Vonage Holdings Corp. today announced an $80 million deal that includes a $35 million settlement of a patent dispute with Sprint Communications LP.  A Kansas jury awarded Sprint $69.5 million after finding Vonage infringed six Sprint patents.

The balance of the $80 million represents a $40 million payment "for a fully paid future license" to use Sprint’s Voice over Packet patent portfolio plus a $5 million "prepayment for services."

Vonage’s stock price rose 74 percent on the news — to around $2 a share.

But Vonage still has a judgment and injunction in favor of a different adversary, Verizon, to contend with.  The case remains on appeal before the Federal Circuit.

Barry Barnett

Feedicon_2 Our feed likes making deals.

Blawgletter appreciates that judges must use logic to decide cases, including cases that would stir any human’s emotions.  But we expect even objective magistrates to show compassion for those whose arguments they reject.

Consider a recent ruling against a mother and father who lost their son to suicide less than a week before his wedding day. 

The facts:  Two physicians diagnosed Brad Henry with hypogammaglobulinemia immunological deficiency, a condition that made him chronically ill and threatened his ability to work and live a reasonably normal life.  The two doctors plus a third recommended intravenous immunoglobulin replacement therapy for Brad.  But, over a seven-month period, Brad’s health insurer deemed the treatments medically unnecessary.  Four days after the insurer told him that it would take "a couple of weeks" to reevaluate his claim, Brad killed himself.  The carrier later denied coverage again.

The court of appeals affirmed summary judgment for the insurer, holding that the carrier established its "good faith" rejection of Brad’s claim as a matter of law.  In doing so, the court:

  • Applied a "not patently off-base" and "not illegitimate or specious" standard for assessing good faith.
  • Called an argument by Brad’s parents a "quibble".
  • Relegated to a footnote its discussion of a key argument — that the insurers’ physicians based their opinions on an "incomplete" file.
  • Criticized Brad and his doctors for not "bother[ing] to explore" a further appeal of the insurer’s refusal to admit coverage.
  • Chose not to identify the author of the court’s opinion.

Henry v. Mut. of Omaha Ins. Co., No. 06-41571 (5th Cir. Oct. 5, 2007).

Barry Barnett

Feedicon Res ipsa loquitur.

The NYT reports today that the Supreme Court of Washington struck down a state law against political lying.  Four of nine justices concluded that the electorate alone may judge the truth or falsity of candidates’ statements about each other.  A fifth justice concurred on the ground that political speech crosses the line only when the speaker lies with actual malice and the falsehood harms the opponent’s reputation.  The minority thought that the requirement of actual malice in the law saved it.

Barry Barnett

Feedicon14x14_2 Our feed always speaks true.

The WSJ editors put the issue in Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., No. 06-43 (U.S.) as whether to allow "investors to sue a company simply because it did business with someone else who broke the law".  Note the "simply because it did business" with a lawbreaker — specifically, a perpetrator of securities fraud.

Blawgletter suggests that the editors may want to read the Solicitor General’s brief in the case.  Even the SolGen concedes, in supporting the Wall Street side, that engaging in sham transactions with knowledge of their fraudulent purpose constitutes "deceptive" conduct under securities law.

Maybe the WSJ views intentional deception as "simply [doing] business".  We respectfully disagree.

Barry Barnett

Feedicon14x14 Our feed does business law daily.

Blawg Review #118

Kangkodos
Kang and Kodos hitchhiking.

Do you like to make people laugh?  Do you enjoy early Woody Allen movies, especially Sleeper?  Have you often heard people praising your wit?  And do you like everything about practicing law except for the clients, the judges, and your colleagues, particularly that partner who never fails to give you the creeps?

If so, welcome to Blawg Review #118.  Blawgletter has the honor to host Blawg Review this week.  We will cover many topics but will strive to throw in something funny every now and then.  Blawgletter:  Business trial law with a sense of humor.

Banishing Jury Trial

Jury

Anne Reed covers juries and jury trials on her terrific Deliberations blawg.  This week, she asks Is the Jury System Dying?  But she warns against going overboard with laments about the rarity of civil trial by jury.  As she notes in Clients, Choices, and the Jury System, "our first responsibility is to the client, not to the jury, and that often means we choose another path."

