You will recall that two years ago Volkswagen got in $14.7 billion worth of class action trouble for rigging software in its diesel cars to fake compliance with U.S. emission standards. The

We now learn that Volkswagen didn’t act alone.

Something rotten in Stuttgart

The German weekly news magazine Der Spiegel revealed over the weekend that, starting in 2006, Volkswagen teamed up with its Teutonic rivals BMW and Mercedes-Benz (Daimler) to avoid competing for customers.

Der Spiegel points particularly to the car makers’ savings of 80 Euros ($93) a vehicle from an agreement to limit the size of tanks holding the juice (mostly urea) allowing the emissions system to neutralize the nasty nitrogen oxide (NOx) that diesel engines emit. As a result, the cars had too little urea to knock out all the NOx. And that in turn made the software cheat necessary in order to obscure the vehicles’ failure to meet NOx emissions standards.

As Forbes wryly points out, when “you make 10 million cars a year, those 80 Euros quickly turn into real money.”

Ratting out the competish

Der Spiegel reports (with thanks to Google translator) that the cartel started decades ago:

The agreements of German car manufacturers are likely to form one of the largest cartel cases in German industrial history. They began in the 1990s and were extended to more and more subjects, probably because offenses against competition law in the [early] days were regarded as rather harmless rule violations, comparable to wrong parking.

The cartel came to light when Volkswagen turned itself in a few weeks ago. The company, which also owns Audi and Porsche, had turned over documents to Germany’s Federal Cartel Office in connection with an investigation of the steel industry. Der Spiegel notes:

Volkswagen itself then searched through all the documents that could be in this context and made them available to the cartel guards in Brussels and Bonn. This was by no means due to insight or remorse. The company wanted to take advantage of its last chance to get as far out of the matter as possible – by betraying everything and whistling the old partners.

(I guess “cartel guards” refers to antitrust enforcers and “whistling the old partners” means blowing the whistle on them.)

But the Mercedes-Benz folks also clamored to confess. Noting that which one begged for mercy first will determine which of them gets more lenient treatment, Der Spiegel concludes that in “this case, Daimler and Volkswagen are now competing with each other.”

Bwa-ha-ha.

What happens next

In the coming days, we will likely see a deluge of cases against Audi, BMW, Mercedes-Benz, Porsche, and Volkswagen.

They will at first mainly consist of putative class actions by individual owners of diesel cars and light trucks. Those cases will principally seek damages under state antitrust, consumer protection, contract, and unjust enrichment laws, but they may also request injunctive relief under federal antitrust law. Indirect purchasers like them do not have standing to,sue for damages under the federal Sherman Act.

Actions by dealers and other direct purchasers of Audi, BMW, Mercedes-Benz, Porsche, and Volkswagen vehicles will proceed under section 1 of the Sherman Act. These cases typically have the most value but take longer to develop and organize. Dealers have ongoing relationships with the manufacturers and tend to take a more circumspect approach to joining in litigation.

A big question will concern in which venue the dozens of cases from around the country will end up. That decision will fall to the Judicial Panel on Mulidistrict Litigation. Within several months, it will rule on which U.S. district court and which district judge to send the actions for pretrial proceedings.

The Panel chose Judge Charles Breyer in San Francisco for the fraud cases against Volkswagen. It may select him as well for the antitrust cases.

But the antitrust claims will have a broader scope. They won’t involve only the cheating on emissions. Per Der Spiegel, it will deal with a long-standing cartel that met hundreds of times and engaged in a variety of anticompetitive conduct.

The difference in focus and scope may prompt the Panel to transfer the cases to another district.

Candidates will likely include the Northern District of Georgia, U.S. headquarters of Mercedes-Benz and Porsche; the District of New Jersey, the U.S. Home of BMW; and the Eastern District of Virginia, where Volkswagen and Audi hang their American corporate hats.

U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In re Modafanil Antitrust Litig., 837 F.3d 238 (3d Cir. 2016).

As yours truly noted about the Third Circuit’s remand of the case in “No Class?“:

If the decision [on class certification] goes the defendants’ way, it will transform litigation of price-fixing claims against pharmaceutical makers. No longer will wholesalers have the ability to benefit from class settlements as passive class members. (AmerisourceBergen, for example, reported that it received more than $250 million from “antitrust settlements” since 2014.) The wholesalers must either forego recoupment of billions of dollars in overcharges or bring claims against their suppliers.

That stark choice now faces direct purchasers.

Existential threshold

The number of companies that can bring treble-damages claims against drug manufacturers for violating federal antitrust law has dwindled. The scarcity has grown so acute that last week it crossed an existential threshold.

For the first time ever, a federal judge in Philadelphia ruled that a class of direct pharmaceuticals purchasers did not meet the “numerosity” requirement of Rule 23(a)(1) for class-action treatment. See “Pharma Buyers Too Few for Class“.

The ruling may portend an end to similar class actions. With billions in treble damages at stake, the two dozen or so direct purchasers that once passively relied on class actions to recoup overcharges may have to rouse themselves.

Their ability to do so successfully will depend largely on the feasibility of pursuing the same claims on a non-class basis. What does the available evidence suggest?

Opt-Out Multiples Over Class Recoveries in Direct Purchaser Cases as Proxy

“It does not appear that anyone has undertaken and published a comprehensive empirical study that analyzes and quantifies the financial success of opt-out plaintiffs.” Charles H. Samel & Cori Gordon Moore, “Whether to Opt Out of Antitrust Class Actions: A Four-Step Checklist,” Corporate Counsel, May 26, 2015. Some examples are nonetheless available

Vitamins (2.28X). A price-fixing case by direct purchasers against a cartel of vitamins manufacturers yielded a class settlement totaling $1.17B. After the district court preliminarily approved the global pact, class members representing 75 percent of vitamins purchases opted out of the class.

They did well. “The opt-outs reaped more than $2 billion in settlements, driving down the size of the class settlement to about $300 million.” Krysten Crawford, “No More Mr. Nice Guy,” Corporate Counsel, June 1, 2004. The opt-outs thus took home roughly 2.28 times what they would have if they had stayed in the class and accepted their pro rata share of the initial class settlement ($2 billion ÷ [$1.17 billion x .75] = 2.28).

Methionine and Lysine (3X). A pair of price-fixing cases against Archer Daniels Midland accused it of fixing prices on two animal feed additives, methionine and lysine. The conspiracies generated criminal charges, guilty pleas, and a movie, The Informant!  Quaker Oats opted out “and recouped three times the amount it would have pocketed as a class member”. Id.

TFT-LCD Panels (3.5X). The direct purchaser price-fixing class action against makers of thin filter transistor and liquid crystal display monitors settled for a total of $437 million. “TFT-LCD (Flat Panel) Products Direct Purchaser Antitrust Settlement”. Of the more than 75 opt-outs, three of them (Tech Data, All American Semiconductor, and Best Buy) settled for more than $529 million. “Opt-Out Plaintiffs Recover over $300 Million in LCD Antitrust Litigation,” Press Release, June 5, 2017. My firm’s opt-out clients also achieved resolutions providing substantial multiples.

Linerboard (largeX). The class claims against 12 linerboard makers settled for an aggregate of $202,572,489, an average of $2,500 for the 80,000 class members. Brandon J.B. Boulware & Jeremy M. Shur, “Opting Out of an Antitrust Class Action: Should Your Company Do It and, If So, When?,” The Antitrust Counselor, Dec. 2011. A group of 13 opt-outs reported settling with just one defendant, Weyerhaeuser, for $25 million, nearly $2 million apiece. Id.

So?

These anecdotes suggest that opt outs can do materially better by opting out than they could if they remain a passive class member in an antitrust class action. They also indicate that even if class actions become infeasible because of dwindling numbers among direct purchasers, individual cases may fill the gap, averting loss of opportunities to recover billions into in compensation for overcharges.

