Epson Imaging Devices Corporation yesterday agreed to confess guilt, and pay a $26 million fine, for fixing prices on thin film transistor liquid-crystal display panels.
The plea deal follows ones by LG Display, Sharp, Chungwa Picture Tubes, and Hitachi Displays.
Edward M. Kennedy (1932-2009).
For those whose cares have been our concern, the work goes on, the cause endures, the hope still lives, and the dream shall never die.
Edward M. Kennedy, Address to the Democratic National Convention, August 12, 1980.
Blawgletter adores people who ponder, and write about, Things That Really Matter.
One of those we admire most, Charles Darwin, told about natural selection. He wrote, when Queen Victoria ruled, that flora and fauna evolve in ways that fit them to endure the cold cruelness of our world — else other plants and critters will defeat them in the millenia-long battle to survive.
Mr. Darwin's most famous book, On the Origin of Species (1856) — which we've read nearly to the end — will persuade most all — as it has us! — that his theory makes good sense. A great many readers will, indeed — like us! — conclude that Mother Nature rewards the winners . . . and kills the losers . . . but does so over huge spans of time . . . kajillions of years. And these folks may even believe – like us! — that Darwin's theory leaves plenty of room for God.
Another broad thinker, William Royal Furgeson, Jr., has lately written at Some Length about a single sentence — one that matters a Great Deal to lovers of democracy. It says:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Judge Furgeson's new essay on this, the seventh amendment, opens thus:
Civil jury trials in America have been declining at a steady rate for the last thirty years. This trend has been well-documented. If the trend continues, within the foreseeable future, civil jury trials in America may eventually become, for all practical purposes, extinct. The purpose of this essay is not, however, to pen a eulogy to the civil jury trial; rather, it is (1) to recite the reasons why the jury trial has been and continues to be crucial to America's civil justice system; (2) to examine the reasons why it is in decline; and, in so doing, (3) to suggest approaches that might return it to its rightful place in American jurisprudence.
Royal Furgeson, "Civil Jury Trials R.I.P.? Can It Actually Happen in America?", 40 St. Mary's L.J. 795, 797 (2009).
We admire, and share, Judge Furgeson's passion for civil jury trials. We agree, with him and Tocqueville, that trial by jury in civil cases "invests each citizen with a kind of magistracy" and serves " as one of the most efficacious means for the education of the people which society can employ."
Thank you, Your Honor!
The Judicial Panel on Multidistrict Litigation has set September 24 as its next hearing session. Their Honors will convene at the Lewis F. Powell, Jr., U.S. Courthouse in Richmond, Virginia.
The 20 Section A matters — the ones on which the Panel will hear argument — include In re Battlefield Waste Disposal Litig., MDL No. 2083; In re Fairchild Greenwich Group Securities Litig., MDL No. 2088; In re Airline Baggage Fee Antitrust Litig., MDL No. 2089; and In re Wells Fargo Checking Account Overdraft Litig., MDL No. 2101.
Nathan Koppel and Ashby Jones shock the world in the WSJ today with news that the "'Billable Hour' [Has Come] Under Attack" and that, "In Recession, Clients Push Law Firms for Flat-Fee Contracts".
Big clients seem to have learned that paying by the hour promotes waste. The risk of sloppy, useless, and hurtful work falls only on the client. A flat fee, on the other hand, shifts some of the risk to the lawyers; it also rewards lean staffing.
Do flat fees produce the same (or better) legal outcomes for clients? What do you clients out there say?
See The Hourly Fee Must Die; Hourly Fee as Enemy — of Joy!; The Hourly Fee Must Die — Some More.
The world we live in — at least the for-profit piece of it – uses software and high-level math to help figure out what makes our hearts sing and shout. If sellers know our likes and loves, they can refine and target their pitches and sell more stuff.
Algorithms, you know.
Today the Second Circuit gave its blessing to an Internet radio service, LAUNCHcast, that used info about each user's musical leanings to pick and play songs it predicted he'd enjoy. Something along the lines of: If a Tiffany liked Rock Lobster, she'd likely also get a good vibe from Love Shack. (And, probably, The Hunting of the Snark.)
