Welcome to the November 15, 2023 edition of Commercial Roundup. It will catch you up on the latest appellate decisions by federal appellate courts and the highest courts in Delaware, New York, and Texas on antitrust, arbitration, class actions, intellectual property, securities, and other important issues in complex business and commercial disputes.
- Expert witness who consulted with plaintiff but didn’t sign an NDA could testify as expert for defendant.
- Facebook’s public statements about users’ control of their data and risks of its misuse supported fraud claims under Securities Exchange Act of 1934.
- Monopolist’s threats to punish buyers who bought from upstart rival supported monopolization claim under Section 2 of Sherman Act but not tying claim under Section 1.
- $2.67 billion settlement of antitrust class action survives all objector attacks.
- Error in construing claim term “the sample stream” as not “plural-allowing” doomed Patent Trial and Appeal Board’s rejection of obviousness challenges in IPR.
- Patent Trial and Appeal Board needn’t address unclear arguments about patent’s obviousness in light of prior art.
- Denial of ex parte request for seizure order under Defend Trade Secrets Act didn’t qualify for appeal.
- Employee had right to sell employer his stake in new company employer never formed.
- Google paid Apple and others $26.3 billion to help Google keep its search engine monopoly. Will it win antitrust enforcers’ case against it anyway?
- Jury finds conspiracy to inflate broker fees home sellers paid in Columbia, Kansas City, Springfield, and St. Louis from 2015-22 and awards $1,785,310,872 in overcharge damages.
- Video game might have infringed copyright in dance steps.
- Patent didn’t limit “guiding mechanism” to a “manual” one.
- Estimate of damages due to extra charges for drilling out frac plugs could rely on extrapolation of service provider’s undue delay.
- Clear error in failure to transfer venue of case against TikTok required relief by mandamus.
- Presence on purchase widget of hyperlink to “payment terms” put buyer on “inquiry notice” of arbitration clause she never saw.
- Cash award to class counsel should reflect cash value of benefits class members in fact receive. Clauses that might hinder class-member complaints need a hard look.
- App makers failed to define a plausible product market that Apple’s App Store might have monopolized.
- Willful failure to comply with Fair Credit Reporting Act triggers statutory damages without proof of harm to claimants.
- IPR petitioner’s claims it would likely develop a product that infringes IPR respondent’s patent and that respondent’s patent would limit petitioner’s pending patent application lacked detail necessary to show concrete injury and therefore standing to sue.
- Dispute over whether “a pH of 13 or higher” allowed a pH range of 12.5 to 13.4 required review of evidence outside patent prosecution file.
- Suing buyer of product for patent infringement after losing infringement case against product’s seller supported award of fees against patent holder due to “exceptional” nature of holder’s bad conduct.
- Public company board’s okays of stock, warrant, and debt deals exempted director who benefited from short-swing profits claim under Securities Exchange Act of 1934.
- Class Action Fairness Act barred removal of action for damages from merger that violated share owners’ contract rights and insiders’ fiduciary duties under CAFA’s “securities related exception” to “minimal diversity” jurisdiction.