Blawgletter somehow missed the survey that the American Association for Justice — the main trade group for plaintiffs’ trial lawyers — commissioned on attitudes about civil justice from Peter D. Hart Research Associates.  It came out last month.  And guess what?  Most people worry more about corporate irresponsibility than lawsuit abuse.

For example:

• 55 percent said they see securities fraud and misuse of personal information about individuals as "extremely serious" problems.
• 47 percent view excessive corporate power as extremely serious.
• 34 percent believe trial lawyers’ making too much money counts as an extremely serious worry.

Check out the AAJ’s summary of other results here.

One should of course take poll results like this with a grain of salt.  We would want to know more about methodology and the questions themselves before pronouncing a survey reliable.  But we bet that lawyers who represent plaintiffs will feel the Hart findings at least as gratifying as they find polls by opponents of "jackpot justice" infuriating.

Barry Barnett

Survey our feed.

Blawgletter’s favorite Whole Foods Market.

Blawgletter alerted you yesterday to the D.C. Circuit’s order staying the acquisition of Wild Oats by Whole Foods.  We now have the per curiam order. It says:

Upon consideration of the emergency motion of the Federal Trade Commission for an injunction pending appeal, the opposition thereto, and the reply, it is

ORDERED that Whole Foods Market, Inc. be enjoined from taking any further steps to acquire the stock, assets, or any other interest in Wild Oats Markets, Inc., directly or indirectly, pending further order of the court. The purpose of this administrative injunction is to give the court sufficient opportunity to consider the merits of the motion for an injunction and should not be construed in any way as a ruling on the merits. See D.C. Circuit Handbook of Practice and Internal Procedures 32 (2007). It is

FURTHER ORDERED, on the court’s own motion, that appellees file a supplemental response to the emergency motion by 4:00 p.m. on Wednesday, August 22, 2007, specifically addressing each of the eight reversible errors appellant alleges were committed by the district court. See Emergency Motion for Injunction Pending Appeal at 13-14. Any reply is due by 12:00 noon on Thursday, August 23, 2007. The parties are directed to file and serve their pleadings by hand.

Federal Trade Comm’n v. Whole Foods Market, Inc., No. 07-5276 (D.C. Cir. Aug. 20, 2007) (per curiam).  The panel consisted of Circuit Judges Sentelle, Tatel, and Kavanaugh.

If we had to guess, we’d suppose that Their Honors will decide to dissolve or extend the injunction by Friday.

Update:  Our prediction came true.  The court dissolved its "admnistrative injunction" on August 23.

Barry Barnett

Our feed sows its wild oats.

Today, the Seventh Circuit upheld a lender’s right to require a borrower to pay for the privilege of repaying the loan early.  The promissory note barred pre-payment unless the borrower also forked over a "yield maintenance" fee.  The borrower paid before the loan matured but balked at ponying up the fee.  It later relented but then filed suit to get the fee back and won after a bench trial.  On the lender’s appeal, the Seventh Circuit reversed, holding that the yield maintenance fee compensated the lender for interest it would have earned but-for the early payoff and that it didn’t cross the line into an unenforceable penalty under Illinois law.  River East Plaza, L.L.C. v. The Variable Annuity Life Ins. Co., No. 06-3856 (7th Cir. Aug. 22, 2007).

Barry Barnett

Our feed arouses interest but charges none.

Nathan Koppel over at the WSJ has penned a first-rate article about hourly rates — specifically those at or about $1,000.  He describes lawyers’ reluctance to go to four figures while noting those who’ve overcome the feeling.  And he points to one of Blawgletter’s partners, who told Mr. Koppel that he charges $1,100 an hour to discourage people from wanting to hire him on an hourly basis.  (They want to anyway.)

Which fits with our views about the dinosaurian essence of the hourly fee.  In litigation, we believe that charging by the hour encourages inefficiency, legitmizes a take-no-prisoners approach, delays case resolution, promotes obnoxious litigators instead of charming trial lawyers, and doesn’t even reflect the value of the services.  Plus it creates a conflict of interest between lawyer and client.

