Thursday, December 4, 2014

BigLaw Missed Appeal Deadline: Now Trying To Dodge A Bullet

Here is a very interesting case.  A small company named Two-Way Media sued AT&T for patent infringement. Lots of stuff happened, and then Two-Way won a jury verdict plus enhancements totaling $40 Million against AT&T. So unless AT&T can get that decision reversed on appellate review, AT&T has to pay Two-Way Media $40 Million.

Unless you are a lawyer, you may not know that there is a pretty hard and fast deadline for filing an appeal of a trial court's decision.  Under the Federal rules, a losing party must file their "notice of appeal" within 30 days of lots of things, but for the purpose of this discussion, it must have been filed within 30 days of the trial Judge submitting his decision on both parties' several post-trial motions (motions both sides file to try and change what happened at trial).

In this case, the trial judge entered his decision on both parties' post-trial motions in November. But the notice of the decision that was emailed to the lawyers apparently wasn't a model of clarity. None of AT&T's lawyers (18 of them) actually looked at the decision. So none of those lawyers made a note of when AT&T was required to file its notice of appeal.

Oops. You must see where this is going.

A couple of months goes by, and someone on AT&T's side finally notices that the judge's decision was entered months earlier, and no one had filed a notice of appeal.

So AT&T's lawyers asked for permission to file the notice of appeal late, saying that the email from the court was misleading so it wasn't their fault that none of AT&T's 18 lawyers actually read the order attached to the email. The trial judge had none of it, and refused to let AT&T file the notice late.

AT&T then appealed the trial judge's refusal to grant AT&T more time to file a notice of appeal. So AT&T is asking the Federal Circuit (the court that reviews the trial judge's decision) to essentially force the trial judge to allow AT&T extra time to file its notice of appeal.

In other words: AT&T's lawyers blew the deadline for filing a notice of appeal. When they realized what happened, they asked the trial judge to give them more time to file the notice of appeal. The trial judge said no, so AT&T is asking the higher court force the trial judge to give AT&T more time. AT&T's justification for more time is that the email notification of the trial judge's decision was unclear about what the decision covered, and since the email was unclear none of AT&T's 18 lawyers read the actual decision.

I can't wait to see how this turns out. There was an oral argument yesterday at the Federal Circuit where lawyers for both sides answered some questions that the appellate judges had.

The most interesting line of questioning was right out the gate where one of the appellate judges asked AT&T's lawyers if they had billed AT&T any time for reading the trial judge's decision even though they now claim none of them did. AT&T's lawyer admitted that there were several time entries (of between six minutes and fifteen minutes) for reviewing something from the trial judge. AT&T's lawyer tried to argue that it was just for reading the email itself, not for the underlying decision.

Really?  Fifteen minutes to read an email which you say is so unimportant that you didn't even bother to read the attachment? Really?

It's statements like that which bring to mind the "churn baby churn" email fiasco that Mr. Victor had to endure. Law firms churning bills while not doing what they say they are doing. It's no wonder in house counsel are trying so hard to get their outside counsel's bills down.

I don't know exactly what to think about this situation. I'm very anxious to see if the Federal Circuit let's the big firm skirt by after blowing one of the most important deadlines in all of civil litigation. I also wonder if they would have the same leniency if it were a small firm that made the same mistake.

The case is Two-Way Media v. AT&T, 5:09-cv-00476, in the Western District of Texas; and AT&T v. Two-Way Media, 14-1302 in the Federal Circuit.

Wednesday, November 26, 2014

More on Lawyer Civility

On Tuesday I had to share a silly letter that I got from opposing counsel threatening "sanctions" over the stupidest thing.  It is my sincere belief that lawyers, particularly lawyers in big firms, try to justify and even inflate their bills by picking stupid fights with their opposing counsel.

Then today I get an form email from the Northern District of California basically slamming their lawyers over the same thing. There's a very interesting quote attributed to Chief Judge Claudia Wilken:
“The bench and bar have long bemoaned the decline in civility in federal litigation, especially on the civil side. This year, the court decided to tackle the problem by taking concrete action. After much discussion and a great deal of input from the bar, we promulgated the Guidelines for Professional Conduct for the Northern District of California. The guidelines set forth best practices for attorneys to follow and to cite when litigating cases in our court. While they do not carry the force of rules, our judges expect attorneys to adhere to them.”
There is no mention of my theory that lawyers pick fights just to protract litigation and inflate their bills. But maybe that's just something judges don't like to admit in public.