Today, United States District Judge Naomi Reice Buchwald in Manhattan issued LIBOR VII, in which the court granted class certification under Rule 23(b)(3) to a class of plaintiffs who bought over-the-counter instruments that paid interest in terms of the London Interbank Offered Rate (LIBOR) and who allege that LIBOR-setting banks conspired to suppress LIBOR during the 2007-09 financial crisis.

The court declined to certify the OTC plaintiffs’ state-law claims or any claims by two other plaintiff groups. See LIBOR VII.

Plaintiffs started filing actions alleging LIBOR suppression in 2011. The Judicial Panel on Multidistrict Litigation centralized the federal cases in the Southern District of New York before Judge Buchwald later that year.

The litigation has produced seven major rulings by the district court, two by the Second Circuit, and one by the Supreme Court. The later Second Circuit opinions came out last week. See Charles Schwab Corp. v. Bank of Am. Corp., No. 16-1189-cv (2d Cir. Feb. 23, 2018).

OTC plaintiffs have so far asked Judge Buchwald to approve class settlements totaling $490 million with Barclays, Citibank, and Deutsche Bank.

The court appointed Susman Godfrey LLP and Hausfeld LLP to serve as lead counsel for the class.

A golden age of civil antitrust, from the 1960s into the 1980s, enriched the victims of cartels and monopolies but upset corporate America.  The high cost of paying treble damages claims eventually provoked a spare-no-expense approach to defense. That in turn influenced the way plaintiffs prosecuted their Sherman Act claims.

Much the same thing has now happened with patent infringement cases, which had their own golden age in the last decade. What, if anything, can patent litigants learn from the antitrust experience? I think they can divine quite a lot. In this post, I will tell you why.

Bigger cases on average

The “millions for defense, but not one cent for tribute” attitude that developed in the antitrust defense bar and their gigantic clients aims to deter the bringing of cases in the first place. It also taxes the resources of the plaintiff, who may thus find out too late that she cannot afford to take a case through trial. Scorching the earth additionally makes a loss on the merits all the more painful for the plaintiff (or her counsel), who will have now lost a great deal of money as well.

Making the prosecution of civil antitrust cases more costly had a predictable demonstration effect over time. It principally resulted in an increase, on average, in the stakes at issue. A higher damages figure made the average Sherman Act case attractive enough to lawyers willing to work on a contingent-fee basis. It also rendered the case a better candidate for a worthwhile settlement, one that more than covered fees and expenses.

A similar dynamic exists in patent litigation. For companies that face a lot of infringement actions, the standard defense budget tops $1 million. The plaintiff needs a case worth more than $10 million in such circumstances to obtain the services of a capable contingent-fee lawyer, who will insist on a chance to earn at least three times his investment.

Aggregation

One way to make antitrust cases large enough to justify their risk and cost involves aggregation. Rule 23 of the Federal Rules of Civil Procedure permits one kind of aggregation — the class action. Rule 23 and its state-law counterparts allow even a single class representative to bring claims on behalf of hundreds, thousands, or millions of claimants who have similar claims. Class treatment could convert a small, hopelessly uneconomic one-off lawsuit into a juggernaut involving many hundreds of millions of dollars and possibly even billions.

The stakes-raising feature of the class action device has turned the class certification process into an extremely expensive battlefield. In a case that I have handled for more than a decade, for example, the parties submitted more than 30 different expert reports and presented live testimony and dozens of exhibits at a five-day evidentiary hearing.

Class members with larger claims may also choose to opt out of a class action. They generally engage lawyers who specialize in handling those sorts of cases, typically on a contingent-fee basis. The lawyers in those instances may serve as aggregators, enhancing their clients’ collective bargaining leverage while reducing average costs by spreading them over more claimants and higher aggregate damages.

Patent cases do not qualify as readily for class treatment. Nor can different patent holders band together to bring infringement claims as a group. The venue and joinder rules under the America Invents Act of 2012 made multiple-party patent cases much harder to bring.

But patent holders aggregate anyway. They do it by acquiring a critical mass of patents in particular fields and even entire portfolios. In May 2023, for instance, BlackBerry sold its 32,000 patents and patent applications, apparently for close to $1 billion.

The aggregation of patents in a single holder makes for a more formidable adversary. That has led the targets of their infringement lawsuits to call them names. A favorite rhymes with goal.

Specialization

The higher cost and greater complexity that came to characterize antitrust cases as defendants counterattacked them led to another device for managing risk on the plaintiff side. Taking a Sherman Act case across the juridical goal line now demanded a high degree of skill, mastery of the subject matter, and staying power. Few plaintiff’s firms could meet those criteria.

In 1980, Steve Susman founded the first litigation boutique, Susman Godfrey (my firm), which served as lead counsel in the largest price-fixing class action then working its way through the courts, Corrugated Container. The case produced a jury verdict for the plaintiff class and more than $360 million in settlements. Other boutiques have followed suit.

Boutiques that specialize in patent cases have likewise sprung up as infringement actions have proliferated. A significant part of my firm’s cases involve infringement claims. These firms’ trial-savviness, knowledge of the peculiarities of patent law and litigation, and financial resources are all but essential for high-stakes infringement actions.

Counterclaim avoidance

A factor that deterred antitrust cases — the possibility of having to defend against a counterclaim — also may limit the appeal of patent infringement cases. Antitrust claimants often avoided the counterclaim problem by taking a low profile in class action cases but then demanding a settlement at an opportune moment, usually after the class reached a resolution of the class claims. Assignment of claims to a trustee may also work.

Patent holders generally have two choices for dealing with the possibility of a counterclaim. Either they can build or buy a patent portfolio that enables them to overawe the defendant in a dueling-patent contest (Apple and Samsung provide an example), or they can limit their business to ownership, licensing, and litigation of patent rights and thus avoid countercharges of infringing conduct.

The second model tends to make repeat infringement defendants say undiplomatic things about patent holders that do not “practice” the inventions by doing or making things or providing services with them. But the non-practicing entities are simply doing what any sensible plaintiff would do if she could — avoiding a costly and complicating counterclaim.

Past as prologue

That an older type of high-stakes commercial cases can provide lessons for a newer kind should not surprise us. The basics of the civil justice system have not changed that much.

What do you think about the way patent infringement cases have followed a pattern similar to what happened with antitrust cases? Do you think the responses of defendants have gone over the top? Have they struck an appropriate balance? Or should they go even further?

Let your fellow readers know what you think.

• Buyer of rights to heart-valve repair device met promises to promote device with buyer’s usual “efforts and level of care”.
  • http://media.ca8.uscourts.gov/opndir/23/06/222125P.pdf
• Calling computer-security software “malicious” and a “threat” implied facts, not opinions, and therefore could violate Lanham Act.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/02/21-16466.pdf
• Order to “immediately cease” using near copies of trademark online amounted to injunction that lacked findings to support it.
  • https://www.ca4.uscourts.gov/opinions/221495.P.pdf
• Ideas for tweaks to patent on device for placing stents and other items in clogging arteries did not make patent obvious over prior art that 
  • http://cafc.uscourts.gov/opinions-orders/21-2359.OPINION.6-5-2023_2137076.pdf
• Debut, in reply brief, of ground for deeming car floor-tray patent obvious came too late.
  • http://cafc.uscourts.gov/opinions-orders/22-1373.OPINION.6-6-2023_2137962.pdf
• Under Copyright Act, 2,700 real estate photos in database did not constitute single work—or “compilation”—and use of each photo could support statutory damages award.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/06/07/22-35147.pdf
• Owners of oil and gas rights in two Wyoming counties showed they could prove relevant antitrust market, one firm’s dominance in that market, and common impact of firm’s anticompetitive leasing scheme on all members of owners’ class.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110870245.pdf
• First amendment didn’t protect chew toy that looked like a Jack Daniel’s bottle from trademark infringement claim.
  • https://www.supremecourt.gov/opinions/22pdf/22-148_3e04.pdf
• “Judges are not like pigs, hunting for truffles buried in briefs.”
  • http://cafc.uscourts.gov/opinions-orders/22-1269.OPINION.6-12-2023_2140695.pdf

• Elon Musk’s standing on both sides of Tesla’s purchase of SolarCity triggered “entire fairness” test, which Musk met at trial.
  • https://courts.delaware.gov/Opinions/Download.aspx?id=348500

Last month, the American Antitrust Institute and three economists moved to file amicus briefs in favor of an economic model that quantifies what Google describes as “happiness”. AAI and the economists seek to support opinion evidence in antitrust litigation against Google, In re Google Play Store Antitrust Litig., No. 3:21-md-02981-JD (N.D. Cal.), pending before U.S. District Judge James Donato. You can read the amicus briefs here and here and Google’s opposition here.

