The output of U.S. Courts of Appeals slowed over the summer; the highest courts in Delaware, New York, and Texas went on partial hiatuses; and having finished its 2019-20 Term in June, the U.S. Supreme Court won’t restart its assembly line until October 5. Yet we have a backlog of rulings to report. The 25 blurbs-plus-links below the jump will catch you up on the decisions most likely to affect your commercial litigation practice. Have a great week. Continue Reading Commercial Appeals Roundup
The summer doldrums have slowed but not halted the flow of rulings by the U.S. Courts of Appeals, but you can’t say the same about the highest courts in Delaware, New York, and Texas.
Despite the more languid pace of federal-court opinions, we have a cornucopia of them–28 in all. I’m happy to say the backlog is a result of having quite a lot to do in my day job at Susman Godfrey.
The state-court pipelines have paused their deliveries since July 31 (in Delaware), July 17 (Texas), and June 29 (New York)–yielding just one opinion (on a rare instance of declining to order a shareholder meeting to elect directors).
Below the jump you’ll find the latest roundup of blurbs-with-links.
Continue Reading Commercial Appeals Roundup
Loan contract that limited arbitration to claims under tribal law violated public policy.
Network monitor patent did more than embody abstract idea under Alice.
Researchers qualified as inventors of patents on cancer-targeting antibodies.
Fair value of firm could equal value of its stock.
FAA exempts contracts with international transport workers who don’t cross any state line.
ERISA doesn’t preempt contract claims for insurer’s breach of promise to pay out of network charges.
Making twin of U.S. pizza joint in Scotland didn’t violate U.S. copyright or trademark law.
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
Steve Susman–my friend and mentor and my firm’s founding partner–died yesterday. A great many people who knew or knew of Steve have sent condolences, which I appreciate very much. I am very sad but also very grateful.
For those of you who hadn’t heard or want to know more, below is a statement that the partners issued this morning.
Be well.
Steve Susman, 1941-2020
With extraordinary sadness, the partners of Susman Godfrey LLP announce the death of our beloved founder, colleague and friend Stephen D. Susman. Steve died in Houston on July 14 from complications of a bicycle accident in April.
Steve was our leader. The firm was always his vision. He loved the law firm, and loved us, and it was mutual. Steve was passionate about the law and justice. He spent his entire life thinking and talking about, and working for, ways to improve the system of civil justice in America.
Steve changed the nature of law practice forever. Long before the profession gave serious thought to basing a complex commercial litigation practice on contingent fees and other arrangements that rewarded success rather than the number of hours billed, Steve championed this and built a firm around his idea. Hundreds of other firms have followed that model, but Steve pioneered it and proved, spectacularly, that it could work.
Steve also changed the way cases get litigated. He urged lawyers to avoid excessive discovery and pretrial disputes, and instead focus on trial. He taught Susman Godfrey lawyers and many other lawyers around the country that being fierce advocates does not preclude treating one’s adversaries with honesty, professionalism, and respect.
To decades of lawyers at Susman Godfrey, Steve was not just our founder and leader, but our mentor and friend. He was as eager to work on cases with and spend leisure time with the firm’s newest associates as with his most senior colleagues. Many of the older Susman Godfrey lawyers referred to him as “Dad” and it was more-than-half serious. Steve played a fatherly role at the firm, even if he was a father whose words of wisdom were liberally sprinkled with F-bombs, dares, and raucous laughter. Through the power of his personality and intellect he imparted to generations of Susman Godfrey lawyers his dedication to hard work, intellectual rigor, zealous but honest advocacy, candor in dealing with clients and courts, entrepreneurial inventiveness, devotion to the legal system, and social consciousness.
We all knew that the Steve Susman era would end at some point, but that did not stop us from hoping in our hearts that he would be with us at Susman Godfrey forever. When he flirted with retirement two years ago, the partnership responded by unanimously adopting a policy of mandatory retirement at age 100.
