We round up the most significant appellate decisions relevant to commercial litigation each week.

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.

Commercial Appeals Roundup

Federal claim against Wells Fargo for opening fake customer accounts mooted need for survey of state law differences for purposes of settlement class certification. cdn.ca9.uscourts.gov/datastore/opin

Bar order didn’t meet necessity test. media.ca11.uscourts.gov/opinions/pub/f

Tax services firm failed to define trade secrets, couldn’t enforce overbroad NDA against former subcontractor, managing director. media.ca1.uscourts.gov/pdf.opinions/1

Choice of tribal law in payday-loan contracts waived future statutory claims in arbitration, violated public policy. ca4.uscourts.gov/opinions/19143

Clause in arbitration contract couldn’t bar court from ruling on whether choice of tribal law violated public policy as advance waiver of statutory claims. ca4.uscourts.gov/opinions/19210

Bar on copyright of “useful article” might not apply to model of human skeleton. ca10.uscourts.gov/opinions/18/18

UT’s sovereign immunity didn’t require dismissal of its licensee’s patent-infringement case against Baylor. cafc.uscourts.gov/sites/default/

Clean Air Act plaintiffs had to trace harm to chemical/refinery complex’s emissions to have Article III standing. ca5.uscourts.gov/opinions/pub/1

Device that stores list of numbers and uses it to autodial calls violates Telephone Consumer Protection Act. opn.ca6.uscourts.gov/opinions.pdf/2

Arbitration panel’s phase II award didn’t conflict with or supersede its phase I award. media.ca7.uscourts.gov/cgi-bin/rssExe

Case study gave enough detail about unnamed “doctor” who lost a leg on vacation to Mexico that jury can decide his defamation claim. ecf.ca8.uscourts.gov/opndir/20/07/1

Company’s claim of “ownership interest” in documents possessed by company officer didn’t support right to appeal order compelling production. cdn.ca9.uscourts.gov/datastore/opin

“General Counsel” of “firm” that a “company” no longer wholly owned could accept service of grand jury subpoena for company. cdn.ca9.uscourts.gov/datastore/opin

Contract giving up rights to trademark didn’t bar suit to cancel trademark. cafc.uscourts.gov/sites/default/

IPR that attacked gaming system patent as obvious didn’t violate APA by relying on points not raised by patent owner.

Securities fraud claim that alleges failure to disclose landlord’s loan to big tenant met scienter test. ca2.uscourts.gov/decisions/isys

Paint maker that sued county to stop it from hiring outside counsel on contingent-fee basis failed to present live case or controversy. www2.ca3.uscourts.gov/opinarch/19356

Direct buyers of Suboxone met Rule 23(b)(3) standard for class treatment of Sherman Act section 2 claim for suppression of generic competition. www2.ca3.uscourts.gov/opinarch/19364

Copyright owner’s failure to register the work before first act of infringement barred statutory damages. ca2.uscourts.gov/decisions/isys

Substantial truth of statements about pharmacist’s filling of many opioid prescriptions defeated defamation claims. ca4.uscourts.gov/opinions/18207

Forum choice clause barred court it chose from sending case to court it didn’t. media.ca7.uscourts.gov/cgi-bin/rssExe

Plaintiffs’ need for discovery didn’t prevent enforcement of deadline to move for class certification. cdn.ca9.uscourts.gov/datastore/opin

Jury may decide issue of whether patent is essential to meeting industry standard. cafc.uscourts.gov/sites/default/

Qualcomm’s brutal chip-licensing tactics didn’t violate Sherman Act. cdn.ca9.uscourts.gov/datastore/opin

DMCA doesn’t require knowledge that removing copyright credit from photo will result in photo’s misuse by others. ca2.uscourts.gov/decisions/isys

Claims against state for imposing tough Ebola quarantine restrictions failed due to lack of clear constitutional requirements at the time. ca2.uscourts.gov/decisions/isys

Contract providing both that costs of dispute “shall be borne” by parties and that prevailing party “shall be reimbursed” its costs meant prevailing party would bear its costs only until it prevailed. opn.ca6.uscourts.gov/opinions.pdf/2

Software license allowed licensee to share source code with contractors accused of copyright infringement. ecf.ca8.uscourts.gov/cgi-bin/today2

Need to fix apparent “drafting error” in Florida court ruling justified Delaware chancery court’s rare refusal to order shareholder meeting to elect directors first. courts.delaware.gov/Opinions/Downl

That brings us up to date for the Commercial Appeals Roundup. I hope to see you in this same space next Monday, August 24. Be well.

Barry Barnett

Note for readers

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.

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Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.