The fact that LAUNCHcast didn't let users choose songs mattered because an "interactive" service — one that does permit choice — must pay full copyright royalties. Passive ones remit a lot less. The court held that LAUNCHcast qualified for the lower rates. Arista Records, LLC v. Launch Media, Inc., No. 07-2576-cv (2d Cir. Aug. 21, 2009).
Alexandra G. White likes patents.
The Federal Circuit said in Akazawa v. Link New Technology Int'l, Inc., 520 F.3d 1354 (Fed. Cir. 2008), that state law decides who owns a federal patent. Unless Party X assigned the patent to Party Y. Then federal law controls. Of course.
Anyway, a case the court ruled on today raised the question of whether a foreclosure sale passed ownership of patents to the buyer. By operation of law — state law — you see. If it did, the buyer could — and did — convey the patent to the party that sued for infringement.
The court held that a lender's purchase of a debtor's patents in a foreclosure auction that complied with Commonwealth of Massachusetts law made the lender the owner of the patents for purposes of standing to sue for infringement. The court thus sent the case back to the Eastern District of Texas for trial. Sky Technologies LLC v. SAP AG, No. 08-1606 (Fed. Cir. Aug. 20, 2009).
Blawgletter's firm has the Sky side of the case. SG associate Alexandra G. White argued the appeal. Way to go, Lexie!
Our feed admires the ability of Massachusetts law to pass title to claims, too.
Today the Federal Circuit held en banc that a statutory ban on end-running U.S. patent law doesn't apply to "method" patents.
Congress passed the ban, which you'll find at 35 U.S.C. 271(f), in 1984. It aimed to void Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972), in which the Court held that the export of machine pieces for assembly overseas didn't count as patent infringement. Section 271(f) counters Deepsouth by saying that you can't avoid infringement by completing domestic work in foreign climes.
The full court ruled (with a lone dissenter) that the ban doesn't reach "method" or "process" patents, which claim a series of steps that produce results instead of a thing that results from those steps. Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 07-1296 (Fed. Cir. Aug. 19, 2009) (en banc). Taking a step in the U.S. and another in Kazakhstan (say) to make a widget thus won't get you into section 271(f) trouble if you infringe a patent that claims a method for widget-making but will endanger you if you infringe a patent that claims the widget itself.
The newest justice on the U.S. Supreme Court gets last choice of the 13 Circuit Justice spots.
Today the Court assigned Associate Justice Sonia Sotomayor to ride herd over the Tenth Circuit, which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
Former Associate Justice David Souter's spots went to Associate Justices Stephen Breyer (First Circuit) and Samuel A. Alito, Jr. (Third Circuit).
The nuts and bolts of motion practice often baffle new lawyers. Perhaps their profs felt that lifting the veil on so mundane a thing would demean both pedant and learner. Or maybe they themselves never tried to learn.
In any case, a key nut or bolt — Blawgletter forgets which — involves proving up the realness of papers and things — memos, letters, spread sheets, contracts, widgets, thermonuclear devices, and whatnot – that your side desires to use as evidence.
Some old school lawyers will say get an affidavit to meet the Rule 901(a) mandate for "authentication or identification". Some savvy ones will tell you instead to obtain a declaration, under 28 U.S.C. 1746, which saves you from having to find a notary public to witness the declarer's signing. Others still will point you to Rule 902, which lists things that self-authenticate.
Today the Tenth Circuit held that the looks of stuff can get the stuff over the Rule 901 hurdle.
The district court, you see, ignored a pile of documents that Party B filed to oppose Party A's motion for summary judgment. Many in the pile bore the letterhead of Party B; others didn't but still looked real enough and came from Party B's files. Reversing, the court of appeals said:
Rather than considering each document to detemine whether it was authenticated, the district court summarily disregarded these exhibits because "no authentication by any witness [wa]s offered." . . . Because no authenticating affidavit is required . . . the district court committed an error of law by categorically disregarding these exhibits and therefore abused its discretion . . . .
The Law Co., Inc. v. Mohawk Construction and Supply Co., Inc., No. 08-3076, slip op. at 13 (10th Cir. Aug. 17, 2009).
The panel quoted Rule 901(b)(4), which says that "[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances" may show genuineness.
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