One thing I noticed, but failed to mention, in discussing Judge Williams' opinion in Cirba IP, Inc. v. VMware, Inc., C.A. No. 19-742-GBW, week was the following passage on footnotes in briefing:
[T]he Court ultimately needs not address this footnote argument because "arguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived. "
Cirba, at 4 n.3 (quoting Samsung Elecs. Co. v. Netlist, Inc. , C.A. No. 21-1453-RGA, 2022 WL 3027312, at *5 (D. Del. Aug. 1, 2022))
This is a policy we've touched on occasionally on the blog, most notably from Judge Andrews.
Where it gets interesting, is that Judge Williams issued another order with the very same quote on the very same day:
Cherven raises this request for the first time, in one sentence, at the end of its reply letter in support of its motion to strike. "[A]rguments raised in passing (such as, in a footnote) , but not squarely argued, are considered waived."
Chervon (HK) Limited v. One World Technologies, Inc., C.A. No. 19-1293-GBW (D. Del. Oct. 26, 2022) (quoting Samsung Elecs. Co. v. Netlist, Inc., C.A.No. 21-1453-RGA, 2022 WL3027312, at *5 (D. Del. Aug. 1, 2022)).
I hesitate to call two opinions a pattern, but I know I will not be putting any arguments I care about in a footnote before Judge Williams.
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