Scott Greenfield takes up the vanishing jury trial in Simple Justice.  Speaking from a criminal defense lawyer’s perspective, Scott wonders Trials; Where Have You Gone?  He offers a thought-provoking answer — that "the disease [of declining jury trials] was a conservative shift in political sentiment, elevating the desire for personal security over the promise of individual freedom."

Earlier this year, Blawgletter wrote about the Lone Star State’s 55 percent drop-off in civil jury trials since 1996.  We supposed that growing hostility to civil lawsuits in the Texas legislature, governor’s office, and judiciary helps explain the drop.  And we chuckle when we hear Supreme Court justices blaming everyone but themselves.

Should we care about marginalization of our most democratic institution, weakening of the strongest bulwark against arbitrary government action, silencing our greatest teacher of civic values?  Eh, we guess.

Michael "Voldemort" Vick

Lordvoldemort

Have you already read Harry Potter and the Deathly Hallows, which came out this Saturday?  If not, you needn’t bother.  Atlanta Falcons quarterback Michael Vick delivers just as much evil in far fewer than 759 pages.  Or so federal prosecutors would have you believe.

Sports Law Blog describes the criminal charges against Mr. Vick (a/k/a "Ookie") and three buddies (including "P-Funk") for horrific treatment of fighting dogs.  The post includes links to other sources and the indictment itself.

Professor Stephen Bainbridge supplies a scholarly explanation of the Vick case, pointing out that the libertarian Edmund Burke would consider dog fighting way past his limit on government’s proper role.

Speaking of Pets

We also have videos — one of West Virginina Senator Robert Byrd rhapsodizing on canine critters (thanks to Althouse) and another of Will Ferrell advertising his dog-suing law practice (hat tip to Seth at QuizLaw).

Professor Glenn Reynolds of Instapundit warns that "IT’S A BAD IDEA TO BURGLARIZE a place marked ‘K-9 Training Facility.’"  Res ipsa loquitur.

Plus J.D. Hull balances things a bit with an appreciation of cats.  Mr. Hull composes What About Clients? — even during his vacation.  Yo, dawg, get some R&R.

Leash_sound

Finally, What the Funny . . . Patents describes a patent on one of those "invisible pet" leashes (above).  This variety issues "a plurality of animal sounds" from a speaker on the collar.

Roundup

The Disassociate, a column in NLJ.com and a blog, writes:

I cannot believe we are returning to formal business attire. I was sure that armpit-yellowed golf shirts and high-water seersucker pants were totally acceptable. Boy did I misread those second looks.

Mad Kane’s Humor Blog includes an ode about bloggers’ obsession with Google page-ranking.  We’ve never checked our page rank before, but we now we can’t wait to!

Professor Eric Goldman discusses our firm’s contingent fee agreement in patent cases — or at least Steve Susman’s description of it — on his Technology & Marketing Law Blog.  Reacting to Steve’s statement that he’d file suit before starting peace talks in order to avoid a bad forum, Professor Goldman suggests that limits on venue choices in new patent legislation could encourage pre-litigation settlement discussions.  (Go here for our view on how recent court decisions force plaintiffs to sue before talking settlement.)

The Invent Blog, per Stephen Nipper, gives a Miller High Life-like tribute to "Mr. et al." in this post.

Walter Olson provides an obit for a lawsuit against "Extreme Makeover" in Overlawyered; Evan Schaeffer’s Legal Underground offers links to classic (and scary) posts by The Machiavellian Lawyer; and Charon QC describes a striking instance of judicial disdain.

What About Clients expresses lack of sympathy for those who pulled an all-nighter last week on debate about Iraq:

In olden days (circa 96th and 97th Cong.), when WAC? worked for Congress during those pointless posturing all-nighters, we (a) stayed up for 4 or 5 nights in a row with no cots, (b) ate nothing but the cheapest pharmaceutical "Crank", and (c) drank only coffee, whiskey, Tune Inn beer and Jolt cola, all out of dirty Mason jars. Spartan. Tireless. And just as lame.

Over at Balkinization, Sandy Levinson — who taught Blawgletter a thing or two about writing — lays out constitutional amendments that he’d like to see.  One would limit presidential veto power, and others would relate to the office that John Nance Garner described as "not worth a bucket of warm" bodily excretion.

