May 22 2017

SCOTUS Ends Forum Shopping in Patent Cases

Well the docket of the Eastern Texas Federal District Court is going to get much lighter in the coming months and years. In a unanimous 8-0 decision, in a case titled TC Heartland LLC v. Kraft Foods Group Brands LLC, the Supreme Court held that a person or entity claiming patent infringement must bring the suit in the State where the defendant company actually “resides.” In 1957, the Supreme Court decided, in Fourco Glass Co. v. Transmirra Products Corp., that “resides” meant the State of the company’s incorporation. But since then, and beginning specifically in 1990, the Federal Circuit, the mid-level appeals court that hears all patent-based appeals regardless of where they are filed, has ruled that a patent defendant can be sued anywhere it has “sales.” So for national and global brands that means practically any district in the country. This runs counter to the patent venue statute, 28 U.S.C. § 1400(b), which provides that “[a]ny civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

Troll home no more

Patent plaintiff’s lawyer’s don’t choose any district; more than any other, they choose East Texas. Normally, cases in the rural East Texas court take less time to get to trial than in other districts. But East Texas has other qualities that have made it perennially attractive to patent-plaintiffs. Defendants are very unlikely to win a summary judgment motion, as judges in the district are much more likely to give the case to a jury. That dramatically raises the cost, and risk, for defendants which in turn raises the likelihood of a settlement. Given a choice between a $200,000 settlement and a $2.8 million trial – which is the mean cost to a defendant of litigating patent cases in Texas involving between $1 million and $25 million in damages, according the American Intellectual Property Law Association – most defendants choose to fold early and cut their losses. East Texas judges also move trials quickly. Trials are often over within a week which hurts larger defendants who generally like to take their time and mount long complicated defenses. In addition, East Texas juries seem more inclined to large verdicts and love a “little guy versus Goliath” story. Patent plaintiffs in East Texas win 88% of the time compared to 68% in all other districts.

That has lead to a second East Texas phenomenon: patent-holding companies that “reside” in East Texas. Essentially shell companies, they do little more than purchase patents with the purpose of squeezing quick settlements out of major technology companies whose technologies may overlap with the patented feature. Many of those companies are “headquartered” in small offices in the building next door to the federal courthouse in Marshall, Texas; or they’re in the Energy Center in nearby Tyler, Texas. So now, “David” can be portrayed as a local East Texas company fighting with Global Goliath. How you like them odds, cowboys?

Patent trials in East Texas have become commonplace as the thousands of cases filed make their way through the judicial system. According to Wikipedia, in 2016, 1,647 cases (or 36.4%) of the nation’s patent cases were filed in the Eastern Texas District, which more than the total number of lawsuits filed in the District of Delaware (455 cases or 10.1%), Central District of California (290 cases or 6.4%), Northern District of Illinois (247 cases or 5.5%) and Northern District of California (188 cases or 4.2%) combined. That’s ridiculous especially when you consider how many companies are incorporated in Delaware and California.

Justice Thomas, writing for the Court, ruled that the Federal Circuit was wrong in using the place where sales occurred rather than the place of incorporation as the proper venue. This decision puts an end to the forum-shopping and brings patent litigation back to where the statutes put venue – where the defendant company is incorporated. It will be interesting to see what effect this has on patent trolls and on the East Texas docket. Its day in the sun as the haven for patent plaintiffs has come to an end. What will they do with all the free time I have to wonder?

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May 17 2017

Tribeca Film Institute Brings Film Class to NY State Prison

I was asked to be a speaker yesterday at the Tribeca Film Institute’s Community Screening Program at Otisville Correctional Institute. The program brings a series of films into the NY State medium-security facility in Orange County, NY and then has a group of incarcerated facilitators lead a discussion among the participants about the film. Its stated purpose is to bring the power and impact of film to all reaches of the community at large including the incarcerated. But really the program is engaging in restorative justice by bringing in the outside world into the confines of the stark facility and by giving the men within its walls an opportunity to have a voice; to learn from art; to gain perspective; and yes to help themselves heal and help them heal others whether they get paroled or spend the rest of their lives inside. About 75 men came to see the film and participate in the event.

The film being screened was a 2013 HBO documentary, “Gideon’s Army”, that follows three young public defenders in Clayton County, Georgia as they handle massive caseloads and their own personal and financial struggles. It also focuses on the Southern Public Defender Training Center which not only helps train these young men and women, but also tries to shed light on the plight of the poor in this country who are accused of crimes. The film brings attention to how the indigent are forced into plea bargains that leave them marked for life as felons and criminals, even when they have a viable defense and even when they are in fact innocent of the crimes with which they are charged.