We don’t suggest going back to the bad old days of legal bills that give a dollar amount and say "for services rendered" and nothing more.  But we do have tools these days to tie compensation to actual value — flat fees, bonuses for specific results, contingent fees, reverse-contingent fees, and many other variations.  That way lies the future.

Barry Barnett

Our feed adds value.  And don’t cost nothin’.

Today, the Fifth Circuit upheld dismissal of a securities fraud complaint for failure to plead facts sufficient to raise a "strong inference of scienter" — that the bad guys intended to defraud purchasers of stock.  The court considered an array of allegations but found each of them individually and and all of them collectively too thin for a reasonable person to infer scienter strongly, as the Private Securities Litigation Reform Act requires.  Central Laborers’ Pension Fund v. Integrated Elec. Svcs. Inc., No 06-20135 (5th Cir. Aug. 21, 2007).

Barry Barnett

We imply.  You infer.

Whole Foods’s quest to eat Wild Oats got another jolt yesterday.  The D.C. Circuit stayed consummation of the merger until it gets more briefing on the Federal Trade Commission’s efforts to block it on antitrust grounds.  Washington Post story here.

U.S. District Judge Paul Friedman denied the FTC’s request for a preliminary injunction on August 16.  He rejected a request for an injunction pending appeal the next day.

The D.C. Circuit’s website hasn’t listed any argument on the FTC on its docket yet.  But we expect that they’ll move fast.

Barry Barnett

Our feed goes whole hog.

People come up to Blawgletter on the street all the time and ask:  "How do you find out about federal court of appeals decisions so fast?  What secret do you have?"

Simple.  We’ve found the shortcuts to the courts’ opinion pages.

You can get them, too.  Below find links to the 10 best court of appeals opinion pages, which you can access with just one click:

• Third Circuit
• Fourth Circuit
• Fifth Circuit
• Sixth Circuit
• Eighth Circuit
• Ninth Circuit
• Tenth Circuit
• Eleventh Circuit
• D.C. Circuit
• Federal Circuit

Of course, if you want to know about the most important business litigation decisions and would prefer to let someone else do the work, you can always subscribe to Blawgletter.

Barry Barnett

Our feed works for you.

In a major decision today, the en banc Federal Circuit saved Seagate’s patent litigation counsel from having to produce confidential communications with the company and turn over attorney work product.  On its way, the court clarified the patent law standard for a finding of "willful infringement" — a finding that may trigger a doubling of damages.  It also restricted the waiver of privilege that arises from asserting advice of counsel as a defense to a willful infringement claim.  In re Seagate Technology, LLC, Misc. No. 830 (Fed. Cir. Aug. 20, 2007) (en banc).

Reviewing its own brief history, the court concluded that its 1983 formulation of what counts as willfulness will no longer do.  The old test seemed to the court "more akin to negligence" than to the "recklessness" that sets the threshhold for enhancing damages in non-patent contexts.  So the court redid the standard.  From now on:

[T]o establish willful infringement, a patentee must show by clear and convincing evidence that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent. . . . The state of mind of the accused infringer is not relevant to this objective inquiry.  If this threshold objective standard is satisfied, the patentee must also demonstrate that this objectively-defined risk (determined by the record developed in the infringement proceeding) was either known or so obvious that it should have been known to the accused infringer.

Slip op. at 12 (citation omitted).  But the court left "it to future cases to further develop the application of this standard."  Id. (footnote omitted).

The second part of the opinion will bring joy to patent litigators who represent defendants.  In it, the court held that asserting advice of counsel normally waives privilege only as to the pre-lawsuit work of the counsel who gave the advice.  The waiver thus doesn’t extend to what litigation counsel does — stuff that most of the time will happen after a lawsuit begins.

The waiver analysis underscores yet again the importance of keeping your "opinion" counsel separate from your litigation.  Mixing the two can have volatile results.

Barry Barnett

Our feed shakes things up.  Sometimes willfully.