disagrees with is litigation position and the district court at the end of the day turns out to be correct that can be an exceptional case he has in a party entitled to test as long as it has a good faith basis in the claim is not frivolous to test the validity of its legal proposition all the way through appeal if the issue is open in the circuit sure but under that scenario then in any case that went through a full trial or even to appeal because the the right to appeal is always available so in that case we would never see an exceptional case come through i'm asking you then what what does an exceptional case tell me in two sentences an exceptional case is a case which a case as octane fitness explained what which stands out from the rest and in this situation a case where where the appellant's tried to quell scientific debate and tried on multiple occasions to up and through arguably a defamation case but instead tried to use the which this court clearly rejected then on two attempts to appeal one through mandamus and one through assert the supreme court refused to hear all of those are indicators to us that this was an exceptional case it was again and again one that shows every aspect of being exceptional there was no indication anywhere in the record that that there is a supporting factor law to indicate that the lanham act was going to be able to uphold and attempt to silence scientific debate that's what makes this exceptional among the other things listed in the briefing but but the number of times with which including the  the summary judgment of the codefendant and then the polluter injunction were so twice early in the case the judge signalled to two appellants about what they needed to know but importantly if they had prevailed against you would it be an exceptional case awarding fees against you no i don't believe so why not because their position know they had one they want to get steve i'm flipping the stakes so if they beat you in this case exceptional case for the same reasons and the district court had told you from the beginning listen i'm not going to enter judgment against you right now on the pleadings or this but you're on a difficult slippery slope and i see you losing at the end and at every stage the district court tells you you're getting closer to losing you're getting closer to losing but you continue and you lose and you appeal and the court affirmed this court affirms is an exceptional case against a losing defendant in a lan case i certainly would would would have to look at the the specifics of how a you claim that this was not commercial in any way shape or form lanham act didn't apply this record disagrees this co disagrees do you get hit with fees for an exceptional case if there were if there were decisions throughout that had that had signalled it in the same way that the decisions continued again and again then yes i believe that's a possibility but you don't get to test the validity of what other courts have said in a circuit where the question is open well i think what what ultimately answers your question is that the judge actually edge here to her own her her own  restraint in the case because she only applied she only applied the fees to begin after she signaled after an obit but the district judge judge martin and i have been district district judge tells you i am really sure of my convictions and i think you're going to lose then that triggers the possibility of an exceptional case of the lanham act i think that is one of the ways to trigger a yes to get to give a party an understanding that their position is not based in in sound fact or in law yes we that the supreme court knocked in fitness was gave it gave it its broad reading on purpose we believe and so i think that that  coming back to what you said earlier just because someone has the right and does appeal and allows a panel like yours to take a look at whether or not this was proper does not magically undo in fact that it was exceptional so yeah we don't we don't see that that that that changes the analysis in any way and they they certainly have the right to make such a such request you first real reeled off a litany of reasons for think for thinking it was an exceptional case then we have this colloquy on the holding or the preliminary holdings with regard to commercial speech what were the factors that the district judge mentioned in deciding it was an exceptional case i have to look back at the briefing i apologize and i don't have that directly ready but what i would good i would say is that the court the court did walk through its analysis and and what i know that that  seems to believe that there was a requirement to to go through every single aspect of the of the lanham act in order to to make such finding but as this court in the merits appeal made it abundantly clear that is not needed in fact this specifically said in its in its merits decision quote because the articles are not commercial speech they cannot be subject to lanham act liability as commercial advertising or promotion accordingly we need not reach the other elements of a prim false advertising action the court was this court in the merits decision had the same apparent vision and made the same conclusion that the district court made that one need not go through the entire thing because otherwise what you would end up with is an advisory opinion we don't want that we don't need that so back to your question of what will where's the threshold you know the threshold is even this court in the merits appeal was not prepared to walk down the entire path because it was clear to this court if the if the district court had not been so adamant i mean getting back to just ginsburg question the only reason the district court gave for awarding fees as an exceptional case was a procedural history of the case and that had told the parties twice what its views were on the kershner speech aspect of the case and the plaintiff didn't stop and we don't believe that that was the use of this court's discretion we think that was completely reasonable and sound for the court to be able to make that choice the court the district court was was sufficiently aware of all of the facts in the procedural history that i've gone on and on and on it to the point where although i'm arguing  early in the case i was counsel for a previously dismissed co defendant s j u the judge knew all of the parties that were there and all of the dismissals that occurred again and again and again so back to your earlier question yash i don't believe the district needed needed more if there was a need for more obviously if there is an appeal so we can we can review what more could have been needed but i don't see that there was an abus discretion if the district court had not told the parties its views and just simply granted summary judgment in your client's favor would it be an exceptional case at that stage in the case yes it still would have been so how do you mean that stage had to retroactively award fees even though the district court hasn't telegraphed to