The opinion evidence comes from a professor, Marc Rysman, who heads the Department of Economics at Boston University. Dr. Rysman created an economic model that the plaintiffs hope to use to quantify the losses they claim consumers sustained due to anticompetitive conduct by Google. The plaintiffs allege that Google misused its monopoly power in the market for apps using the Android operating system for smart phones and tablets. Google moved to exclude the Dr. Rysman’s opinions, and the amici join the plaintiffs in opposing Google’s motion.

The debate, according to Google, boils down to whether Dr. Rysman’s model measures injury to “property” under Section 4 of the Clayton Act or to mere “happiness”. 15 U.S.C. § 15(a). The plaintiffs say the model provides a reasonable estimate of the lower prices consumers would have paid for the apps in a “but-for world” that would have existed if Google had not thwarted development of better apps. Damages, plaintiffs assert, equal the difference between the apps’ lower prices in the but-for world (without Google’s anticompetitive conduct) and the higher actual prices consumers paid (in the less competitive actual world). Google contends that Dr. Rysman attempts to value consumers’ loss of “happiness” rather than of “property” and depends on “abstractions” that lack grounding in real-world observations.

Google’s position strikes me as cute if not twee. Everyone agrees that antitrust laws aim to prevent losses to innovation (e.g., more variety in goods and services) and to quality (greater durability, better functionality, more pleasing appearance, and the like) through injunctive relief. Google claims that antitrust laws don’t provide a damages remedy after the losses have come to pass because consumers who would have paid less in the but-for world (without anticompetitive conduct) lack a “property” interest in what amounts to keeping more of their money.

The idea of quantifying losses to innovation and quality has an unfamiliar feel. Damages experts usually focus on measuring the price effects of price-fixing. But economics and econometrics should enable damages experts to use their long-standing principles and tools to produce reasonable estimates of the dollar value of greater variety and higher quality.

While existing antitrust doctrine has treated demonstration of price effects as almost essential to liability and damages, Dr. Rysman’s model offers a way to quantify those effects in the but-for world, where anticompetitive conduct does not exist. If successful, that kind of innovation will have price effects of its own–on the value of antitrust claims. No wonder Google opposes it.

Welcome to The Contingency‘s Commercial Roundup for June 28!

Since our last issue, much has happened, not least FeedSpot’s recognition of The Contingency as one of the 30 Best Antitrust Law Blogs and Websites.

The courts have also stayed busy as spring turned to summer. The U.S. Supreme Court ruled in two cases of interest to commercial trial lawyers and their clients. One of them breathes new life into a “consent” basis for personal jurisdiction (see Due process allows), and other resolves whether the federal Arbitration Act requires district courts that grant motions to compel arbitration to stay their proceedings (yes) (see Court must stay).

The Federal Circuit issued opinions in patent cases on obviousness (Use of two compounds) and co-inventors (Expandable hose patent). The Court also tossed the Trademark Trial and Appeal Board’s decision in a dispute over registration of a trademark that a trademark holder claimed would confuse consumers (TTAB mis-weighed), while the First Circuit upheld denial of attorney’s fees under the Copyright Act (Fight over who authored).

Meanwhile, the Third Circuit addressed a question of “falsity” under the Securities Exchange Act of 1934 (Claim that life insurer knew) and a question of “wrong-forum tolling” of limitations as an alternative to tolling that applies in the class-action context (American Pipe tolling).

The Eleventh Circuit’s decision in an appeal about discovery sanctions provides guidance on using “memory aids” and instructing witnesses not to answer question in depositions (WItness’s overuse).

The New York Court of Appeals upheld a “negligent supervision” claim against an investment bank (Investor stated), and the Supreme Court of Texas handed down several opinions on an array of subjects–limitations (Limitations defense may work), spoliation (Loss of video), sovereign immunity for claims arising from Winter Storm Uri (ERCOT dodges), non-liability of a plant owner’s owners under a “negligent undertaking” theory (Explosion of plant), and redemption of a law firm shareholder’s shares (Law firm founders).

Have a terrific Fourth of July weekend and holiday.

• Claim that life insurer knew death rate had risen a lot when its CFO called it “normal” and only “slightly negative” met “falsity” test under Securities Exchange Act of 1934.
  • https://www2.ca3.uscourts.gov/opinarch/211147p.pdf
• The Contingency lands on FeedSpot’s 30 Best Antitrust Law Blogs and Websites.
  • https://blog.feedspot.com/antitrust_law_blogs/
• Limitations defense may work despite no proof of exact date when claims accrued.
  • https://www.txcourts.gov/media/1456671/210797.pdf
• Loss of video didn’t require court to tell jury to infer its contents hurt plaintiff’s case.
  • https://www.txcourts.gov/media/1456672/220030.pdf
• Investor stated negligent supervision claim against investment bank that suspected account executive of diverting an $8.1 million fee from it.
  • https://www.nycourts.gov/ctapps/Decisions/2023/Jun23/52opn23-Decision.pdf
• American Pipe tolling didn’t save class member’s untimely lawsuit, but wrong-forum tolling might.
  • https://www2.ca3.uscourts.gov/opinarch/211365p.pdf
• Conflict between broad catch-all exclusion and statement of coverage in business insurance policy for “advertising injury” raised ambiguity that required insurer to defend business in class actions claiming violations of state statute limiting use of personal biometric-data.
  • http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D06-15/C:22-2313:J:Rovner:aut:T:fnOp:N:3060863:S:0
• Witness’s overuse of “memory aids” and counsel’s blocking of factual answers in 30(b)(6) depositions despite court’s cautions warranted dismissal of agency’s claims.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202114468.pdf
• Using two compounds to achieve a better result than using either would produce on its own was obvious.
  • http://cafc.uscourts.gov/opinions-orders/22-1489.OPINION.6-14-2023_2142361.pdf
• Expandable hose patent should have included aerospace engineer/physicist as co-inventor with sociologist he sought as investor.
  • http://cafc.uscourts.gov/opinions-orders/21-2316.OPINION.6-9-2023_2139976.pdf
• Sanctions against party for misuse of other party’s secret list didn’t satisfy due process.
  • https://www.ca5.uscourts.gov/opinions/pub/22/22-40028-CV0.pdf
• ERCOT dodges claims for power outages during Winter Storm Uri.
  • https://www.txcourts.gov/media/1456698/220056_220196.pdf
• Explosion of plant didn’t expose its owner’s owners to “negligent undertaking” claim.
  • https://www.txcourts.gov/media/1456700/220227.pdf
• Law firm founders could not force shareholder to accept their terms for redeeming his shares.
  • https://www.txcourts.gov/media/1456696/211014.pdf
• Court must stay its own proceedings during appeal from order denying request to compel arbitration.
  • https://www.supremecourt.gov/opinions/22pdf/22-105_5536.pdf
• Fight over who authored Game of Life didn’t warrant fee award under Copyright Act.
  • http://media.ca1.uscourts.gov/pdf.opinions/19-1927P2-01A.pdf
• TTAB mis-weighed likelihood of confusion factors in barring registration of trademark.
  • http://cafc.uscourts.gov/opinions-orders/22-1578.OPINION.6-26-2023_2147741.pdf
• State law barred legislature from changing election outcome.
  • https://www.supremecourt.gov/opinions/22pdf/21-1271_3f14.pdf
• Due process allows personal jurisdiction over firms whose registration to do business in forum state includes consent to appear in state courts.
  • https://www.supremecourt.gov/opinions/22pdf/21-1168_f2ah.pdf

Welcome to The Commercial Roundup for July 13, 2023. While the pace of new opinions has slowed, it has not stopped. And this issue includes the end of the Supreme Court’s 2022-23 Term.

