Bayer v. Dow was decided on March 17, 2017 on appeal from the District of Delaware. There, after finding for defendant Dow on summary judgment, the district court awarded Dow attorney fees, concluding that plaintiff “Bayer’s weak positions on the merits and litigation conduct supported a finding that this was an exceptional case.” Bayer appealed.
The Federal Circuit affirmed the district court’s grant of attorney fees.
A district court’s §285 attorney fees decision is reviewed for abuse of discretion. The court abuses its discretion by making a “clear error of judgment in weighing relevant factors,” or by “basing its decision on an error of law or on clearly erroneous factual findings.”
The district court did not abuse its discretion in concluding that Bayer’s positions on the merits and litigation tactics made the case exceptional. Bayer’s positions “were directly contradicted by the record evidence Bayer had obtained through early discovery and [the evidence] Bayer should have made every effort to discover before filing suit.” Per the district court, “Bayer marched onward with a view of its case that was not supported by its witnesses.”
According to the district court, Bayer failed to perform a diligent pre-suit investigation. Bayer’s own witnesses testified against its legal position. The district court didn’t err holding that “had Bayer conducted a more searching pre-suit investigation—at least of its own easily-obtainable evidence—it would have not filed suit.” Nor did it err in treating pre-suit diligence as a factor in the totality-of-the-circumstance inquiry.
The district court didn’t err in finding Bayer’s litigation conduct objectionable. For example, Bayer filed for a preliminary injunction during targeted discovery “on the very [issue] that would prove fatal to its case.” The district court didn’t err in holding “frivolous” the preliminary injunction motion given that a movant must show a likelihood of success on the merits and irreparable harm.
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