I'm glad this issue is getting extra attention. I don't want to say "now" because I think it's been getting a lot of attention for a long time.

Perhaps it's my own demeanor, but I don't enjoy working an in area where nearly everyone you work with is constantly threatening you. And I'd be willing to bet the legal industry is alone in this. Heck, look even at the UFC where people are paid to bash the hell out of each other. Even there the fighters generally act professionally to each other. Sure, they frequently threaten to bash each other's faces in, but that is their job. You don't see them taking the beatings personally.

In the legal profession, lawyers seem to take winning and losing personally. Like their clients' case is their own case. Maybe that's where the acrimony comes from. And maybe that's why you see it more in younger, less-experienced lawyers. Either way, until we identify the cause, I don't see this issue going away.

Monday, November 24, 2014

Where Is The Professionalism?

I have started writing more frequently about how the legal profession seems to be coming off the rails in terms of professionalism and civility. Maybe it’s always been this way and I’m just getting more sensitive to it.

Excessive billing is the number one problem for general counsel at companies spending upwards of $5 Million or more per year on legal fees. Companies spending that much rarely hire small firms; and when they do, I would be shocked to learn it’s the small firm bills they’re complaining about.

But how do they do it? How do big firms run up the bills? Lots of ways.

One way is churning bills like happened to Mr. Victor.

Another way is just picking fights. How, you ask? I’ll show you.

I do a lot of litigation. So ask yourself what should the lawyer’s role be in litigation. Is it dispute resolution? Or is it dispute escalation?

I have always believed that the lawyer’s role should be to help both sides resolve their dispute. Apparently I’m in the minority. More often than not, lawyers I’m up against seem to view their job as doing everything they can to pick fights with me. I’m convinced the only reason they do it is to run up their client’s bills.

You see, if the lawyers on both sides can work together, the dispute often gets resolved fairly easily and quickly (read "cheaply"). But when the lawyers are constantly picking fights with each other, guess what happens. Litigation drags on when it shouldn't. Each side’s hackles get up and they want to fight. Long protracted fights generally means huge legal bills.

“They said what?!?!”

"We'll show them!"

"You can't let the other side talk to you like that. Let me prepare a motion!"

So how do lawyers pick fights? By constantly threatening the other side over trivial insignificant stuff. Maybe discovery disputes over irrelevant documents, or just silly debater's points. One set of lawyers actually used a paralegal to set up their opposition for a DUI. Ordinary folks call these “bulldog litigators.”

Here’s an example. I represent a small company trying to make its way. We got in a tiff with the Flipboard people over my client’s name. We could have tried to resolve this like adults and negotiate a reasonable settlement, but no. The other side’s litigation strategy was to make threat after threat of sanction and woe and doom. None of which ever came to pass, really. It almost never does. But they are bulldog litigators, so the case pressed on.

I actually asked Flipboard’s lawyers once, face-to-face, about whether we could discuss settling the case. His exact words were: “That ship has sailed.” I wonder if his client knew he had no interest in trying to stop their bleeding money.

So the litigation pressed on through countless threats. We lost at trial and my client is changing its name. Fine. But even after trial, it still never ends. Below is a letter I got from Flipboard’s lawyers threatening sanctions (again) because my client did not add some conspicuous disclaimer on its web site as fast as Flipboard liked. Really?

How much did Flipboard have to pay their lawyer to write this letter? Figure about $1,000 minimum. One lawyer had to write it, send it to the partner for review, send it to the client for approval, then send it to me. Easy $1,000. Probably more. And why? Is it because they really wanted my client to put a little disclaimer on its web site? Of course not. It was for no reason other than to try and pick a fight so they could generate more billings.

How do I know this? Well easy. Because if they really just wanted my client to put up a disclaimer, all their lawyer had to do was spend three minutes picking up a phone and calling me. Maybe even send me an email. Too easy.