Our hearts go out to Steve’s wife Ellen, his son Harry and wife Karen, his daughter Stacy and husband Tom, his step-daughter Whitney and husband Matt, his step-daughter Amanda and husband Matt, his brother Tommy and wife Susan, his eight grandchildren, and his entire law firm family.
We will miss Steve tremendously as we carry on his legacy, practicing law the way Steve taught us, honoring the values he imparted, treasuring the extraordinary camaraderie that he built. It is no surprise that when Steve was injured bicycling in April, he was with lawyers from his firm, young and old, moving forward, having fun, in the lead, pedaling as fast as he could.
Beating a motion to dismiss or for summary judgment doesn’t count as success on merits.
Sports shoe making design patent wasn’t obvious.
Light up shoe design patent was obvious.
Congress gave chief of CFSB too much independence.
Fiduciary shield doctrine crumples.
Tacking .com to end of generic word or phrase may create protectable copyright.
Arthritis patent beats double-patenting, insufficient description, and obviousness attacks.
Claim of oral side deal breached warranties in APA, barring claim and triggering indemnification.
Debtors who didn’t fall for misleading debt-collection letter lacked standing to sue.
Letter giving notice of intent to start marketing competing drug satisfied statute.
Free pass for robocalls to collect federal debts failed strict scrutiny test under first amendment.
Past buyers of pasta couldn’t bring class action to enjoin future sales.
Statute doesn’t allow federal courts to order discovery in aid of private arbitration outside U.S.
PTAB shouldn’t have deemed invention “not unpatentable” without ruling on its obviousness in IPR.
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
Contempt action for violation of bankruptcy discharge order belonged in court despite arbitration clause. ca2.uscourts.gov/decisions/isys
DACA survives. supremecourt.gov/opinions/19pdf
Lawyer who won judgment on Argentine bonds had lien on proceeds of settlement he didn’t participate in and could sue Argentina under commercial activity exception to FSIA. ca2.uscourts.gov/decisions/isys
Arbitration clause required that arbitrator arbitrate arbitrability. opn.ca6.uscourts.gov/opinions.pdf/2
Monopolization claim against giant in niche packaging market didn’t state viable patent fraud, sham litigation, or bundling predicates. ecf.ca8.uscourts.gov/opndir/20/06/1
Class false advertising claim didn’t qualify for restitution due to availability of damages as legal remedy. cdn.ca9.uscourts.gov/datastore/opin
Experts and part owner of partnership failed to support opinions on loss-in-value trade-secret damages. txcourts.gov/media/1447776/
Bank’s proxy statement may have misled shareholders about regulatory risks its practices posed to merger. www2.ca3.uscourts.gov/opinarch/17369
Shift in focus didn’t sidestep with-prejudice dismissal’s preclusive effects on later patent infringement claims. cafc.uscourts.gov/sites/default/
SEC’s power to get “equitable relief” includes disgorgement but only to extent of wrongdoer’s net profits and only to benefit victims. supremecourt.gov/opinions/19pdf
Qui tam claim for fraud beats officials’ immunity defense. ca4.uscourts.gov/opinions/18157
Bankruptcy plan can estimate how long it will last. cdn.ca9.uscourts.gov/datastore/opin
Third-party counterclaim defendants have no right to remove a case from state court. media.ca11.uscourts.gov/opinions/pub/f
Breach of duty to disclose claim against director requires proof of reliance, causation, and damages. courts.delaware.gov/Opinions/Downl
Refund of improper charge didn’t defeat Article III standing. cdn.ca9.uscourts.gov/datastore/opin
SEC didn‘t have to impose fiduciary duty on broker-dealers. ca2.uscourts.gov/decisions/isys
Russian operator of websites that enabled users to rip audio files may have to defend against music owners’ copyright claims in Virginia. ca4.uscourts.gov/opinions/19112
Class of life insurance owners can keep $34 million verdict for improper “cost of insurance” fees that State Farm added to premiums. ecf.ca8.uscourts.gov/opndir/20/06/1
Airplane bathroom patent on space-saving design was obvious. cafc.uscourts.gov/sites/default/
Skipping interlocutory appeal didn’t forfeit appeal from final judgment. txcourts.gov/media/1448051/
Business that alleged defamation had only a business disparagement claim. txcourts.gov/media/1448050/
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
This week’s Commercial Appeals Roundup actually covers a fortnight of appeals court rulings, from May 18 to June 5. Eyeballing the total number (24) makes me think the courts’ output has slowed only a little as a result of COVID-19.
