Seventh Circuit Judge Richard Posner today upheld (with help of course) a ruling against a plaintiff class that accused a pair of firms from the Great White North of scheming with U.S. outfits to raise the price of sulfuric acid, a by-product for the Canadians of smelting non-ferrous metals like nickel and copper.

The class claimed that a pact to replace domestic H2SO4 with H2SO4 from across the border hurt competition here and by that means raised prices in the land of the free and the brave.

Judge Posner seems to have thought the claim plausible but not so clear as to deserve per se treatment. The panel thus upheld dismissal of the case, which the plaintiffs refused to pursue under a rule of reason test.

That Judge Posner felt bafflement with the plaintiffs' choice may understate the case. Oh well. In re Sulfuric Acid Antitrust Litig., No. 12-1109 (7th Cir. Dec. 27, 2012).

Server
Server.

You know the server that allows you to view this post, from any spot in the world, might sit at any place on that same Earth, right?

But do you intend to access the post from a particular server, in a specific spot?

Whew! Good for you. Because if you did, you might have consented to trial in the remote server's not-very-convenient (for you) location. See MacDermid, Inc. v. Deiter, No. 11-5388 (2d Cir. Dec. 26, 2012) (holding that Connecticut court may exercise personal jurisdiction over Canadian who may have accessed employer's confidential information on server in Waterbury after learning of her "impending termination").

One time, to get home for Christmas, I caught a bus in Connecticut, boarded another one in a scary part of New York, rode across the nation's midsection before cutting south, and ended up in Henderson, Texas.  My dad picked me up there and carried me home. He did things like that all the time.

I passed the time on the Greyhound by reading a long paperback.  You know it, I bet. The writer, a Spaniard, Miguel de Cervantes, told the tale of a knight-errant, Don Quixote, and his faithful companion, Sancho Panza, in the early 1600s.

One of the most memorable (and funniest!) parts of the book springs to mind:

OF THE GOOD FORTUNE WHICH THE VALIANT DON QUIXOTE HAD IN THE
TERRIBLE AND UNDREAMT-OF ADVENTURE OF THE WINDMILLS, WITH OTHER
OCCURRENCES WORTHY TO BE FITLY RECORDED

At this point they came in sight of thirty forty windmills that
there are on plain, and as soon as Don Quixote saw them he said to his
squire, "Fortune is arranging matters for us better than we could have
shaped our desires ourselves, for look there, friend Sancho Panza,
where thirty or more . . . giants present themselves . . . ."

"What giants?" said Sancho Panza.

"Those thou seest there," answered his master, "with the long
arms, and some have them nearly two leagues long."

"Look, your worship," said Sancho; "what we see there are not giants
but windmills, and what seem to be their arms are the sails that
turned by the wind make the millstone go."

*  *  *  *

Like Cervantes, my dad, Don Barnett, made me smile.  A lot. This holiday season, I hope you, too, fondly remember people you loved and who loved you but have passed away. Also friends and neighbors and people you don't know, very well or at all, and those they have lost.

They may be giants.

If you want to jam a stick in the spokes of the turning wheel we call litigation, how do you get the most bang for your buck?

Here's how: You hire a lawyer. But you don't  pay him. And then you fire him. You retain a new one. Ignore her bills. Let her go. Repeat the process.

Again. And. Again.

It looks like a great plan. You get legal help that aids you in stopping efforts to cast you in judgment but costs you little or nothing. And getting a new lawyer up to speed slows things down further. If you can keep going this way, you just might wear your adversaries — and the judge — out.

What does a judge do when a serial-lawyer-firing litigant behaves in a stick-jamming-in-the-wheels-of-justice way like this? Order him not to fire any more lawyers? Direct him to pay the ones he let go? Enter a default judgment? Or address the problem head-on — by, say, putting his assets in the hands of a receiver for purposes of making him pay lawyers, past and current?

You can't do that last thing, the Fifth Circuit ruled today. It said:

We conclude that the receivership improperly targeted assets outside the scope of litigation to pay claims of Baron's former attorneys and control Baron's litigation tactics. This was an improper use of the receivership remedy. The order appointing a receiver is vacated.

Netsphere, Inc. v. Baron, No. 10-11202, slip op. 23-24 (5th Cir. Dec. 18, 2012).

The astonishing thing? The panel said no but offered their colleague very little guidance on what he could do to deal with an apparently very adept, ahem, user of the legal system. Merry Christmas, indeed.

Bonus:    The Federal Circuit held that the U.S. Patent and Trademark Office did not err in refusing to register a trademark in the phrase "C*#K SUCKER", which adorns chocolate lollipops in the shape of a rooster, on grounds of vulgarity. In re Fox, No. 12-1212 (Fed. Cir. Dec. 19, 2012). Imagine that.

 

Way back when, a long time ago, Company X granted Company Y a broad license to some of Company's X's patents. Let's call them the "Original Patents".