Wired GC fusses about the costs versus benefits of the patent system.  The post cites an article, in The New York Times, about a law professor’s study, which concludes that costs outweigh benefits because patent litigation expenses — presumably including defense costs — exceed profits from patents.  But we wonder.  Doesn’t having profits mean that you got more revenue than you paid to get it?

Queensjurors
Jurorial love birds.  Homicide brought
them together.

And who can resist the tale of two Queens jury venire members who married after the groom voted to convict a murderer?  Not Peter Lattman, who writes The Wall Street Journal’s marvelous Law Blog.

Above the Law points out that the three people who sat for the Guam bar examination failed.  A fourth didn’t show up.

Scott Felsenthal and Jonathan Louis May, at The Legal Scoop, give us top 10 negotiation skills for a lawyer, answer should I go to law school, and demystify working in-house.

Barry Barnett

Feedicon14x14 Our feed encourages recycling.

Thirty-two former partners at a big law firm will split $27.5 million on account of the firm’s age discrimination against them, the Equal Employment Opportunity Commission announced today.

We mention the case not to vex friends at an excellent firm but because the news item quotes Judge Posner’s treatment of an interlocutory decision.  In it, His Honor dispatches an argument about firm governance thus:

[The firm]’s contention that since the executive committee [of the firm] exercises its absolute power by virtue of delegation by the entire partnership in the partnership agreement, we should treat the entire partnership as if it rather than the executive committee were directing the firm.  That would be like saying that if the people elect a person to be dictator for life, the government is a democracy rather than a dictatorship.

Touche.

Barry Barnett

Feedicon14x14_3 Our feed eats what it kills.

President Bush said today:

This government does not torture people.

Blawgletter would risk a charge of snarkiness if we said something like:

  • Does that mean the government used to torture people?  When did it stop?
  • Okay.  Y’all may not torture people, but by golly y’all sure do give the impression of torturing the English language!

So we’ll hold our tongue.

Barry Barnett

Feedicon14x14_2 Per Lewis Carroll, common Snarks do no manner of harm.

The Second Circuit today barred a copyright co-owner from going back in time to kill another co-owner’s infringement claims.  The case involved two songs — "L.O.V.E." and "Don’t Trade in My Love" — versions of which hip-hop soul singer Mary J. Blige recorded on a triple platinum album, No More Drama.  Sharice Davis sued Ms. Blige and others, but the district court held that a retroactive license by Ms. Davis’s co-author, Bruce Chambliss, to Bruce Miller defeated her infringement claims.  The Second Circuit reversed:

Inasmuch as the alleged retroactive agreements purporting to transfer Chambliss’s copyright interests to Miller could not also transfer Davis’s copyright interests, Davis’s accrued causes of action for infringement were not affected by the agreement between Chambliss and Miller.  Accordingly, the District Court erred in granting summary judgment to defendants.

Davis v. Blige, No. 05-6844 (2d Cir. Oct. 5, 2007).

Barry Barnett

Feedicon14x14 Yes, our feed does have the 411.

The NYT reports today on the influx of doctors since Texas enacted a law that makes medical malpractice lawsuits uneconomic.

No word on the law’s effect on the frequency of malpractice. Dare we hope that only really terrific physicians respond to the virtual absence of malpractice liability?

Barry Barnett

The NYT reports today that government lawyers okayed the CIA’s harshest interrogation methods shortly after Alberto Gonzales took over as America’s chief defender of the rule of law. 

Imagine Blawgletter’s surprise.

We admit to enjoying the part about an exchange between James B. Comey and David S. Addington over a "torture" memo by John Yoo.  Mr. Comey said that "no lawyer" could find Mr. Yoo’s arguments persuasive.  When Mr. Addington pointed to his law degree and said the arguments convinced him, Mr. Comey clarified that he meant "no good lawyer".  Hacha!

For the White House reaction to the report, lookie here.

In other news, a Hennepin County judge concluded today that Senator Larry Craig made an "accurate, voluntary and intelligent" decision to admit his guilt of disorderly conduct in a Minneapolis/St. Paul airport bathroom.

Barry Barnett

Feedicon_4 Tortious, tortuous, torturous.