• False statements about and manipulating reviews of nutritional supplements exposed Amazon vendor to disgorgement, attorney’s fees, and potentially punitive damages.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110878966.pdf
• Lack of support in spec and late change in reasons doomed attempt to rewrite patent claims.
  • http://cafc.uscourts.gov/opinions-orders/22-1165.OPINION.6-27-2023_2148484.pdf
• Supreme Court strikes down affirmative action, 6-3.
  • https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
• Lanham Act covers “use” of trademark in U.S. “commerce” but not use outside U.S.
  • https://www.supremecourt.gov/opinions/22pdf/21-1043_7648.pdf
• Test under Title VII for “undue hardship” in accommodating employee’s “religious needs” requires more than “de minimis” impact on employer’s business.
  • https://www.supremecourt.gov/opinions/22pdf/22-174_k536.pdf
• Antitrust agencies propose rule to enhance info about impact of mergers for Hart-Scott-Rodino review.
  • https://www.ftc.gov/news-events/news/press-releases/2023/06/ftc-doj-propose-changes-hsr-form-more-effective-efficient-merger-review
• Claims that cable sports network misled buyers about likely fees for showing Houston Astros games didn’t trigger anti-SLAAP statute as matter of public interest.
  • https://www.txcourts.gov/media/1456733/210641.pdf
• How to bond with jurors before they become jurors.
  • https://trialscienceinc.com/persuasion-tips/active-listening-from-the-couch-to-the-courtroom/
• Merchant that sells and delivers a product to a state subjects itself to personal jurisdiction in the state for claims relating to the product.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/05/21-17001.pdf
• Judgment in direct infringement action didn’t preclude later action for induced infringement.
  • http://cafc.uscourts.gov/opinions-orders/22-1385.OPINION.7-5-2023_2152171.pdf
• Stock buyer that sold before truth came out had standing to sue for securities fraud but couldn’t prove misreps caused it loss.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202210633.pdf
• Breadth of patent claims required broader view of prior art in obviousness test.
  • http://cafc.uscourts.gov/opinions-orders/22-1451.OPINION.7-10-2023_2154482.pdf
• FTC can’t block Microsoft deal to buy Activision.
  • https://www.washingtonpost.com/technology/2023/07/11/microsoft-activision-ftc-decision/?utm_source=alert&utm_medium=email&utm_campaign=wp_news_alert_revere&location=alert
• This looks like good news.
  • https://www.prnewswire.com/news-releases/vault-law-releases-2024-rankings-for-best-midsize-law-firms-by-region-and-best-midsize-law-firms-to-work-for-plus-the-top-150-under-150-list-301873797.html
• This looks okay.
  • https://businesstoday.news/exploring-10-most-influential-antitrust-cases-in-texas-top-attorneys-reveal/
• Nation’s promise to arbitrate before the ICC bound it to submit questions of arbitrability to the ICC.
  • https://www.ca2.uscourts.gov/decisions/isysquery/be60b340-cc78-4f57-b30a-c96e9abd6682/2/doc/22-825_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/be60b340-cc78-4f57-b30a-c96e9abd6682/2/hilite/
• Need for proof of class members’ standing to sue puts class certification at risk.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202113146.pdf
• Reissue patent couldn’t omit feature of original one.
  • https://cafc.uscourts.gov/opinions-orders/22-1438.OPINION.7-12-2023_2156183.pdf

Welcome to the Commercial Roundup for July 26, 2023. With the U.S Supreme Court and the highest courts of New York and Texas on hiatus, the Supreme Court of Delaware and nine of the 13 U.S. Courts of Appeals supplied the commercial decisions that Roundup has cut into little pieces for you to sample.

• Antitrust Division’s bid to block sugar refiner from buying a competing refiner should have defined the product market to include non-refiners.
  • https://www2.ca3.uscourts.gov/opinarch/222806p.pdf
• Registration of copyright in derivative work covered original work that the derivative work included.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/17/22-35345.pdf
• Issue class under Rule 23(c)(4) still must meet Rule 23(a) and one of the Rule 23(b) subparts.
  • https://www.cadc.uscourts.gov/internet/opinions.nsf/46E87D6F66D6DAB0852589F00054790D/$file/22-7033-2008350.pdf
• Montreal Convention granted subject-matter jurisdiction over air carriage disputes but not personal jurisdiction.
  • https://www.ca2.uscourts.gov/decisions/isysquery/f73e0a29-7c82-41b8-988a-b7b391b00aca/4/doc/21-2867_complete_opn.pdf
• Contract called for “expert determination” of a discrete issue instead of “arbitration” of parties’ dispute.
  • https://www2.ca3.uscourts.gov/opinarch/222181p.pdf
• $25 million award for insurer’s “aggravation” crossed into “punitive” territory.
  • https://www.ca4.uscourts.gov/opinions/221459.P.pdf
• Plaintiff’s denial under oath that he e-signed agreement required trial on whether he agreed to arbitrate.
  • https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0154p-06.pdf
• Absence of NDA kills trade secret claim.
  • https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0152p-06.pdf
• Despite loss on claim for damages, wholesalers might win injunction under Robinson-Patman Act of 1936.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/20/21-55397.pdf
• Drilling seven vertical wells instead of using one site to drill several directional wells did not materially interfere with use of surface by its owners.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110889806.pdf
• Board breached duty of loyalty by using charter to block votes for dissident slate of directors.
  • https://courts.delaware.gov/Opinions/Download.aspx?id=350310
• Single online sale of book in forum state didn’t confer personal jurisdiction over out of state seller for copyright infringement claim.
  • http://media.ca8.uscourts.gov/opndir/23/07/221885P.pdf
• Online market’s contributory liability for seller’s infringement of trademark rights depends on market’s “willful blindness” after notice of specific infringing uses.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/24/21-56236.pdf
• Non-final IPR invalidation of patent didn’t preclude infringement claim.
  • http://cafc.uscourts.gov/opinions-orders/22-2217.OPINION.7-24-2023_2161663.pdf

Bonus content:

• ”So far, no government or industry group has stepped forward to bring safety and order to the generative AI Wild West.”
• Antitrust enforcers issue draft of new Merger Guidelines for public comment.
• Antitrust enforcers must have more funding.

This late-summer edition of Commercial Roundup features a notable ruling on personal jurisdiction, a pair of False Claims Act decisions, a couple of opinions tossing class certification orders, a 2-1 split in a securities fraud case (the dissent has the better end of it), a rare victory for plaintiffs in an action for unlawful maintenance of a monopoly, a broadening of RICO to cover loss of wages as injury to “business”, an en banc extension of Title VII to discriminatory time off rules, approval of a way to defeat removal post-removal, and some patent and insurance matters. Enjoy!