Company X later assigns the Original Patents to Company Z. But Company Z thinks the Original Patents didn't go far enough in making claims to the subject matter of the inventions. Company Z ergo asks the U.S. Patent and Trademark Office to reissue the Original Patents — a process that kills the Original Patents and, for most purposes, replaces them with Reissue Patents, without broadening the scope of the inventions but perhaps making the scope of the claims wider.

Does the broad license of the Original Patents cover the Reissue Patents? Yes, the Federal Circuit held today. The panel said:

The [license] Agreement does not explicitly discuss reissue patents, bu the grant of license under the [Original Patents] is without limitation and without reference to any specific [patent] claims. The Agreement thus evinces the parties' intent that the license so granted extend not only to the claims then in existence but also to the full scope of any coverage available by way ot reissue for the invention disclosed. To interpret the Agreement otherwise would allow the unilateral act of the licensor to place the licensee, which sought to eliminate any infringement risk and effect a global peace with the licensor for all claims in all patents, in a position of being exposed to further risk relating to the exact same inventions that were subject to the license.

Intel Corp. v. Negotiated Data Solutions, Inc., No. 11-1448, slip op. 13 (Fed. Cir. Dec. 17, 2012) (applying California law). The court thus upheld summary judgment in favor of Intel on Negotiated Data's claims that Intel infringed the Reissue Patents.

The federal man came from grim shellshock on the swampy mainland far north, just this side of the line. It didnt matter. He must feel anguish. The yowling menace he saw meant that nothing but quietus would suit his alien vision of needful harsh loss. Or maybe just a license.

The old guy watched the man write the ticket. Who wouldve thought you could get in trouble for six-toes, he thought. What the [unprintable] did the extra pads matter, he said to no one except the night air but really maybe the cicadas.

Snowball, he said in a whisper. We thought you was a boy.

See 907 Whitehead Street, Inc. v. Secretary of Agriculture, No. 11-14217 (11th Cir. Dec. 7, 2012) (holding that museum in Ernest Hemingway's winter home on Key West during the 1930s needed a federal license to "exhibit" 40-50 "polydactyl" cats, many of which descended from the fecund Snowball).

You don't get to meet the Chief Judge of a U.S. Court of Appeals every day. Unless perhaps you work for her or belong to his nuclear family.

Blawgletter had the honor of having a visit with Chief Judge Dennis Jacobs, who presides over the Second Circuit, at our firm's open house last week in New York City. We found him fun to talk with. We noted that his Court starts each opinion with a "blurb" and the name of the judge who made the Ruling in Question. No other court of appeals does that. We don't know why.

Anyway, we left our tete-a-tete with His Honor feeling even better about his Court. And today we saw a brand-new opinion by none other than Chief Judge Jacobs.

The blurb says this:

Ment Bros. Iron Works, Inc. appeals from a judgment of the United States District Court for the Southern District of New York (Hellerstein, J.) granting summary judgment in favor of Interstate Fire & Casualty Co. in an insurance dispute. Reversed.

Ment Bros. Iron Works, Inc. v. Interstate Fire & Cas. Co., No. 11-2596, slip op. at 1 (2d Cir. Dec. 11, 2012).

Elegant, no?

The fight related to coverage for a property damage claim against a welding subcontractor — Ment Bros. — whose welding sparks seem to have damaged windows in the penthouse of a new apartment building at 40 Mercer Street, in the Soho area of NYC. The building owner wanted Ment Bros. to pay for the harm, and Ment Bros. in turn desired its insurer, Interstate, to defend against and if necessary pay the claim. Interstate balked.

So did the district court. The dispute boiled down to whether 40 Mercer qualified as a "residential propert[y]" and if so whether it also constituted "apartments". The policy excluded coverage for "residential properties" other than ones with nothing but "apartments". Interstate pointed out that the owners always wanted to sell the units in the building as "condominiums" and not to rent them as "apartments". The district court gave that fact great weight and thus ruled that the claim fell within the exclusion for "residential properties".

The Second Circuit reversed. Chief Judge Jacobs wrote:

The contract wording governs. Whatever the developer's design or marketing plan, the wording of the exception to the exclusion, and the related definitions, indicate that Ment was covered. Moreover, the qualifying language in the policy supports the view that an apartment is not a condominium until after conversion:

In the event any "apartment" to which coverage under this policy applies is converted to a " condominium, . . . ", then coverage under this policy is excluded for any claims for . . . "property damage" arising out of . . . the construction of said "apartments" which occur after the conversion of the "apartment" into a "condominium, townhome or multi-family dwelling." J.A. 87 (emphases added).

Interstate does not dispute that at the time the damage occurred, the 40 Mercer project was owned by and titled to a single owner.

Id. at 12-13 (applying New York law).

By the way, the project looks mighty high-end to us. See, for instance, this:

40mercerhighline_11_12.jpg

Today the Supreme Court granted review in Federal Trade Comm'n v. Watson Pharmaceuticals, No. 12-416 (U.S.), an antitrust case that presents the question of whether section 1 of the Sherman Act bars Competitor A from paying Competitor B to delay rolling out a generic drug that vies for sales with Competitor A's brand-name drug. Posts here and here.