Edward Lewis Tobinick, MD v. M.D. Steven NOvella, 884 F.3d 1110

Background

Dr. Tobinick sued Dr. Novella (and others) for false advertising under the Lanham Act and various state-law torts after Novella published critical blog posts about Tobinick’s patented spinal treatment.
Many defendants/claims were dismissed in pretrial rulings; the District Court granted summary judgment to defendants on the Lanham Act claim, holding Novella’s blog posts were not commercial speech.
Novella moved for attorneys’ fees under California’s anti‑SLAPP statute and under the Lanham Act as a prevailing party in an “exceptional” case; he also sought sanctions under 28 U.S.C. § 1927 (the latter was denied).
The District Court awarded anti‑SLAPP fees ($36,186, reduced for duplicative entries) and Lanham Act fees ($223,598.75 for work after the Society’s summary‑judgment order), totaling $259,784.75.
Tobinick appealed, arguing the exceptional‑case standard and fee calculations were erroneous, and contending procedural and evidentiary defects in Novella’s fee submissions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Octane Fitness’s relaxed “exceptional case” standard for awarding fees under the Patent Act applies to the Lanham Act	Tobinick contended existing Eleventh Circuit precedent required bad faith/fraud and that applying Octane retrospectively was improper	Novella argued Octane’s interpretation of “exceptional” applies to the Lanham Act because the statutory text is identical and other circuits apply Octane	Court held Octane standard governs Lanham Act fee awards; Eleventh Circuit’s prior stricter standard was abrogated
Whether this case is “exceptional” under Octane	Tobinick argued continued litigation after adverse rulings did not show exceptionality, especially on a then‑open question	Novella argued plaintiffs multiplied proceedings after unfavorable rulings and pursued baseless motions/accusations, making the case stand out	Court held District Court did not abuse discretion; plaintiffs’ litigation conduct rendered the case exceptional
Whether anti‑SLAPP fees were properly awarded and calculated	Tobinick argued awarding anti‑SLAPP fees violated Erie and other doctrines and that fee calculation was inflated	Novella relied on mandatory fee-shifting under California law and submitted fee records (with court adjustments)	Court affirmed anti‑SLAPP fee award and reductions made by District Court; awarding fees was appropriate and not an abuse of discretion
Adequacy of fee‑award procedures and calculation (hearing, local‑rule compliance, fee records)	Tobinick asserted procedural defects: no hearing, failure to provide fee contract, local‑rule violations, and unreliable billing entries/double counting	Novella argued District Court had discretion, relied on the written record, considered objections, and appropriately adjusted fees	Court held District Court did not abuse its discretion: no required hearing, local‑rule noncompliance did not prejudice, and court properly reviewed and adjusted fees

Key Cases Cited

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014) (defined “exceptional” for § 285 as a case that stands out on merits or litigation conduct; flexible standard)
Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017) (merits decision addressing commercial‑speech question in this dispute)
Baker v. DeShong, 821 F.3d 620 (5th Cir. 2016) (applied Octane standard to Lanham Act and described applicable exceptional‑case test)
Burger King v. Pilgrim’s Pride Corp., 15 F.3d 166 (11th Cir. 1994) (pre‑Octane Eleventh Circuit precedent describing exceptional Lanham Act cases as those involving malicious, fraudulent, or willful conduct)
Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332 (11th Cir. 2001) (fee‑award standard and abuse‑of‑discretion review for fee determinations)
Romag Fasteners, Inc. v. Fossil, Inc., 866 F.3d 1330 (Fed. Cir. 2017) (applied Octane principles to Lanham Act fee provision)