• Way to go, Geng!
  • https://news.bloomberglaw.com/business-and-practice/theyve-got-next-the-40-under-40-geng-chen-of-susman-godfrey
• In-state schemer’s overt acts in support of scheme to defraud gave basis for personal jurisdiction over out-of-state schemer.
  • https://www.ca2.uscourts.gov/decisions/isysquery/4735c812-94a1-4175-90c0-585c0e02ba82/3/doc/21-2023_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/4735c812-94a1-4175-90c0-585c0e02ba82/3/hilite/
• Post-removal change in complaint to omit federal (antitrust) claims required remand of case to state court.
  • http://media.ca8.uscourts.gov/opndir/23/07/221796P.pdf
• COVID-19 virus didn’t cause closure of business by physically changing property and therefore didn’t trigger coverage of loss by insurance.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/07/31/22-35047.pdf
• Change in claim construction after IPR began entitled patent opponent to add reasons for rejecting patent as obvious and for claiming unpatentable subject matter.
  • https://cafc.uscourts.gov/opinions-orders/22-1532.OPINION.8-7-2023_2169283.pdf
• Filings in IPR didn’t trigger public disclosure bar to qui tam claims under False Claims Act.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/03/20-16176.pdf 
• Fire insurer didn’t prove as a matter of law that building owner refused to present its CEO for questions about arson.
  • http://media.ca1.uscourts.gov/pdf.opinions/22-1296P-01A.pdf
• New Rule 23(e)(2) bars old presumption that settling class claims at arm’s length assured deal’s fairness.
  • https://www.ca2.uscourts.gov/decisions/isysquery/3322d66d-8131-4a0f-bf37-1372beae9101/4/doc/21-2556_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3322d66d-8131-4a0f-bf37-1372beae9101/4/hilite/
• RICO allows claims for loss of wages.
  • https://www.ca2.uscourts.gov/decisions/isysquery/3322d66d-8131-4a0f-bf37-1372beae9101/1/doc/22-349_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/3322d66d-8131-4a0f-bf37-1372beae9101/1/hilite/
• Class cert order should have ruled on effect of class waiver in class reps’ contracts.
  • https://www.ca4.uscourts.gov/opinions/221744.P.pdf
• Granting men better time-off rights may violate Title VII despite absence of any “ultimate employment decision” on hiring, 
  • https://www.ca5.uscourts.gov/opinions/pub/21/21-10133-CV2.pdf
• Securities fraud complaint that alleged CEO and VP “knew” about “seismic problems” didn’t imply strongly enough that knowledge 
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905883.pdf
• Threats by holder of 97 percent market share to punish buyers of better and cheaper product from upstart rival supported 
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110905808.pdf
• Cancer-treatment patents die on anticipation and obviousness grounds.
  • http://cafc.uscourts.gov/opinions-orders/21-2063.OPINION.8-16-2023_2174973.pdf
• Under Rule 9(b), qui tam claim had to describe false charge or payment in detail.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202113673.pdf
• Lack of right to sue in trademark license didn’t bar licensee from suing for infringement.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202210985.pdf

Here you go–Commercial Roundup for the couple of weeks ending September 14, 2023

• Data breach that exposed plaintiff’s personally identifying information to hacker caused “concrete” harm and conferred Article III standing to sue
  • https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/9/doc/22-319_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/9/hilite/
• Notes from commercial loan syndication don’t qualify as “securities” under state blue-sky law.
  • https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/7/doc/21-2726_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/7/hilite/
• Forum rule” limited fee award to hourly rates lawyers in forum charged.
  • https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/3/doc/21-3127_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/3/hilite/
• Use of control to strip good assets from failing firm violated entire fairness standard and warranted $39.2 million award of damages.
  • https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/2/doc/21-2547%3B%2021-2576_complete_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/8c90c0a3-24ff-4991-9b0f-8d90fcd8a002/2/hilite/
• Jury waiver survives fraud claim unless waiver itself resulted from the fraud.
  • https://www.ca5.uscourts.gov/opinions/pub/22/22-40555-CV0.pdf
• Promise in franchise contract not to poach workers from other stores in chain might per se violate Secrion 1 of the Sherman Act. https://lnkd.in/gynf-DJU
• Statements that hid extent of NVIDIA’s sales to crypto miners supported securities fraud claim.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/08/25/21-15604.pdf
• Rule 15 didn’t allow non-plaintiff that had standing to sue to amend complaint by plaintiff that lacked standing.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110906552.pdf
• Obviousness-type double patenting invalidated patents that received patent term adjustments for delay in patent examination.
  • https://cafc.uscourts.gov/opinions-orders/22-1293.OPINION.8-28-2023_2181381.pdf
• Patent Trial and Appeal Board failed to give proper weight to non-obviousness factors in striking down patent on boat with front propellers.
  • http://cafc.uscourts.gov/opinions-orders/22-1765.OPINION.8-24-2023_2179988.pdf
• Antitrust makes the economy better.
  • https://www.promarket.org/2023/09/05/antitrust-enforcement-increases-economic-activity/
• Rule of reason applied to Sherman Act Section 1 claim against mushroom growers for efforts to keep downstream prices high.
  • https://www2.ca3.uscourts.gov/opinarch/222289p.pdf
• Fee award in antitrust class action should have given more weight to factors that favor a smaller award.
  • http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D08-30/C:22-2889:J:Brennan:aut:T:fnOp:N:3096719:S:0
• Patent might meet the “same field of endeavor” test for prior art.
  • http://cafc.uscourts.gov/opinions-orders/22-1138.OPINION.9-11-2023_2188240.pdf
• Board’s focus on expert’s typo in IPR challenge to patentability required do-over.
• http://cafc.uscourts.gov/opinions-orders/22-1350.OPINION.9-11-2023_2188207.pdf
• Hiding facts deserved dismissal as sanction.
• https://www.ca5.uscourts.gov/opinions/pub/22/22-10340-CV0.pdf
• Food-delivery service’s trademark might not confuse customers of meal-kit maker that uses a similar trademark.
• http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D09-12/C:22-1950:J:Lee:aut:T:fnOp:N:3101660:S:0
• Trademark owner’s pre-dispute work in forum state allowed exercise of personal jurisdiction over it.
• https://cdn.ca9.uscourts.gov/datastore/opinions/2023/09/12/21-16977.pdf
• Copyright law’s fair use doctrine allowed publication of technical standards due to their incorporation into law.
  • https://www.cadc.uscourts.gov/internet/opinions.nsf/5A2E1191A4B2D49785258A28004F2532/$file/22-7063-2016393.pdf

Welcome back to Commercial Roundup. This installment will catch you up for the last several weeks.

