Opinions — Tuesday, August 18, 2026

The Ninth Circuit affirmed the district court's award of attorney's fees to defendant BPI Sports, LLC following dismissal with prejudice of plaintiffs ThermoLife International, LLC and Muscle Beach Nutrition, LLC's false advertising claims, and remanded solely to correct a computational error reducing the fee award from $486,207 to $454,339. The case involved repeated litigation by ThermoLife alleging false advertising under § 43(a)(1)(B) of the Lanham Act against sports supplement distributors, including BPI. ThermoLife voluntarily dismissed its 2018 Arizona action against BPI after multiple similar cases were dismissed for failure to plead competitive or commercial injury, then refiled substantially identical claims against BPI in Florida in 2020. After transfer back to Arizona and dismissal with prejudice, BPI sought fees for both the 2018 and 2020 actions. The district court awarded fees under both 15 U.S.C. § 1117(a) for the 2020 litigation as an "exceptional case" and under Federal Rule of Civil Procedure 41(d) for the 2018 litigation as recoverable "costs" following voluntary dismissal and refiling. The panel held that ThermoLife's persistence in asserting the same deficient claims despite a pattern of dismissals of eight similar actions in the same district for identical pleading failures, combined with strategic forum-shopping through voluntary dismissal and refiling in a different venue, rendered the case exceptional under § 1117(a).

The decision breaks circuit law by adopting the Third, Fourth, Fifth, and Seventh Circuits' rule that attorney's fees qualify as "costs" under Rule 41(d) when the underlying statute authorizes fee-shifting, resolving an open question from Moskowitz v. American Savings Bank, 37 F.4th 538 (9th Cir. 2022). The majority follows Judge Wardlaw's Moskowitz concurrence and applies Marek v. Chesny, 473 U.S. 1 (1985), reasoning that because the Lanham Act permits fee awards in exceptional cases and Rule 41(d)'s discretionary "may order the plaintiff to pay all or part of the costs" language constitutes sufficiently explicit intent to overcome the American Rule, fees are recoverable for the previously dismissed action. The majority declines to reach whether bad-faith findings alone suffice absent statutory authorization, as the Fourth Circuit held in Andrews v. America's Living Centers, 827 F.3d 306 (4th Cir. 2016). Judge Miller dissents, arguing the Lanham Act authorizes fees only for "this action" before the court and Rule 41(d)'s "costs" does not include attorney's fees absent express statutory language, adhering strictly to the American Rule and contending the court lacks authority to award fees incurred in a separate case not properly before it.

The Federal Circuit affirmed the Patent Trial and Appeal Board's denial of Robert Bosch LLC and Mercedes-Benz USA, LLC's petitions for inter partes review of claims in Westport Fuel Systems Canada Inc.'s two related fuel injector valve patents. The sole issue on appeal was whether substantial evidence supported the Board's finding that the prior art reference Klügl failed to disclose a claim limitation requiring a hydraulic fluid that "acts substantially as a solid" with a thickness that remains "substantially constant" during actuator activation.

The court's analysis turned on the Board's factual finding that Klügl's membrane was "flexible" and would therefore flex during actuation, causing the hydraulic fluid to change shape rather than maintain constant thickness as a solid would. The court applied the substantial evidence standard to review this factual finding and deferred to the Board's credibility determination that petitioner's expert testimony was "incomplete and contradictory," as well as the Board's logical inference that a membrane described as flexible in the prior art and shown to flex when not actuated would likewise flex during actuation. The court also affirmed the Board's treatment of petitioner's argument about "stroke translation" as unsupported by credible evidence and rejected petitioner's contention that a skilled artisan could design around the flexibility as contradicting Klügl's express teachings.