Easy, but not expensive enough.

The point to all this is there are too many lawyers who view their jobs as dispute escalation rather than dispute resolution. Dispute escalation means more money to the lawyers. Dispute resolution means less money to the lawyers. It’s that simple.

So if you are a general counsel trying to cut your legal bills, maybe the first thing you should do is ask your lawyer what he or she is doing to resolve your dispute rather than just win it.

One final note if you are a Flipboard user. You should be careful what information you provide to the Flipboard people using their app. If they feel the need, they will actually dig through their records and use your personal information in court proceedings. And you don’t even have to be the one with the legal dispute. In our case, Flipboard actually tried to use the personal information collected from an innocent third party in court proceedings against my client. Something to think about if you use Flipboard.

Thursday, November 6, 2014

Dallas Buyers Club Injunctions Slapped Down

There are several Dallas Buyers Club cases pending here in Seattle. As is happening around the country, DBC is pushing forward to get subscriber information and then demanding settlements. These settlements include a stipulated injunction against any further infringement. The terms of hose stipulated injunctions don't really matter too much to the subscribers, but they create substantial marketing value for DBC.

Frequently a court is willing to enter pretty much any agreement between the parties if it means the case is settled. After all, if that's what both parties want to settle the dispute, then so be it. But inevitably a judge comes along who actually reads these injunctions with an eye toward fairness. Judge Jones in Seattle is one such judge. Rather than just rubber stamp the injunctions, Judge Jones called out problems that rendedered them unenforceable.

More specifically, Judge Jones wrote that the "court encourages the resolution of disputes, but the court declines to affix its imprimatur to an injunction order (which comes with the consequence of civil contempt for violations) under these circumstances. The court will not enjoin parties unknown to it, it will not enter a permanent injunction absent a judgment unless the parties cite authority permitting the court to do so, and it will not enter an injunction that has no effect other than to require the parties to follow the law."  See Order below.

In a nutshell, Judge Jones is telling the DBC folks that the Court will not attach the dignity of the Federal Judiciary to a simple marketing ploy for the purpose of generating even more and more strong-arm settlements. Good for him. Good for us all.

The entire order is embedded here:

Thursday, October 23, 2014

WLG Assists Inventor To Patent Victory

The Whitaker Law Group and the Mann Law Group represented Mr. Tom Lalor in his patent infringement litigation that just culminated in a jury verdict in his favor. Mr. Lalor invented a more comfortable dog collar that included raised areas on the collar housing to help reduce the pressure on the dog's neck. The reduced pressure results in fewer sores and a generally more comfortable experience for the dog.

Apparently his invention was attractive, because after seeing it at a dog show in 2004, the "Invisible Fence" company came out with an infringing product. Some letters were exchanged, and this law suit ensued.

The case started in April of 2010 and had a long, tough haul to finally get to a jury. The case was initially dismissed back in 2012 but appealed to the Federal Circuit, which reinstated the case. After a couple more years litigating, the case finally went to trial in October of 2014.

The Whitaker Law Group assisted the Mann Law Group at trial and had to overcome some substantial hurdles to secure victory. For example, the defendants (the "Invisible Fence" people) were able to knock out Mr. Lalor's technical expert before trial on procedural grounds, which could have severely impacted Mr. Lalor's ability to prove his case. Not to fear, through the able and skilled cross examination of Phil Mann, Mr. Lalor was able to prove his case using the defendants' own expert witness.  Why hire your own expert witness when you can just use the other side's?

Other surprises awaited us during trial, but at the end of the day, the jury handed down a verdict in Mr. Lalor's favor. The verdict is embedded below.

For any of you in the area who want to hear some really interesting war stories, get in touch with me and we can have coffee. As usual, this case had some extremely surprising and interesting moments.

Friday, August 29, 2014

Dallas Buyers Club: UPDATE

NOTE:  Someone called my office this morning and left a message for me to call them back regarding this case, but unfortunately I cannot make out the phone number that was left on the recording.  Female voice, calling on behalf of her husband.  If this was you, please try calling my office again:  206-436-8500.