I want to focus less on the film (which was excellent and disturbing) and more on the impact it had on the men watching it with me last night. The session began at 5pm and ended at 9pm which is itself a big deal for the participants since night in a prison usually means you are back in lockdown in your cell. It opened with a discussion about the men thought about when they hear the word “lawyer.” Their one-word answers were written down on a large pad in the front of the room: “Weasel” – “Shyster” – “Crook” – “Jaded” – “Snake” – “Thief” – were some of the first words put down on paper then a few nicer ones were added “Educated” – “Compassionate” – “Dedicated” – which were greeted by some boos and laughs. The film was then played and for around two hours, we saw these young folks fight as hard as they could under ridiculously difficult circumstances for their clients. They each managed a caseload of around 150 cases, including serious felonies even though they were just one or two years out of law school. So after the movie, the facilitators asked the men what they thought of lawyers having seen the film. Most agreed that they were overly judgmental and reliant on stereotypes in their first list and added a lot more complimentary words to their list of lawyer adjectives. I was then asked to come up front to address the group and engage in them in a Q and A.

I was able to connect with these men not just because I have been a practicing lawyer for over 30 years but because I had been to Otisville fairly regularly during my ten years working on overturning David McCallum’s wrongful conviction and lots of them were aware of that. I broke the ice by telling them not to worry because I had been called a lot worse than the slurs they had put up on the pad, and that was just by judges. We then talked about the attorney-client relationship and why some of them felt that way about their own lawyers – most of which were court-appointed. We talked about the need for an open dialogue between attorney and client. We came to an agreement that the most important thing was the need for regular, meaningful communication. A lawyer has an obligation to provide not just zealous representation but to also hear the client out; help the client understand what are the obstacles to a favorable result; manage a client’s expectations; and make sure that the client’s concerns are addressed properly. Several of the viewers said the film and the discussion made them come to an understanding that they didn’t help their cause by their overly negative attitude towards their lawyer and by refusing to view their case objectively. Their views (and the film) made me more aware of the importance of what it means to “represent” someone in court. You stand in their place; you are their voice; you are in fact the embodiment of their case – the good the bad and the ugly. If you don’t have an understanding of their perspective; if you don’t have empathy for their situation; if you don’t have an appreciation for the many obstacles the justice system puts in their way; and if you cannot communicate effectively with them so that they can see what their case represents to the system, then you will fail miserably as their lawyer.

I want to thank Virgilio Bravo of the Tribeca Film Institute for the opportunity to attend this event and participate in the Community Screening Program. Thanks also to my friend Baz Dresinger of John Jay College and its Prison to College Pipeline Program for recommending me to Virgilio for this event. You can learn more about the Institute at this link .

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May 12 2017

Dept of Justice Uses Racist Decision In Support of Trump Travel Ban

The Dept of Justice, headed of course by Attorney General Jeff Sessions, is tasked with defendant President Trump’s executive order that prohibited entry into the United States from several majority-Muslim countries. This coming Monday, the Fourth Circuit will hear argument on the second version of the Trump travel ban, which two lower courts have already ruled should not be enforced. The specific case before the Fourth Circuit, International Refugee Assistance Project v. Trump, concerns an order by Maryland Federal District Judge Theodore Chuang. That order halted a key provision of the most recent version of Trump’s Muslim ban. This will be the first appeals court to consider the revamped ban.

One likely issue to come up in oral argument, however, will be difficult for the DOJ to address: Why it chose to rely on the case of Palmer v. Thompson in its brief. Constitutional scholars will know Palmer as one of a few of the Supreme Court’s decisions from our nation’s past that have never been overturned but are highly disfavored for their racist holdings. The Dred Scott decision, (which held that slaves were property and therefore had no standing to sue in Federal Court even after having been brought to a free state), and Korematsu v. United States which upheld the internment of Japanese people during World War II are the first to come to mind. Palmeris similarly discredited because it upheld Jackson, Mississippi’s decision to close 4 out 5 public pools after it was forced to integrate them and allowed the lessee of the fifth pool (the YMCA) to operate the last remaining pool as a “whites-only” facility. None of these ugly marks on US jurisprudence have been overturned but everyone knows that they are seriously looked down upon, reviled, and never, ever to be cited.