• “Comparison prior art” in design-patent case must involve the “article of manufacture” in the patent claim.
  • http://cafc.uscourts.gov/opinions-orders/21-2299.OPINION.9-15-2023_2190910.pdf
• Need a lift? Read this.
  • https://www.law360.com/pulse/articles/1717375/5-life-lessons-from-making-partner-as-a-solo-parent
• Antitrust Magazine just got better.
  • https://www.omm.com/our-firm/media-center/in-the-news/omelveny-antitrust-competition-lawyers-appointed-to-leadership-roles/
• FTC sues Amazon in its hometown for maintaining monopolies by unlawful means and unfair methods of competition.
  • https://lnkd.in/g_W4vC35
• Climate change case belonged back in state court.
  • https://ww3.ca2.uscourts.gov/decisions/isysquery/dcea81f9-a1e0-498e-9b6e-8203ecfc42e2/1/doc/21-1446_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/dcea81f9-a1e0-498e-9b6e-8203ecfc42e2/1/hilite/
• Mutual mistake in using policy holder’s trade name to identify policy holder warranted reformation to substitute its legal name.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202213738.pdf
• Pair of prior-art patents taught all elements of patent on method for putting dark images on dark backgrounds.
  • http://cafc.uscourts.gov/opinions-orders/22-1333.OPINION.10-6-2023_2202204.pdf
• Expert could opine on whether data-transmission patent’s mention of software protocols disclosed enough “structure” to meet means-plus-function test for patentability.
  • http://cafc.uscourts.gov/opinions-orders/22-1493.OPINION.10-6-2023_2202155.pdf
• Obviousness dooms patent on device for focusing ion stream.
  • http://cafc.uscourts.gov/opinions-orders/21-1985.OPINION.9-21-2023_2193832.pdf
• Franchisor that sued to enjoin ex-franchisee to comply with non-compete couldn’t switch to arbitration.
  • http://media.ca8.uscourts.gov/opndir/23/10/222835P.pdf
• Site that invited hateful posts contributorily infringed one target’s copyright in book he wrote about his life challenges.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110936535.pdf
• Infringement damages model relied on data that overstated imports of devices with infringing charger.
  • http://cafc.uscourts.gov/opinions-orders/22-1873.OPINION.10-16-2023_2206020.pdf
• Tests for review of prior art in IPRs get much discussion.
  • http://media.ca8.uscourts.gov/opndir/23/10/222835P.pdf
• Statement that “our data are all consistent with” need for higher dose of Alzheimer’s drug met falsity, materiality, and scienter elements of securities fraud claim.
  • http://media.ca1.uscourts.gov/pdf.opinions/22-1773P-01A.pdf
• Payment to hospital for past health care benefits couldn’t support False Claims Act claim.
  • https://ww3.ca2.uscourts.gov/decisions/isysquery/38bf0d03-2f81-4c6b-a403-546ddae3d05c/7/doc/21-1534_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/38bf0d03-2f81-4c6b-a403-546ddae3d05c/7/hilite/
• “Confusing” letters from debt collector might, but might not, cause class members concrete injury that would give them Article III standing.
  • https://www2.ca3.uscourts.gov/opinarch/222483p.pdf
• Bribery scheme to promote shoe brand didn’t injure hoops player who, through no fault of his own, lost chance to play for college team.
  • https://www.ca4.uscourts.gov/opinions/211764.P.pdf
• SEC’s okay of stock exchange rule calling for firms that list their stock on it to disclose “diversity” of its board members did not violate Securities Exchange Act of 1934 or Administrative Procedure Act or involve “state action” that might impinge on constitutional rights.
  • https://www.ca5.uscourts.gov/opinions/pub/21/21-60626-CV0.pdf
• Louisiana Oilfield Anti-Indemnity Act might apply to purchase orders for electrical work at salt mine on theory that “drill and blast” technique of mining salt qualified as “drilling for minerals”.
  • https://www.ca5.uscourts.gov/opinions/pub/23/23-30076-CV0.pdf
• Class Action Fairness Act keeps class action on behalf of Illinois cities and towns against cable company in federal court due to “complete diversity” between class members (citizens of Illinois) and the cable company (citizen of Delaware and New York).
  • http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D10-13/C:22-2905:J:Easterbrook:aut:T:fnOp:N:3116695:S:0
• Stock buyer who sued for securities fraud could not appeal order granting motion to dismiss complaint of pension fund the court named as lead plaintiff under PSLRA.
  • http://media.ca7.uscourts.gov/cgi-bin/OpinionsWeb/processWebInputExternal.pl?Submit=Display&Path=Y2023/D10-13/C:22-2905:J:Easterbrook:aut:T:fnOp:N:3116695:S:0
• Per-claim limit under insurance policy applied to lender’s claims against auditor for series of faulty audits of borrower’s fraudulent financial statements.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110936386.pdf
• Anti-Injunction Act barred federal court from enjoining state court from approving “collusive” class-action settlement.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110937307.pdf
• Lanham Act doesn’t allow Trademark Trial and Appeal Board to cancel trademark registration due to fraud in application to make a trademark “incontestable”.
  • http://cafc.uscourts.gov/opinions-orders/22-1212.OPINION.10-18-2023_2207653.pdf

Welcome to the November 15, 2023 edition of Commercial Roundup. It will catch you up on the latest appellate decisions by federal appellate courts and the highest courts in Delaware, New York, and Texas on antitrust, arbitration, class actions, intellectual property, securities, and other important issues in complex business and commercial disputes.

• Expert witness who consulted with plaintiff but didn’t sign an NDA could testify as expert for defendant.
  • http://media.ca8.uscourts.gov/opndir/23/10/231004P.pdf
• Facebook’s public statements about users’ control of their data and risks of its misuse supported fraud claims under Securities Exchange Act of 1934.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/10/18/22-15077.pdf
• Monopolist’s threats to punish buyers who bought from upstart rival supported monopolization claim under Section 2 of Sherman Act but not tying claim under Section 1.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110940810.pdf
• $2.67 billion settlement of antitrust class action survives all objector attacks.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202213051.pdf
• Error in construing claim term “the sample stream” as not “plural-allowing” doomed Patent Trial and Appeal Board’s rejection of obviousness challenges in IPR.
  • http://cafc.uscourts.gov/opinions-orders/22-1761.OPINION.10-19-2023_2208330.pdf
• Patent Trial and Appeal Board needn’t address unclear arguments about patent’s obviousness in light of prior art.
  • http://cafc.uscourts.gov/opinions-orders/22-1203.OPINION.10-25-2023_2211191.pdf
• Denial of ex parte request for seizure order under Defend Trade Secrets Act didn’t qualify for appeal.
  • https://www2.ca3.uscourts.gov/opinarch/222426p.pdf
• Employee had right to sell employer his stake in new company employer never formed.
  • https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110943069.pdf
• Google paid Apple and others $26.3 billion to help Google keep its search engine monopoly. Will it win antitrust enforcers’ case against it anyway?
  • https://www.thecontingency.com/2023/10/what-26-3-billion-bought-google-and-the-cost-of-secrecy/
• Jury finds conspiracy to inflate broker fees home sellers paid in Columbia, Kansas City, Springfield, and St. Louis from 2015-22 and awards $1,785,310,872 in overcharge damages.
  • https://www.linkedin.com/posts/barry-barnett-8313014_burnett-v-natl-assn-of-realtors-verdict-activity-7125211587996442625-XMFc?utm_source=share&utm_medium=member_desktop
• Video game might have infringed copyright in dance steps.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/01/22-55890.pdf
• Patent didn’t limit “guiding mechanism” to a “manual” one.
  • http://cafc.uscourts.gov/opinions-orders/22-1439.OPINION.11-1-2023_2215474.pdf
• Estimate of damages due to extra charges for drilling out frac plugs could rely on extrapolation of service provider’s undue delay.
  • https://www.ca5.uscourts.gov/opinions/pub/22/22-10918-CV0.pdf
• Clear error in failure to transfer venue of case against TikTok required relief by mandamus.
  • https://www.ca5.uscourts.gov/opinions/pub/23/23-50575-CV0.pdf
• Presence on purchase widget of hyperlink to “payment terms” put buyer on “inquiry notice” of arbitration clause she never saw.
  • https://ww3.ca2.uscourts.gov/decisions/isysquery/ef937f7b-f3ce-4430-ae82-c48d276e0379/1/doc/22-557_opn.pdf#xml=https://ww3.ca2.uscourts.gov/decisions/isysquery/ef937f7b-f3ce-4430-ae82-c48d276e0379/1/hilite/
• Cash award to class counsel should reflect cash value of benefits class members in fact receive. Clauses that might hinder class-member complaints need a hard look.
  • https://www2.ca3.uscourts.gov/opinarch/221950p.pdf
• App makers failed to define a plausible product market that Apple’s App Store might have monopolized.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/03/22-15166.pdf
• Willful failure to comply with Fair Credit Reporting Act triggers statutory damages without proof of harm to claimants.
  • https://media.ca11.uscourts.gov/opinions/pub/files/202211187.pdf
• IPR petitioner’s claims it would likely develop a product that infringes IPR respondent’s patent and that respondent’s patent would limit petitioner’s pending patent application lacked detail necessary to show concrete injury and therefore standing to sue.
  • http://cafc.uscourts.gov/opinions-orders/22-1706.OPINION.11-7-2023_2218653.pdf
• Dispute over whether “a pH of 13 or higher” allowed a pH range of 12.5 to 13.4 required review of evidence outside patent prosecution file.
  • http://cafc.uscourts.gov/opinions-orders/22-1889.OPINION.11-6-2023_2217732.pdf
• Suing buyer of product for patent infringement after losing infringement case against product’s seller supported award of fees against patent holder due to “exceptional” nature of holder’s bad conduct.
  • http://cafc.uscourts.gov/opinions-orders/21-1858.OPINION.11-3-2023_2216942.pdf
• Public company board’s okays of stock, warrant, and debt deals exempted director who benefited from short-swing profits claim under Securities Exchange Act of 1934.
  • https://cdn.ca9.uscourts.gov/datastore/opinions/2023/11/13/22-16632.pdf
• Class Action Fairness Act barred removal of action for damages from merger that violated share owners’ contract rights and insiders’ fiduciary duties under CAFA’s “securities related exception” to “minimal diversity” jurisdiction.
  • https://ww3.ca2.uscourts.gov/decisions/isysquery/47239084-b541-4cd3-a339-db3013be49a1/1/doc/23-1262_opn.pdf