So as expected, the Dallas Buyers Club filed their motion for expedited discovery (see below) asking for leave to get the names of 10 subscribers.  Last week, Judge Jones granted that motion and gave the subscribers 30 days from notice to quash the subpoenas.  It looks like this case may be going the same way as the earlier cases, referred to by the plaintiff in its "Notice of Related Cases" (see below).

Thursday, July 31, 2014

Dallas Buyers Club Comes To Seattle

There has been much already written about the Dallas Buyers Club copyright cases; DieTrollDie even has a whole page dedicated to following the Dallas Buyers Club suits.  So it was inevitable. The Dallas Buyers Club cases have finally reached Seattle.

The Lowe Graham Jones firm just filed a new complaint against 10 Does here in the Western District of Washington. The complaint is below.  The case is styled: Dallas Buyers Club v. Does 1-10, Case No. 2:14-cv-01153 (WAWD).

Like other similar cases brought here, this case was assigned to Judge Lasnik, who did not receive well the prior round of copyright suits. Read Judge Lasnik's comprehensive order dismissing most of the other cases under FRCP 12(b)(6).

Tuesday, June 24, 2014

Is The Federal Circuit Patent-Friendly?

As a technology lawyer, I frequently hear complaints (generally from the defense bar) that the Federal Circuit is "so patent friendly."  There's a recent post by Timothy Lee at about how the Supreme Court has to rein in the rogue Federal Circuit. Mr. Lee is apparently pretty vociferous about his opinion too, sharing it on the Washington Post and ArsTechnica. Many people share Mr. Lee's opinion, but why?

I did find one guy who at least said, wait a minute.  Are they really that patent-friendly? So are they?

So here's the simple question: Is the Federal Circuit patent-owner friendly like many people say? There seems to be a simple way to find out. Rather than ponder and wonder, why don't we just take a look at how the Federal Circuit actually rules on patent cases.  So I decided to do just that.

It was a bigger task than I envisioned, but I went to the Federal Circuit website and downloaded every patent-related decision they handed down so far this month (June). Then I read each one and simply determined whether (1) the lower court ruled in favor of the patent-owner or the accused-infringer, and (2) whether the Federal Circuit ruled in favor of the patent-owner or the accused-infringer. The results might surprise you, although they didn't surprise me.

In June of 2014 (through today, so far), the Federal Circuit has handed down 18 patent-related cases. So of those 18 cases, how many times did the Federal Circuit hold for the patent-owner?

Once. That's right, once. The score this month is 17-1 in favor of the accused-infringer.

So far, the actual evidence seems pretty overwhelming. For a court that is so patent-friendly, they sure seem to hide it well. If the patent-owner is likely to lose at a rate of 17-1, where is this so-called bias? And if there is in fact a bias, which side does it favor?

I plan to expand my research and check out more cases over a longer period, although it takes a fair amount of work. The Federal Circuit really likes its per curium Rule 36 affirmances, which of course don't say anything about the lower decision.

Monday, June 9, 2014

What Is Happening To Our Profession?

So lawyers really have a bad reputation. I've been practicing law for nearly twenty years, and I have often tried to tell myself that all the ill will towards my profession is undeserved. But I fear I'm fighting a losing battle. Ordinary people just don't trust lawyers.

And when I read articles like this one I wonder why they should. Before you read on, understand that I personally condemn this kind of conduct as the absolute antithesis of professionalism. I would never, even against my most bitter rival, ever employ such tactics.

So there's this defamation suit going on down in Florida.  Law firm of Adams & Diaco on one side; C. Philip Campbell on the other. I knew nothing about either firm before reading this article. I wish I still knew nothing about them.

Mr. Campbell, the lawyer for one side, was sitting in a bar one evening when along came the good Miss Personious to keep him company. By all accounts, Miss Personious was very flirty with Mr. Campbell, and tried to get him liquored up.  By the end of the evening, Miss Personious had convinced Mr. Campbell to drive her home in her car. So far, one would assume that Miss Personious was just a hooker.

As Mr. Campbell pulled out of the parking lot with an intoxicated Miss Personious in the passenger seat, he was pulled over by Florida's not-so-finest.  Mr. Campbell was charged with driving under the influence and arrested.

