The Fifth Circuit denied a petition for writ of mandamus to compel a federal judge in Houston (S.D. Tex.) to rule on motions to intervene and to quash a subpoena.  In re Clients and Former Clients of Baron & Budd, P.C., and Occupational Medical Resources, Inc., No. 06-20835 & 06-20835 (5th Cir. Feb. 8, 2007) (per curiam).  The Houston judge declined to decide the motions out of deference to pending multi-district litigation in Philadelphia (E.D. Pa.).  Because the Philadelphia judge, as the transferee judge of the MDL, has authority to act as judge in any district — including the Southern District of Texas — the panel held that the Houston judge did not abuse discretion.

Barry Barnett

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The Federal Circuit today upheld a verdict and judgment that Dippin’ Dots couldn’t enforce its novelty ice cream patent against competitor Frosty Bites.  Dippin’ Dots, Inc. v. Mosey, Nos. 2005-1330 & 2005-1582 (Fed. Cir. Feb. 9, 2007) (holding patent claims "obvious" and unenforceable due to inequitable conduct in failure to disclose early sale).  But the sweet victory for Frosty Bites didn’t extend to its trial win on an antitrust counterclaim.  The court found insufficient evidence of fraud by Dippin’ Dots.

Barry Barnett

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For your enjoyment, Blawgletter reproduces below the all-time most popular item from Barnett’s Notes on Commercial Litigation.

Mattel released Rock’Em Sock’Em Robots in 1966. Red Rocker just knocked Blue Bomber’s block off.

William of Ockham lived in extreme poverty near East Horsley of 14th-century Surrey, England. A Franciscan friar, he thought a lot. He tried so hard to figure things out, in fact, that he decided not to strain his brain so much. Simple explanations usually trump complex ones, he concluded — we may assume after many hours of devout contemplation and a lot of ale-and-porridge suppers.

William’s view of the world has made his village famous. "Ockham’s razor" — which some call ontological parsimony — refers to William’s conclusion that an explanation with few assumptions will, more often than not, prevail over an account with many.

What the heck does that mean, you say? A little abstract for your liking? Don’t feel like the Lone Ranger.

But let’s see if we can put some meat on old Ockham’s bones. And let’s do try to tie his razor into commercial litigation somehow.

Party A breaks a contract to supply widgets to Party B. We want to know why. Most of us would assume, without knowing anything more, that a business reason motivated the breach — perhaps that Party A lost money on the contract. We wouldn’t jump to the conclusion that Party A’s widget factory burned down, that the president of Party A wanted to avenge a slight that he suffered in high school at the hands of Party B’s bully president, or that Martians unionized Party A’s workers and took them out on strike. William of Ockham would say we did right by not making more assumptions than necessary to explain Party A’s behavior.

That doesn’t mean, of course, that the widget factory, in fact, didn’t go up in flames, that Party A’s president didn’t want to get back at his teenage tormentor, or that an alien Norma Rae didn’t agitate for higher wages. Those things may have happened. But Friar William reminds us not to assume, without cause, that they did.

Trial lawyers intuitively use Ockham’s razor when they present a case to a judge or jury. They prune unnecessary assumptions. They slice out the non-essential, sharpen the simplest explanation that favors their clients, and slash away at gaps in the other side’s story. They may have never heard of William or Ockham or ontological parsimony, but their instincts tell them that Ockham’s razor cuts deep indeed.

Barry Barnett

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No price-fixing recovery for overseas MSG
buyers.

The Eighth Circuit today joined the D.C. Circuit in holding that foreigner victims of price-fixing may not recover under the Sherman Act unless they show that the the price fixers’ domestic activities proximately caused their overseas injury (overpayments for the relevant product).  In re Monosodium Glutamate Antitrust Litig., Nos. 05-4303 & 05-4307 (8th Cir. Feb. 8, 2007) (adopting test from Empagran S.A. v. F. Hoffmann-Laroche, Ltd., 417 F.3d 1267 (D.C. Cir. 2006), cert. denied, 126 S. Ct. 1043 (2006)).  The court affirmed dismissal of claims by companies that bought monosodium glutamate in transactions outside the U.S.

Barry Barnett

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Nonrefundable = not refundable.  Not refundable at all.