Welcome to The Contingency‘s Commercial Roundup for February 21. We have a ton of cases to catch up on, so let’s get right to it.

• “Single” in patent claim preamble limited apparatus to finding just one biomolecule.
  • 22-1410.OPINION.1-9-2024_2250463.pdf (uscourts.gov)
• Auto products buyer didn’t waive claim for seller’s breach by buying more from it.
  • 221617.P.pdf (uscourts.gov)
• Bank that administered famous artist’s trust didn’t allege a viable RICO claim against trust beneficiaries for their efforts to increase payments from trust.
  • 223331P.pdf (uscourts.gov)
• Copyright Act pre-empted state law claims against Google for showing parts of plaintiffs’ websites in Search App on Android phones.
  • 22-15899.pdf (uscourts.gov)
• Lanham Act allowed windshield repair firm to base false advertising claim on windshield maker’s untrue statements to insurers and car owners about repairability of longer windshield cracks.
  • https://lnkd.in/gwWUmY9q
• Bond issuer’s addition of “fragments” to standard-form bond-offering documents didn’t support copyright infringement claim against bond-placement agent.
  • processWebInputExternal.pl (uscourts.gov)
• Use of “Punchbowl” to signal source of product barred free-speech defense against trademark infringement claim under Supreme Court’s 2023 Jack Daniel’s ruling.
  • 21-55881.pdf (uscourts.gov)
• U.S. District Judge William G. Young concludes $3.8 billion merger of Spirit into JetBlue “would substantially lessen competition”.
  • https://www.linkedin.com/posts/barry-barnett-8313014_judge-youngs-113-page-findings-and-conclusions-activity-7153382127324020736-rvgX?utm_source=share&utm_medium=member_desktop
• Promise that patent “shall be” plaintiff’s property might not have transferred it, but “hereby sell and assign” in later contract did.
  • 22-1386.OPINION.1-19-2024_2255688.pdf (uscourts.gov)
• Charter change that removed non-voting shareholder class’s right to sue officers for breaching duty of care didn’t require class’s approval.
  • Download.aspx (delaware.gov)
• New York law trumped FAA on whether party could appeal refusal to enjoin arbitration.
  • 23-286_opn.pdf (uscourts.gov)
• Clause giving courts “exclusive jurisdiction” in later contract likely displaced arbitration clause in earlier one.
  • 23-286_opn.pdf (uscourts.gov)
• Bankruptcy Code allows estates to sell claims to recover preferences.
  • 22-20536-CV0.pdf (uscourts.gov)
• Son’s baseless take-over of family business justified his firing after losing control.
  • 24a0012p-06.pdf (uscourts.gov)
• Trucking company that made one-way deliveries to tire maker but fraudulently charged for round trips owed it benefit of the bargain damages.
  • 231379P.pdf (uscourts.gov)
• “EVERYBODY VS RACISM” didn’t identify source of goods and therefore didn’t qualify for trademark protection.
  • 22-1961.OPINION.1-22-2024_2256749.pdf (uscourts.gov)
• Penalties for ex-partners’ breach of promises not to compete or solicit its clients didn’t violate Delaware public policy.
  • Download.aspx (delaware.gov)
• Buyers of U.S. Treasury bills, notes, and bonds didn’t allege plausible basis for bank cartel that rigged auctions or quashed nascent market for direct trades. hashtag#Twombly.
  • 22-943_opn.pdf (uscourts.gov)
• Trust Indenture Act didn’t apply to private sale of notes and therefore didn’t forbid no-action clause.
  • 22-943_opn.pdf (uscourts.gov)
• Attack on statute giving state power to unitize oil and gas interests in horizontal structures didn’t meet standard for Pullman abstention and raised threshold question of standing.
  • 222271.P.pdf (uscourts.gov)
• Jury’s punitive damages award for retaliation against employee who made Title VII claim lacked support.
  • 23-20035-CV0.pdf (uscourts.gov)
• Statute allows insurers to delay paying policy holders’ claims, run up their costs, and stiff them on attorney’s fees.
  • 230534.pdf (txcourts.gov)
• Derivative plaintiffs waived right to object to live testimony by sole member of special litigation committee at hearing on motion for summary judgment.
  • Download.aspx (delaware.gov)
• IT contract bidder that Veterans Administration deemed “acceptable” and barely missed VA’s list of finalists had standing to claim the VA should have ranked other bidders below it.
  • 22-1759.OPINION.1-29-2024_2260944.pdf (uscourts.gov)
• U.S. Judicial Panel on Multidistrict Litigation rejects disruption and waste as grounds for keeping states’ antitrust actions in Generic Pharmaceuticals MDL.
  • https://www.linkedin.com/posts/barry-barnett-8313014_us-judicial-panel-on-multidistrict-litigation-activity-7160645037263904770–UaU?utm_source=share&utm_medium=member_desktop
• D.C. Circuit issues 3-0 immunity ruling in Trump case.
  • Trump-v.-U.S.-2-5-24.pdf (thecontingency.com)
• Limitations didn’t bar GM’s CERCLA claims for clean-up costs it alleges others’ polluting activities caused near an old GM plant.
  • 22-1589_opn.pdf (uscourts.gov)
• Indemnification clause didn’t cover claims between parties to the contract.
  • 010110995568.pdf (uscourts.gov)
• Subsidiary’s stipulation dismissing case with prejudice didn’t count as res judicata for its parent.
  • 24a0025p-06.pdf (uscourts.gov)
• Copyright limits on customers’ use of operating manuals didn’t prevent them from serving as prior art.
  • https://lnkd.in/gPnv9w3N
• Back-to-back sales of bonds in U.S. through brokers could subject Mexican banks to jurisdiction in class action for fixing bonds’ prices.
  • 22-2039_opn.pdf (uscourts.gov)
• Federal court that had jurisdiction to stay lawsuit in favor of arbitration lacked jurisdiction to confirm or vacate award.
  • 221253.P.pdf (uscourts.gov)
• Expert’s opinion that diabetes drug caused heart problems lacked reliable support.
  • 24a0028p-06.pdf (uscourts.gov)
• Law of the case and issue preclusion barred toxic tort claims of around 150 plaintiffs who joined a single complaint but not the claims of 20 or so who didn’t.
  • processWebInputExternal.pl (uscourts.gov)
• Evidence of strong odor that caused headaches precluded summary judgment on claims against pipeline owner for leaking of diesel and gasoline.
  • 010110999696.pdf (uscourts.gov)
• USPTO’s rule calling for any law firm that files trademark applications to provide a U.S. “domicile” address didn’t violate APA.
  • 22-1843.OPINION.2-13-2024_2269139.pdf (uscourts.gov)

Commercial Roundup has some catching up to do this week. See the jumbo installment below.