The absolutely shocking part of the story, which I left out until now, is that Miss Personious was not a hooker. She was a paralegal at Adams & Diaco; that's right, the law firm on the other side of the case from Mr. Campbell.


Turns out it was not. Miss Personious had been plotting with the partners of Adams & Diaco all night--exchanging countless text messages and phone calls to report on the developments of the evening. Amazingly, one of the partners of Adams & Diaco had actually arranged for his friend at the Tampa Police Department to have an officer pull Mr. Campbell over as soon as he pulled out on the street in Miss Personious' car.

Hogwash you say. This can't be proven. This must just be the biggest coincidence in the history of coincidences. But actually, it's true. Phone logs and records confirm the events. There may have even been some admissions. I just can't believe anyone would be so spiteful, let alone an entire group of thugs and bandits.

These people don't deserve a law license. They don't deserve a driver's license. Anyone who thinks that these kind of tactics are the right way to do business just doesn't belong in polite society.

Link to charges against one of the partners, Adam Filthaut

Wednesday, April 2, 2014

WLG Assists Mann Law Group Secure Patent Infringement Jury Verdict

The Whitaker Law Group joined the Mann Law Group recently to try the case of GuideTech, Inc. v. Brilliant Instruments, Inc. The case involves U.S. Patent No. 6,226,231 ('231 Patent), which relates to devices for measuring very, very small time differences for a long time.  These are called Continuous Time Interval Analyzers, and they are used to test high-speed digital components.
We tried the case to a jury, and after four verdicts, GuideTech finally secured a win of infringement against its rival manufacturer.
The trial was short, but amazingly unpredictable. There's a very interesting story about the jury changing its mind about one verdict pretty much as the gavel was coming down. I'll have to share that one after post-trial motions are over.

Sunday, February 9, 2014

Playboy Sues Over Kate Moss Photographs

Magazine sues for copyright infringement over unauthorized use of photographs
Kate Moss (By Michel Haddi)
What better way to celebrate your 40th birthday than by having naked pictures of yourself shared on the Internet?  Famed fashion photographers Mert Alas and Marcos Piggott have captured the naked essence of Kate Moss for Playboy magazine.

Harper's Bazaar publisher, Hearst Communications, has been sued for the unauthorized distribution of several images that were scheduled to come out in the 60th anniversary issue of Playboy magazine. Lots of celebration was planned and expected. 

Then, out of the blue, apparently Harper's posted on its website a clothed photo of Kate Moss with a link to another website showing the good stuff:: nude and partially nude photos of the 40-year old super model.

Woo hoo.

Of course, there's nothing new about nude pictures of Kate Moss.  Just use Google and you can have all the nude pictures you want. But this is different.  This is a 40-year old super model. A woman with a couple years under her belt who still looks almost as good as when she was 18; some would say better. 

This case is really about stealing Playboy's thunder.  They wanted to celebrate their 60th birthday by demonstrating to the world that when you're good, age is just a number. Then Harper's steps in and practically ruins the whole thing. What good is a surprise party when the guest of honor has already been tipped off?  Sure, it's still a party; but it's not a surprise party.

And that's what we have here.  Playboy got pissed because Harper's largely eliminated all the hype and anticipation of seeing a 40-year old model in a 60-year old magazine. There's a lot of intangible value to that.  Just ask any soldier or policeman about the element of surprise. Dropping something on someone before they know about it is a huge benefit.

And that's why we have these silly things called "laws" to guard against things like this. I actually had a potential client call me the other day and ask me if I thought it was "ethical" for a rights-owner to try and protect its intellectual property rights. I didn't know what to say. Is it ethical to get an advance copy of highly secretive images and publish them to the Internet just to garner some pre-publicity for yourself?

Propriety aside: There are laws to which society must adhere. What happens when someone decides that silly "murder" law shouldn't be complied with? What happens when someone likes your stuff more than theirs? We are a nation of laws; they should be respected and enforced even-handedly.