Well, everyone, that is, except the nine government lawyers who signed off on this travel ban brief. A central issue in the case is whether Trump’s many, repeated statements that he intends to ban Muslims from entering the United States show that he acted with “an unconstitutional motivation” when he signing the order. The Trump administration’s brief cites Palmer v.Thompson for the proposition that “searching for governmental purpose outside the operative terms of governmental action and official pronouncements is fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’” The Court in Palmer held (5-4) that the Court could not try and determine whether the Jackson City Council was being honest when they said their decision was not based on race but was based on “economics” and “safety.” The majority said they were obligated to accept the neutral language of the law on its face. Of course Justices Brennan and Marshall filed strong dissents but Palmer became the law of the land at least for a little while. The Court stepped away from Palmera few years after it was decided. As Justice Byron White wrote for the Court in Washington v. Davis, “to the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases. . . are to the contrary.” Furthermore, many other federal cases have since held that Palmer is not favored and have refused to apply it when it was cited by private litigants.

The Palmer Court was OK with this and so apparently is the US Department of Justice

Palmer is also a bad case to cite just from a litigation standpoint. Its holding was based on the difficulty courts could face trying to determine the motivation of any entire legislative body. But the travel ban is an executive order so its only the President’s motivation that matters. Proponents of the ban were of course quick to cite the numerous instances in which Trump professed to ban Muslims once in office to prove his motivation.

In any event, the decision to rely on a discredited case that enabled segregated swimming pools in Mississippi in 1970 is a bizarre choice and only serves to show that this Administration is not only uncaring about a racist perception but also that it does not operate like a well-oiled machine. There is no reason to cite this case as its main holding has been reversed and as it upheld racial segregation. As J.P. Schnapper-Casteras, who first pointed out the troubling citation at Take Care Blog, notes, the Trump administration’s decision to cite a largely discarded segregation decision “is somewhat evocative of a recent brief by the state of Kansas favorably citing Dred Scott — a move that quickly went viral, was widely condemned, and prompted a formal withdrawal and apology by the Kansas Attorney General.”

I doubt Jefferson Beauregard Sessions III will ever apologize for anything he does and as for President Trump apologizing, you must be joking. I only hope that the Fourth Circuit takes the government’s lawyers to the woodshed for resurrecting Palmer and relying upon it for one of the main points of its brief.

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Apr 18 2017

Hush Your Pretty Little Mouth: Gender and Interruption at the Supreme Court

In Adam Liptak’s NY times column today, he reports about a Northwestern University Law School study that examined the esoteric issue of interruptions in Supreme Court arguments.The study looked at 7,239 interruptions of justices and lawyers by other justices and lawyers occurring between 2004 through 2015. Now, that’s a lot but interruptions are part of oral argument at teh Supreme Court with lots of big egos in the room arguing complex and important issues. Here are some of the study’s findings:

1. Only 4% of those interruptions were by women.
2. Conservative justices interrupt liberal justices at a significantly higher rate
3. 32% of the interruptions were of women – a strikingly high number when considering that the Court has only had three women since the addition of Elena Kagan in 2010. If you take out the interruptions between Stephen Breyer and Antonin Scalia, who notoriously battled verbally against each other during oral arguments – the gender disparity jumps even higher.
4. Male lawyers were even more likely to interrupt female justices – a real no-no at SCOTUS where the argument guide strictly admonishes lawyers: “Never interrupt a justice who is addressing you. If you are speaking and a justice interrupts you, cease talking immediately and listen.”
5. The higher rate of interruption of women is further significant because the study also found that female justices speak less often and use less words a than male counterparts.
6. None of the interruptions were by female lawyers – the only women who interrupted during this period were the female justices.
7. Since all of the current females on the Court are liberal, the study wanted to distinguish between interruptions by ideology and gender, so it took a detour and went back to 1990 to see how conservative female jurist Sandra Day O’Connor fared during her tenure. Sure enough, she was interrupted nearly three times more often that the eight male justices. So gender trumped ( no pun intended) ideology.

By Ipankonin – Vectorized fromSVG elements from, Public Domain,

So what does it mean and why does it matter? First of all, it means Neil Gorsuch (conservative and male) should have a lot of time to speak his mind. Second of all, it reflects that gender dynamics, common in offices and other work spaces, exists even at an institution like the Supreme Court – something to ponder during Women’s Equality Month. Finally, as Professor Tonja Jacobi, the Northwestern law professor who, along with law student Dylan Schweers, conducted the study notes “Interruptions are generally considered an aspect of dominance.” This tone and aura of dominance during oral argument can impact a lawyer’s presentation; a justice’s hearing of the case; and can subtly stifle further inquiry and conversation.

The study is to be published in the upcoming Virginia Law Review. The full article can be found HERE

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