views of the merits i don't think the court is required to telegraph its views i know that's my question to you so the district court says nothing to the parties they engage in discovery the court doesn't see them until a summary judgment hearing and enter summary judgment in your client's favor i believe it's happening tells the parties what its view of the law is sure i still believe it's possible in the reason is because one can look at at other at one could look at other aspects and so in that situation if there was no telegraphing by the court and if there was just a review of of the for a list nature for instance of the case to try to to try to crowbar in a free speech  is a three thirty three page fifteen furthermore after the court had twice ruled against plaintiffs on the commercial speech issue the plaintiffs repeatedly sought to multiply the proceedings by adding new parties and claims in that it seemed to me that was as much of a matter much a part of the reason as it may be more a greater part of the re and that looks that looks like an accurate description of the case the the  trying to add back my prior client s do you into the case after it was dismissed so at the end of end of all this and back to your question to jordan's even in this situation so even if there was not specific dollar th continued multiplying of the litigation which which the other side would have you believe that the complexity of it makes it not exceptional i would argue the reverse the complexity of it could added to the exceptional nature that it was doubling down again and again that the court said so that that it was a constant and continual attempt to find a way to exert its power to silence scientific debate and that's worrisome and amount of time so often quickly unless you have another question this is a this this is a question of d presented a fervent defense this court ultimately upheld the lower court's decision and the supreme court denied any review and now dr novella is going to be potentially panelized after being awarded fees and again after being awarded fees on the next request which was recently entered in december by the lower court on the appeal and what appellant would have you do is make a a person who's engaged in scientific debate have to burden and bear the cost of such a fight because of a claim that it wasn't exceptional  somehow we find that to be improper you know i thank you thank you very sometimes a plaintiff's lawyer properly and skillfully drops the complaint so that it's a meal in from a twelve b six motion and you're going to have to play your cards at summary judgment after discovery there was well you can't you can't always file a twelve b six motion well that's their that's their argument from the beginning this was this was a case that should have been dismissed on commercial speech they didn't answer for nearly you need after that but don't you need factual development and support to figure out whether or not this was commercial speech or not exactly your honor and that is the that is the problem you couldn't have filed a twelve b six motion no your honor well the factual support shows that this was commercial speech i would point your honour's would start with your honor's going to relive again no i'm not going to relate a gate but if you look at footnotes thirteen and fourteen of the panel's opinion your honor there was a tremendous amount of evidence this court did not consider the district court didn't consider it this is why i was talking about podcast for seventy two hour can fees be assessed without looking at the evidence in the case well that the evidence wasn't considered and how can we how can we assess fees without looking at the evidence going back to one of the points that judge ginsburg made with your colleague the district court after laying out the procedural history and indicating that your client had decided to press forward despite the district court's view of where the law was going also sought to multiply the proceedings by adding new parties and new claims and after this was unsuccessful then your client moved for summary judgment and then attempted to salvage its case by moving for sanctions and accusing dr novello of perjury an accusation that the court found no evidence to support why is that an improper factor for the district court to have considered well as far as the last part your honor when we found material in consistencies between dr novellus sworn statement in deposition and e mails we had evidence to support it the district court never found no evidence to support the district court looked at a clear and convincing standard but that is incurred that is incorrect that is not what the district court help this record did not say no evidence to support and in fact the panel and looking at this found in consistencies so that is just fundamentally wrong we had evidence we had evidence that his declaration was materially inconsistent and that his deposition testimony was materially inconsistent with the evidence so there was evidence there was evidence as far as i think i might have heard you wrong you honor saying that we move for summary judgment the appellant's never move for summary judgment however no novello move for summary judgment on the commercial speech and that's an important point your honor because i i believe that the district court was encouraging us to proceed not telling us not to proceed and this is one of the examples dr novello move for summary judgment twice the move for summary judgment the first time the court said a hearing and then he withdraws the motion and then in the in the court allows  to withdraw the motion so that we could do discovery in the case it was a summary judge a motion based on commercial speech the district court took down the hearing land allow them to withdraw it so we could do discovery the court allowed us to do discover and as far as this panel's opinion i believe technically the panel said that dr novella was entitled summary judgment however our whole theory was a secondary promotional use  theory about having speech in a commercial window the district court never accepted that theory this court accepted the theory the panel in footnotes thirteen and fourteen didn't look at our evidence but i would say that our legal theory was upheld so i would think i think from a legal standpoint we were we were upheld as far as the way the district court looked at the commercial speech issue each time it was different it's time for the summary judgment opinion your honor the district court looked at how much money dr novello was making from his for profit entity so took into account his for profit dealings and said two hundred thousand a year he's got a he's got a lot of expenses it's not a strong enough economic motivation the district court had never looked at that this that way the court the district court of the plenary injunction hearing said that we didn't present any evidence of economic motivation summary judgment we we we got the district court to see the economic motivation but it wasn't strong