Genuine quotes from actual Blawgletter readers:
10. "Brilliant"
9. A "laugh riot"
8. "Entertaining"
7. "Iconoclastic"
6. "One of my daily reads"
5. "Funny, creative stuff"
4. "Well worth your time"
3. "Humorous and clever"
2. "Interesting and timely"
1. "Beats a poke in the eye with a sharp stick"
Blawgletter made the last one up. Sorry.
Barry Barnett
The Washington Post reports that former Solicitor General Theodore B. Olson may get the presidential nod next week to replace the resigning Alberto Gonzales as the next Attorney General.
The story quotes a Senate aide as saying that "[a] lot of Democrats up here would view that as a shocking and unwise choice."
Barry Barnett
Payors claim they overpaid for Vioxx prescriptions.
On Thursday, the Supreme Court of New Jersey decertified "a nationwide class of third-party non-government payors" in a consumer fraud case against pharmaceutical maker Merck. The payors alleged that Merck fraudulently induced them to overpay for prescriptions of the anti-inflammatory drug Vioxx. Int’l Union of Operating Engineers Local No. 68 Welfare Fund v. Merck & Co., Inc., No. A-22 (N.J. Sept. 6, 2007) (per curiam).
The Court held:
The Court assumed, without deciding, that the New Jersey CFA could apply nationwide.
Blawgletter hasn’t followed the payors’ class action effort, but we suspect that the adage about taking care in choosing what to ask for may apply. The payors, we imagine, won’t go quietly into that good night and will instead band together in a sprawling mass action or in multiple ones. So we see litigation spreading over the horizon.
Hardball, baby!
Barry Barnett
The Second Circuit today invalidated the New York Mercantile Exchange’s claim of copyright in the "settlement prices" of commodity futures contracts. NYMEX estimates settlement prices for a great many contracts at the end of each day and publishes the results. IntercontinentalExchange, Inc., copied the NYMEX prices and used them to clear its customers’ trades. The district court granted ICE’s motion for summary judgment, and the Second Circuit affirmed. New York Mercantile Exchange, Inc. v. IntercontinentalExchange, Inc., No. 05-5585 (2d Cir. Sept. 7, 2007).
The court held that the "merger" doctrine barred NYMEX’s copyright claim. Copyright law, the court noted, protects only the "expression" of ideas and not the ideas themselves. When the means of expressing an idea gets too close to the idea, expression and idea "merge". Because expression of the idea of settlement prices invariably consists of numbers and express facts that NYMEX does not "create" but instead "discovers" by looking at objective data, they lacked enough distinction from the idea of the value of the underlying futures contracts to deserve copyright protection.
Barry Barnett
A party, Pertamina, loses an arbitration in Switzerland. It reacts by getting an Indonesian court to annul the award, but the Supreme Court of Indonesia reverses the annulment order. The winning party, Karaha Bodas Company, successfully moves in a Texas federal court to confirm the award. The Fifth Circuit upholds the confirmation. KBC registers the federal judgments in New York federal court. Pertamina files a new lawsuit in the Cayman Islands. It alleges that the winning party procured the arbitration award by "fraud". The New York court enjoins Pertamina from proceeding with the Cayman Islands case. Karaha Bodas Co., L.L.C. v. Perusahaan Pertambangan Minyak Dan Gas Bumi Negara, No. 07-0065 (2d Cir. Sept. 7, 2007).
Today, the Second Circuit affirmed. It held that KBC satisfied the requirements for an anti-foreign-suit injunction under China Trade & Development Corp. v. M.V. Choong Yong, 837 F.2d 33 (2d Cir. 1987). The court rejected Pertamina’s argument that its Caymans Islands case "is a proceeding ‘separate and independent of the arbitration proceedings and award.’" Slip op. at 17. It concluded instead that Pertamina had, in losing its attempt to vacate the award in Texas, actually litigated its claim that Karaha Bodas procured the award by fraud:
Although Pertamina makes new factual allegations in support of its claim that the Award should not have been enforced against it, these new factual allegations are not sufficient to undermine the preclusive effect of several earlier federal court decisions that (1) the Award should be enforced and (2) KBC is entitled to Pertamina’s New York funds in an amount sufficient to satisfy the Award.
Id.
Barry Barnett
Rocky kept debt collection fair.
Blawgletter’s heart swelled with pride today as we read the Third Circuit’s decision rejecting an ex-lawyer’s claim that the Fair Debt Collections Practices Act didn’t reach his repulsive behavior. His fertile — or febrile — mind birthed the notion that the FDCPA doesn’t apply to companies that buy NSF (non-sufficient funds) checks and that then try to collect the face amount plus big fees by such tactics as calling the check-writers "retards", threatening (falsely) to prosecute them criminally, and harrassing their moms. Federal Trade Comm’n v. Check Investors, Inc., Nos. 05-3558 & 05-3957 (3d Cir. Sept. 6, 2007).
We don’t deny his cleverness. His arguments seem plausible. For example:
The Third Circuit, to its glory, saw through these sophistic — subtly deceptive — arguments. The court affirmed a permanent injunction against further debt collection by the defendants and an order that they disgorge $10.2 million of illicit profits. Bravo.
Barry Barnett
Our feed admires the many lawyers who use rhetoric only to tell the truth.
A federal judge in New York today declared parts of the USA Patriot Act unconstitutional because they infringe free speech rights. He also ordered the government to stop using "national security letters" to make companies turn over information about customers.
The Washington Post story here includes a link to the 106-page opinion.
Barry Barnett
The poet Shelley wrote, in 1817, about a great Middle Eastern conqueror:
I met a traveller from an antique land
Who said: Two vast and trunkless legs of stone
Stand in the desert. Near them on the sand,
Half sunk, a shatter’d visage lies, whose frown
And wrinkled lip and sneer of cold command
Tell that its sculptor well those passions read
Which yet survive, stamp’d on these lifeless things,
The hand that mock’d them and the heart that fed.
And on the pedestal these words appear:
"My name is Ozymandias, king of kings:
Look on my works, ye mighty, and despair!"
Nothing beside remains: round the decay
Of that colossal wreck, boundless and bare,
The lone and level sands stretch far away.
Barry Barnett
Blawgletter lives for days like today. So much interesting stuff to do and so little time to punch it out.
But hark! We did notice that a circuit other than the Federal issued an opinion on a question sure to beguile patent law practitioners. And the Federal Circuit published a couple of patent-law opinions, too.
We haven’t the time to give them the attention they doubtless deserve and therefore offer a mere summary (with links!):
Barry Barnett
Today, the Second Circuit rendered judgment in ABC v. DEF, No. 05-13721 (2d Cir. Sept. 5, 2007). Blawgletter at first thought that the style of the case simply abbreviated the parties’ names. But no.
The plaintiff, ABC, lives in a federal prison. We can’t tell why, but the court does mention his "cooperation with authorities" and notes their concern that other prisoners may have learned of his help. That probably explains his anonymity and, apparently, the use of DEF to stand for any individuals whose identification might reveal his.
ABC sued because prison officials lost some of his chattels while moving him to a special housing unit for his own protection. The district court dismissed for lack of subject matter jurisdiction under an exception to the waiver of sovereign immunity in the Federal Tort Claims Act. The Second Circuit reversed because it read the exception more narrowly.
Barry Barnett