People should be no more persecuted for minor indiscretions than they should be for the willful disregard of the rights of others. Is it right to demand $100,000 from everyone who made an unauthorized use of your copyrighted material?  Not always, but sometimes yes. Undeniably, yes.

Good luck to Playboy in this case.  I hope they make Harper's pay.

Wednesday, January 22, 2014

Judge Rice Dismisses Elf-Man's "Indirect" Theory of Liability

Well, you can't win them all. The other day I wrote about Judge Lasnik's ruling that an IP address alone was insufficient to sustain a complaint for direct or contributory copyright infringement. Today, Judge Rice ruled exactly the opposite.

To recap, some of the defendants in the Elf-Man case in Eastern Washington filed the same motion that was filed in the Western Washington Elf-Man case. Actually, Mike Matesky prepared and filed the same motion on behalf of several of his clients who happen to be in both the Eastern and Western Districts.

So now the layperson gets to see how the sausage is made.  Two different judges in two districts that sit right next to each other are both presented with the same motion filed against the same complaint by the same plaintiff.  One judge grants the motion, the other judge denies most of it.

Why you ask?  Who knows!

The point is there is no clear cut answer in litigation.  One of the most frustrating things for me when speaking with new clients is that they seem to think the law is cast in stone, unbendable and absolute--all the answers must be clear-cut.


I don't care how well you think you know the facts and the law, I guarantee you cannot predict what a judge or jury will do; I don't care what you read on wikipedia.  After all, these are human beings with their own experiences and mindsets. Everyone is different.

So if you call me and ask "what's going to happen with my case," maybe you can understand a little better why the answer is always "I don't know."  I can give you an educated guess, but there is no way to know for certain what will happen.  In litigation, you just have to accept the uncertainty and roll with it.

Monday, January 20, 2014

IP Address Alone Not Enough To File Suit

So Friday, Judge Lasnik of the Western District of Washington, right here in good ole' Seattle, held that an IP address alone was insufficient to state a claim for copyright infringement against the ISP subscriber.

What does this mean? Plenty.

I'm struggling a little with how much to say about this case, because it means different things to lawyers than non-lawyers. For now, I'll just describe it in terms that most people reading this blog will appreciate.

In order for a copyright owner to have the right to file a copyright infringement lawsuit, the copyright owner has to do a bunch of things first. One thing is to actually register the copyright with the Copyright Office. You don't have to register the copyright before the infringement began, but you do have to register it before the court system will let you file a suit.

Another thing the copyright owner must do first is allege sufficient facts that make it "plausible" that the person being sued is the actual one who did wrong. In other words, the federal court system doesn't let you maintain a lawsuit against just anyone without demonstrating that you actually have a case against that person.

Let's assume for the sake of argument that a copyright owner did, in fact, identify an IP address that was observed downloading a copyrighted work without authorization.  Classic copyright infringement. Many, many people have argued that an IP address alone is not enough evidence to identify the actual person who downloaded the work.  In other words, even if you have the IP address, you still don't know who the person is that might have done it.  But that's all the copyright owners have when they file these bittorrent lawsuits.

So the argument goes that since the copyright owner can't identify the actual person who downloaded the movie, they don't have enough facts to maintain a lawsuit against the Internet subscriber.  The person who downloaded it could be anybody (again, we're assuming that someone did actually download the movie at this IP address). This argument has been made before, but it usually fails.

But on Friday, Judge Lasnik here in Seattle held that an IP address alone was not enough.  He likened the IP address to a telephone number, and said that just because someone pays the phone bill doesn't mean me made a specific call.  There's a certain compelling logic to that position.  Judge Lasnik went on to say that an IP address was actually less likely to identify a specific person than a telephone number because random strangers can squat on your unsecured WiFi, unlike your telephone line.

So to those of you who want to know if a copyright owner can actually file a lawsuit against you--an Internet subscriber--with no evidence other than your IP address, then the answer is YES, they can file it.  But they can't maintain that action, at least not here in Seattle.

Judge Lasnik's order is just below, and under that is a different order by Judge Hegarty of the District of Colorado who held exactly the opposite.

For more on the legal analysis, visit FightCopyrightTrolls. Also, a big congratulations to Mike Matesky who successfully brought and argued this motion.