• Multiple terms in speech-recognition patent deserved broader construction.
  • 22-1939.OPINION.2-16-2024_2271458.pdf (uscourts.gov)
• Allowing any discovery on arbitrability amounts to denial of stay and authorizes immediate appeal.
  • 23-30182-CV0.pdf (uscourts.gov)
• Internet service provider’s failure to boot subscribers it knew often pirated music online made it a contributory copyright infringer.
  • 211168.P.pdf (uscourts.gov)
• FTC sues in Oregon to block $24.6 billion “supermarket mega merger” between Kroger and Albertsons, noting loss of competition on price and quality and harm to workers.
  • https://lnkd.in/g7kiYmUj
• Racing board’s ruling on horse naming against didn’t preclude owner’s first amendment challenge.
  • 23-55735.pdf (uscourts.gov)
• Failure to object to mention of patent applications’ filing dates before jury dooms bid for new trial.
  • 22-1391.OPINION.2-26-2024_2276014.pdf (uscourts.gov)
• Settling with a defendant for a big amount it can’t/won’t/doesn’t pay reduces non-settling defendants’ liability for the full amount.
  • 220168.pdf (txcourts.gov)
• All plaintiffs must incur their “principal injuries” in the forum state for CAFA’s “local controversy” exception to federal jurisdiction to apply.
  • 23-40591-CV0.pdf (uscourts.gov)
• Certificates for car dealer loyalty programs qualified for copyright law protection.
  • 24a0039p-06.pdf (uscourts.gov)
• Death of witness before parties could complete his deposition barred use of his testimony.
  • 24b0001p-06.pdf (uscourts.gov)
• Briefs can’t incorporate other briefs if incorporation results in brief that exceeds word count limit.
  • 22-1093.ORDER.2-16-2024_2271495.pdf (uscourts.gov)
• Judge’s email to lawyers didn’t count as rendition of judgment.
  • 220242.pdf (txcourts.gov)
• Insurance didn’t cover losses from closure of restaurants due to COVID-19 because virus didn’t materially alter property or deprive owner of its possession.
  • 7opn24-Decision.pdf (nycourts.gov)
• Law of Venezuela governed validity of notes its national oil company issued.
  • 7opn24-Decision.pdf (nycourts.gov)
• Patent on method for serving online ads recited abstract idea and lacked enough inventiveness to pass muster under Alice’s Section 101 test for patent eligibility.
  • 22-1756.OPINION.3-5-2024_2280474.pdf (uscourts.gov)
• Prior art made claims in patent on strep vaccine obvious.
  • 19-1871.OPINION.3-5-2024_2280462.pdf (uscourts.gov)
• Claims in battery patent didn’t contain contradiction and therefore didn’t fail for indefiniteness.
  • 23-1194.OPINION.3-6-2024_2281183.pdf (uscourts.gov)
• Ruling on all “issues” but not all “claims” made final judgment non-final.
  • 202214136.pdf (uscourts.gov)
• Antitrust Division would lose automatic funding boost from increase in merger filings.
  • Biden Is Hyping Antitrust Policy. Congress Is Cutting It. (yahoo.com)
• How do tech giants stay on top? By coopting people and things that would disrupt their dominance.
  • Coopting Disruption by Mark A. Lemley, Matthew Wansley :: SSRN
• White House calls for $823 million to antitrust enforcers–more than 50 percent boost over 2021 levels.
  • FACT SHEET: The President’s Budget Lowers Costs for the American People | The White House
• Drug makers didn’t show grounds for halting release of in-house lawyers’ writings about sham patent lawsuit under crime/fraud
  • 232412p.pdf (uscourts.gov)
• Airline could enforce arbitration clause in booking site’s terms and conditions.
  • 21-16083.pdf (uscourts.gov)
• Patent Act bars use of oral testimony in proceeding to oppose registration of trademark and therefore precludes subpoena for an oral deposition.
  • 221871.P.pdf (uscourts.gov)
• FAA Section 1 exempted worker whose job made him a link in movement of goods from abroad to places in U.S. from arbitration.
  • 23-55147.pdf (uscourts.gov)
• New York tour bus firm pleaded enough basis for its claim that bigger firms arranged to shut it out of the hop-on, hop-off market.
  • 27mem24-Decision.pdf (nycourts.gov)
• Watch maker’s use of “red gold” to describe time pieces’ color made “fair use” of “RED GOLD” trademark.
  • 22-366_complete_opn_post.pdf (uscourts.gov)
• Exemption in federal Arbitration Act for “class of workers” didn’t apply to LLC.
  • 24a0058p-06.pdf (uscourts.gov)
• Former director of company that went belly up failed to show he couldn’t afford a defense without D&O insurance money.
  • 23-690_opn.pdf (uscourts.gov)
• The Complaint in United States v. Apple Inc. (D.N.J.).
  • https://www.linkedin.com/posts/barry-barnett-8313014_us-v-apple-inc-complaint-3-21-24-activity-7176705877624717312-U07k?utm_source=share&utm_medium=member_desktop
• Matt Stoller explains U.S. v. Apple Inc.
  • Why the Apple Antitrust Suit Matters – BIG by Matt Stoller (thebignewsletter.com)
• “New use” that releases cancer-causing agents doesn’t include use the EPA just learned about.
  • 23-60620-CV0.pdf (uscourts.gov)
• Laches barred Rolex’s claim for profits of firm that fixed Rolex watches with non-Rolex parts.
  • 22-10866-CV1.pdf (uscourts.gov)
• Refusal to order specific performance of “best efforts” clause didn’t justify interlocutory appeal.
  • Download.aspx (delaware.gov)
• Context made report of “cure” for COVID-19 not false or misleading.
  • 22-55641.pdf (uscourts.gov)
• Safe harbor kept import of heart valve devices from providing basis for patent infringement claim.
  • 22-1877.OPINION.3-25-2024_2290338.pdf (uscourts.gov)
• Non-parody use of video failed Warhol test for copyright law’s fair-use doctrine.
  • 010111022699.pdf (uscourts.gov)
• Prior art that disclosed all elements of invention without combining them didn’t render the invention invalid because obvious without proof that a person of ordinary skill in the art would have felt a reason to combine the elements.
  • 22-1998.OPINION.3-27-2024_2292085.pdf (uscourts.gov)
• Lack of intent to use trademark in commerce provides basis for zapping registration.
  • 22-16190.pdf (uscourts.gov)
• Error in reading limitations into patent claims caused error in analysis of defense that prior art made claims invalid because obvious.
  • 22-1258.OPINION.4-1-2024_2293991.pdf (uscourts.gov)
• Details about firm’s scramble to hang onto stock exchange listing supported loss causation and falsity elements of securities fraud claims.
  • 22-55760.pdf (uscourts.gov)
• Antitrust Division’s formal statement that it “closed” a probe didn’t bar it from starting a new one or reopening the old one.
  • 23-5065-2048352.pdf (uscourts.gov)
• Party that claimed cost of arbitrating arbitrability put any remedy for harmful conduct out of reach failed to present proof that action in court would cost less.
  • 220830pc.pdf (txcourts.gov)
• For want of an expert report, a (copyright infringement) case was lost.
  • 24a0075p-06.pdf (uscourts.gov)