Yesterday, the First Circuit held that airline customers who bought nonrefundable tickets can’t sue under state or federal law to recover the nonrefundable fares.  The outcome seems obvious, except that the court didn’t rule on the claims’ merits.  It instead concluded that federal law didn’t provide a cause of action and that a federal statute (the Airline Deregulation Act) preempted state law claims.  See Buck v. Am. Airlines, Inc., No. 06-1625 (1st Cir. Feb. 7, 2007).

Senior Circuit Judge Selya, who wrote the panel’s opinion, continued his streak of using words no one else has heard of — including "pleochroic", "periphrastic", and "supererogatory".  Blawgletter will let you look them up yourself.  As Blawgletter had to do.

Barry Barnett

Never supererogatory.  Always free.

Blawgletter recollects a greeting card whose front shows a guy in a meadow.  The message inside says "To a Man Out Standing in His Field".  Funny.

The lawyer-rating outfit Chambers and Partners honors eight Susman Godfrey lawyers this year as leaders in their field.  Blawgletter — who gets mentions in Antitrust and Commercial Litigation — urges readers to check it out.

Barry Barnett

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Why do lawyers, and judges, use passive voice in their writing?  Don’t they know better?

Perhaps not.  Every day we read briefs and opinions full of passive voice as if it showed extra super cleverness.  Blawgletter adores, but begs to differ with, those writers.

First look at the difference between passive and active voice.  In the last paragraph, for instance, passive voice would say something like:  "Briefs and opinions are read by us every day and are filled with passive voice as if extra super cleverness was shown by its use.  They are disagreed with by Blawgletter."

(If you like the second way better than the first, stop reading.  Now, please.)

A big problem with passive voice, aside from the tedious and fuzzy writing it produces, especially for trial lawyers:  You can’t convey emotion nearly as well. 

Which do you like better, viscerally:

• "Beauty killed the beast" — or "the beast was killed by beauty"?
• "Let us bind up the nation’s wounds" — or "the nation’s wounds are to be bound up by us"?
• "The arc of the moral universe bends toward justice" — or "the arc of the moral universe is bent toward justice"?
• "You had me at hello" — or "I was had by you at hello"?

Blawgletter believes that it NEVER, EVER, EVER uses passive voice (unless it shows up in a quote).  First reader to prove otherwise wins a free subscription to Blawgletter — and we will throw in Barnett’s Notes, too.

Barry Barnett

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Yale College and Harvard Law.
Oh, well.  Nobody’s perfect.

Blawgletter delights to read almost anything by U.S. Circuit Judge Richard A. Posner, polymath.  So the arrival today of an opinion bearing Judge Posner’s signature prompted a feeling of pleasant anticipation.  Blawgletter expected to learn something from the pithy master.  His Honor did not disappoint.

The case concerns a "descriptive" trademark, which "picks out a product characteristic that figures prominently in the consumer’s decision whether to buy the product or service in question."  As Judge Posner explains, the law doesn’t protect a descriptive trademark unless it has acquired a "secondary meaning" among consumers:

In time, a term that originally was descriptive may come to signify to consumers a single brand.  A new product may require a descriptive name to introduce consumers to it, but if the product catches on, the name may come to be uniquely associated with the original seller, and another term may come into use to describe the product.  For example, "All Bran" came to mean not any all bran cereal but a particular brand of all-bran cereal.  Once this happens, the term can be appropriated as a trademark because it has come to denote a single brand, not the entire product, so that its use by other sellers of the product would confuse consumers about the source of what they were buying.  In trademark parlance the descriptive mark will have acquired "secondary meaning" and now can be enforced against sellers that use the term or a confusingly similar variant.

Custom Vehicles, Inc. v. Forest River, Inc., No. 06-2009 (7th Cir. Feb. 7, 2007).  Other kinds of marks — "fanciful" ones, "arbitrary" ones, even "suggestive" ones — receive protection without acquiring secondary meaning.  But, because the plaintiff didn’t offer proof of secondary meaning for its descriptive trademark, the court affirmed summary judgment to the defendant.

Oh, yes.  Judge Posner also blogs.

Barry Barnett

P.S.  Check out award-winning Barnett’s Notes on Commercial Litigation (Feb. 2007).

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