Norman and Genevieve Broussard today won a $2.5 million punitive damages verdict in their federal lawsuit against State Farm Fire & Casualty, The Washington Post reports.  State Farm refused to pay under the Broussards’ homeowner policy for damage from Hurricane Katrina, claiming that rising water instead of wind destroyed the couple’s domicile in South Mississippi.  The judge granted judgment as a matter of law for the Broussards on State Farm’s liability before submitting the punitive damages question to the jury.

State Farm meanwhile continues negotiations to settle hundreds of other homeowner claims. 

The GEICO gecko had no comment.

The ferment regarding Apple Inc. came to mind this afternoon as Blawgletter sampled the appellate opiniosphere.  One decision stood out because its name recalls another kind of apple, the Fuji.  The case — Fuji Photo Film Co., Ltd. v. Int’l Trade Comm’n, Nos. 04-1618 & 05-1274 (Fed. Cir. Jan. 11, 2007) — upheld findings that a disposable camera importer violated a U.S. International Trade Commission "cease and desist" order.  See the opinion here.

The Fuji case involves the arcane but important realm of ITC exclusion orders, which bar importation of goods that infringe U.S. patents. 

Fun fact:  Texas Instruments pioneered the strategic use of exclusion orders two decades ago when it successfully petitioned the ITC to enforce TI patents covering chip (specifically DRAM) technology.  See the 1987 exclusion order here.

Another fun fact:  TI got out of the DRAM business before DRAM manufacturers started fixing prices.

Steve Jobs and John
Chambers of Cisco

An Apple spokesperson describes as "silly" the lawsuit that Cisco filed yesterday against Apple for using Cisco’s iPhone® trademark.  Blawgletter doubts Apple’s characterization but also wonders whether Apple CEO Steve Jobs really minds the publicity so much.

Jobs’s unveiling of the "iPhone" on January 9 nudged articles about his role in Apple’s options-backdating scandal off the front page. 

Cisco’s lawsuit announcement the next day pushed them deeper. 

The Cisco press release notes that, for years, the company tried to negotiate a trademark deal with Apple but that Apple kinda sorta blew them off at the last minute.

Did Jobs just get too busy to talk with his friends at Cisco?  Or does he prefer media coverage of a "silly" legal problem over headlines about a grave one?

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A new press release discloses that Cisco sued Apple over — guess what — the "iPhone" name.  Per the release, Cisco registered "iPhone" as a trademark in 2000. 

Apple unveiled its new iPhone to great fanfare yesterday. 

The press release goes on:

"Cisco entered into negotiations with Apple in good faith after Apple repeatedly asked permission to use Cisco’s iPhone name," said Mark Chandler, Cisco’s general counsel.  "There is no doubt that Apple’s new phone is very exciting, but they should not be using our trademark without our permission."

Cisco filed the lawsuit in the U.S. District Court for the Northern District of California.

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Words matter.  Just ask Frank Luntz.

But before we get to Dr. Luntz, go right now to the website of the National Oceanic and Atmospheric Agency.  There you will see a "Top Story" about a "general warming trend" nationally and worldwide.  NOAA reports that "the rate of warming has accelerated over the past 30 years, increasing globally since the mid-1970s at a rate approximately three times faster than the century-scale trend."

Today’s issue of The New York Times sees the NOAA study as a possible watershed.   It emphasizes that, under the current administration, NOAA never before "said unequivocally that a buildup of greenhouse gases was helping warm the climate."

Which brings us back to Frank Luntz, author of Words That Work (2007).  Dr. Luntz helped transform how politicians talk about issues.  He persuaded the GOP to speak, for example, about the "death tax" instead of the "estate tax".  He also advocated calling "privatization" of Social Security "personalization".  He believes that using the right words can alter gut reactions and therefore rally support for policies.

Dr. Luntz counsels pols to soften "global warming" to "climate change".  Global warming scares people, but climate change sounds more benign.

So what should Blawgletter’s law firm call its newest practice area — Climate Change Litigation or Global Warming Litigation?

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Alan Murray writes today in The Wall Street Journal about lawyers-as-CEOs.  He says:

There’s clearly some sense to this. Lawyers are trained to foresee risk, making them well-suited for times of trouble. Perhaps more important, they understand what it means to be a fiduciary, acting in trust on someone else’s behalf. Messrs. Nardelli [Home Depot] and McKinnell [Pfizer] clearly failed to grasp that basic tenet of public-company leadership.

Mr. Murray also quotes Philip Howard, who wrote The Death of Common Sense and often opines about what he sees as excesses of the civil justice system:

We’re more concerned with legal compliance than with getting the job done. If you have an economy where people circle the wagons and try and prevent anything bad from happening, the economy will suffer.

Messrs. Murray and Howard don’t necessarily hold opposing views about the utility of lawyers as corporate chief executives.  But Mr. Murray does manage to express his perspective with a ray or two of sunshine.  Atta boy, Alan.

The U.S. Supreme Court held today that you can pay patent royalties and sue the patent holder in federal court to establish that you don’t have to pay royalties.

The dispute involves MedImmune, Inc., and Genentech, Inc.  The companies entered into a patent licensing agreement in 1997.  Genentech later sent a letter accusing MedImmune of infringing a Genentech patent and demanded royalties per their agreement.  MedImmune paid under protest but also brought a declaratory judgment action challenging the validity and enforceability of the Genentech patent and denying infringement.  The district court dismissed for lack of a "case or controversy", and the Federal Circuit affirmed.

The Supreme Court reversed in an 8-1 decision.  MedImmune, Inc. v. Genentech, Inc., No. 05-608 (U.S. Jan 9, 2007).  See the opinion here.

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In his Introduction to Ancient Greek History course, former Yale College Dean Donald Kagan dramatizes the role of citizen-soldier hoplites by having students form a phalanx.  He relates that such phalanxes often drifted to the right as they marched towards the enemy, sometimes passing the opposing phalanx as it, too, trended to starboard.

Why?  The professor explains that the hoplite on the extreme right of the front line — the "position of honor" — felt the exposure of a shield that covered only the left half of his body.  He unconsciously compensated by stepping slightly rightward, thus leading the whole phalanx on a diagonal.

Blawgletter mentions the story only partly because it likes stories.  No, Blawgletter also wants to raise a question about another famous Kagan — Elena Kagan, ex-Clinton official and judicial nominee, current Dean of the Harvard Law School, and Blawgletter’s favorite to become the next President of Harvard University.  (Derek Bok, the predecessor of Larry Summers as Harvard President, also served as HLS Dean before taking the top job.) 

Do ties of kinship connect Harvard Dean Kagan with Yale Dean Kagan?  And if so why doesn’t the former share the latter’s rightward political tendencies?

Blawgletter doesn’t know the answers.  Do you?

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