Subject-matter-wise, the courts:
Be well.
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Signing of one-page contract to rent car didn’t bind customers to arbitration clause in “rental jacket”. www2.ca3.uscourts.gov/opinarch/18378
Scent sprayer patent was obvious. cafc.uscourts.gov/sites/default/
Grant of right to use trademark in divorce didn’t create “naked license” without quality controls and therefore didn’t abandon trademark. ecf.ca8.uscourts.gov/opndir/20/05/1
Copyright owner doesn’t have burden to show copied elements of its work were protectable. media.ca11.uscourts.gov/opinions/pub/f
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
Appeals courts kept churning out rulings in the commercial sphere last week, but even more than usual dealt with IP issues—10 of 12 by my count, with one oil and gas and one class action rounding out the dozen.
The Supreme Court Itself spoke up, ruling in a trademark death-match that the end of previous phase of the feud didn’t preclude the Hatfields from upholstering a new defensive weapon. That trickle will turn into a flood, as the 2019 Term nears its June end.
Stay safe, keep doing good, and be well.
Federal Drug & Cosmetic Act preempted state-law claims about liquid products you can’t fully dispense. ca2.uscourts.gov/decisions/isys
Copyright owner had burden to show terms of license didn’t allow licensee to use works as it did. ca2.uscourts.gov/decisions/isys
Any case that turns on copyright validity and infringement can trigger award of fees to winner. cdn.ca9.uscourts.gov/datastore/opin
Post-suit reformation of patent assignment applied retroactively, giving plaintiff right to sue at time of filing. cafc.uscourts.gov/sites/default/
Terms of firm’s winning bid for lead class counsel spot sets starting point for fee award. cdn.ca9.uscourts.gov/datastore/opin
A jury could find “Engineered Tax Services” service mark inherently distinctive. media.ca11.uscourts.gov/opinions/pub/f
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.
Decisions by appeals court have started to slow as the judges work through backlogs and adjust to remote oral arguments, remote conferences, and home offices with yappy dogs and bitey cats. The Week of May 4 produced 7 opinions that rated tweets on @contingencyblog, most of them dealing with intellectual property. Your Commercial Appeals Roundup, featuring a blurb for each of those rulings, appears below.
Be well.
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Party that brought IPR waived Appointments Clause complaint objection to panel of Patent Trial and Appeal Board. cafc.uscourts.gov/sites/default/
Mistake in view of prior art required new look at obviousness of patent asserted against Uber. cafc.uscourts.gov/sites/default/
New GM didn’t judicially admit it had to pay death claim against old GM. ca2.uscourts.gov/decisions/isys
Only “party affected” by force majeure event had duty to try to overcome it. media.ca7.uscourts.gov/cgi-bin/rssExe
Ruling on unconstitutionality of appointments to Patent Trial and Appeals Board panels didn’t apply to final decisions that post-dated ruling. cafc.uscourts.gov/sites/default/
Calling cooking oil that contains GMOs “100% Natural” could mislead consumers. media.ca1.uscourts.gov/pdf.opinions/1
Patents on cancer drug spoke of ethanol but didn’t include it in claims, ceding right to assert drug that used ethanol infringed patents. cafc.uscourts.gov/sites/default/
Because my practice focuses on complex commercial disputes–especially antitrust, energy, and intellectual property–I keep daily track of important decisions by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas.
You can follow along during the week on Twitter (@contingencyblog) or here at The Contingency each Monday with this Commercial Appeals Roundup.
Check out my profile on the Susman Godfrey website.