I guess our post about the Mavexar hearing last week was remiss in failing to talk about the "mansplaining brief." I've had a couple of people ask me about it. Here is the background and some quick thoughts.
Chief Judge Connolly Orders Mavexar-LLC's Sole Member to Testify In Person
The short version of the leadup: Mavexar is an entity that creates LLCs to assert patents against tech companies for quick settlements, often in Delaware. The LLCs take all of the risk, and Mavexar keeps 90-95% of the profits while hiding its identity.
Last year, Chief Judge Connolly talked to one the sole member (owner) of Backertop, one of the Mavexar LLCs, about this arrangement. That sole member happens to be a paralegal who is married to an attorney who worked at Mavexar.
Now, after some further investigation, the Court would like to talk to her again. It has suggested that the actions of Mavexar, the LLC, or its attorneys in hiding its identity may have involved a fraud on the Court or on the patent office.
The Court initially set a hearing date for June 8. Backertop's owner pushed back, offering to testify remotely because she is tied up all summer with trials for her law firm employer.
The Court denied that request, but moved the hearing back to July 20 for her convenience. The Court also e-mailed a copy of the decision to the managing partner of the law firm where she works as a paralegal:
I will also provide . . . the managing partner of the Holmes Firm, with a copy of this Memorandum Order and, to explain the situation at hand, copies of Nimitz Technologies LLC v. CNET Media, Inc., 2022 WL 17338396 (D. Del. Nov. 30, 2022) and the Memorandum Opinion and Order I issued on May 1 (No. 22-572, D.I. 32, 33; No. 22-573, D.I. 34, 35). Doing so will ensure that [the paralegal witness] receives notice of this Memorandum Order; and I suspect that Mr. Holmes will explain to [her] that, contrary to the assertions in her declaration, his firm does not in fact "require [her] physical presence" somewhere other than Delaware "throughout the entire summer" such that she cannot attend a hearing before this Court.
Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC, D.I. 37 at 6-7 (D. Del. May 31, 2023).
A week later, in an order responding to another motion, the Court stated that the managing partner had responded that her schedule is clear:
On June 1, 2023, the managing partner informed the Court by email that nothing related to [the Backertop owner's paralegal work] would prevent her from attending the July 20 hearing.
Id., D.I. 39 at 2.
Backertop's Owner Accuses the Court of Harassment
Shortly thereafter, Backertop's owner filed a motion for reconsideration of that order. The motion attached a declaration that accused the Court of "gender harassment and intimidation," and used the word "mansplaining":
The Court has sent the May 31, 2023 Order, along with some other documents, to my employer, Mr. Ronald Holmes ("Holmes"). Mr. Holmes and his firm have nothing to do with this case or Backertop. This communication to my employer has caused a great deal of fear and panic in my life, and put me in a position where I am scared I could lose my job. I feel that the Court is harassing me, by interfering with my life and career, just to force my attendance at a hearing in Delaware, despite my unavailability and despite my availability and willingness to appear via videoconference.
. . .
I feel the Court's ex parte communication to my employer has damaged my reputation at work and disrupted the firm itself, as the Court has now involved my employer and his firm into this litigation. I am deeply concerned that this Court will continue to communicate with and involve my employer, which I fear will further jeopardize and damage my employment and career. I fear any further involvement with my firm on this matter by the Court would jeopardize my reputation and potential employment, and I do not want my firm involved in any manner whatsoever. This ex parte communication has disrupted my work, family, and life, and I am living in a sense of fear and intimidation by this Court. Moreover, I feel the Court requiring me to take additional time off of work to attend an in-person hearing after the Court has initiated its ex parte communication to my employer is damaging in and of itself to my professional reputation. I feel harassed by this Court's requirement of me to travel in-person to Delaware, and feel the Court's treatment of me and its expectation of my employer to "explain" to me what I can and cannot do is textbook gender harassment and intimidation, and further influencing my employer to engage in gender harassment and discrimination (e.g., in the form of "mansplaining").
The Court denied the motion for reconsideration and held that, as the sole member of the Backertop LLC, she must appear in person in Delaware on July 20th.
The Reaction
As you might imagine, that kind of language turned some heads. Without touching on the "harassment" issue, here are some practical thoughts:
- Motions to reconsider are rarely successful, and it's hard to imagine a motion to reconsider this particular order being successful.
- Given the low probability of success on a motion for reconsideration generally, I would think twice (or more) about including this kind of language in a brief or declaration. Did the client really want more publicity on a case it moved to withdraw, and on its relationship with Mavexar? Did the brief and declaration really further the client's interests?
- Backertop's business model involves filing campaigns of patent lawsuits and dragging unwilling companies to Delaware for litigation. It's not surprising that, when Backertop's owner cries foul over having to come to Delaware for a single hearing, that might spark some comment among patent litigators.
In any event, the briefs are attached below if you'd like to put it in context, and we'll do our best to attend the July 20th hearing and report back.
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