Often times the hard part of a stipulation is just convincing everyone that they're not secretly giving up the farm. Lawyers are used to looking for hidden hooks in every proffered bite, and it's hard to convince us that this one is just tasty fish. We've all heard some scary store about a stipulation that gave away too much and changed the course of a case.
This is one of those stories . . .
But it turns out fine in the end.
UCB, Inc. et al v. Annora Pharma Private Ltd., C.A. No. 20-987-CFC (D. Del. Aug. 16, 2023), dealt with a patent for an anti-seizure drug compound. The defendants conceded infringement, …
We're back! Our trial was a success, Nate is back from his travels, and things have cooled down enough for us to resume regular posts this week.
While we were tied up, there was some progress in the Mavexar cases. If you recall, Chief Judge Connolly had ordered the sole member of Backertop, a Mavexar-related LLC, to appear in-person in Delaware to answer for the entities' potential fraud on the Court. She objected, stating that she would not appear.
Since then, the July 20 hearing occurred, and as promised she did not appear—although her counsel, and counsel for Backertop, did show up. The transcript for that hearing is below.
Judge Connolly issued a post-trial opinion in a false advertising case this week that contained another interesting bit of damages arcana under the Lanham Act.
AI-Generated, displayed with permission
The trial in CareDx, Inc. v. Natera, Inc., C.A. No. 19-662 (D. Del. July 17, 2023), seemed to go great for the plaintiff with the jury finding 9/10 of the defendant's advertisements were false and awarding $21.2 Million in compensatory damages and $23.7 Million in punitive damages. As we say in Delaware, "that's a lotta crabs"*
It all went tails up in post-trial briefing however, when the defendant moved for JMOL of no damages. The court began by summarizing the elements of a Lanham Act claim in the Third Circuit
1) that the defendant has made false or misleading statements as to his own product [or another's]; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence 3 purchasing decisions; 4) that the advertised goods traveled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will, etc.
CareDX, at 3-4 (emphasis added) (quoting Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc., 653 F.3d 241,248 (3d Cir. 2011))
The highlighted factor is the interesting one. You see, actual deception is ...
As I mentioned on Monday, my co-bloggers Nate, Emily, and I are swamped at the moment, with a trial this week and another coming up in a week and a half—so this will be a less fulsome post than I'd like.
But I wanted to pass along the "Notice of Objection to and Non-Participation in Judicial Inquisition" attached below, in which the Mavexar-related entity Backertop Licensing LLC and its owner refuse to appear for the Court's scheduled July 20, 2023 hearing (and to produce any further documents), in direct contravention of an order of the Court:
NOTICE OF OBJECTION TO AND NON-PARTICIPATION IN JUDICIAL INQUISITION
Former Plaintiff Backertop Licensing LLC (“Backertop” or “Plaintiff”) hereby gives …
We wrote last month about the "mansplaining brief," which caught some eyes around town when it (and the declaration attached to it) accused the Court of "gender harassment and discrimination."
We set out the full background in our post, but generally the Court ordered the sole member of a Mavexar-related LLC to attend a hearing here in Delaware.
She then filed a motion for reconsideration offering numerous objections, including among other things that (1) the Court had no power under FRCP 45 to compel her attendance, since she lives in Texas; and (2) that she is a working mother and therefore unable to travel to Delaware.
Judge Connolly’s new order provides a concise summary of the Mavexar timeline and announced the date of a long-delayed evidentiary hearing in the Creekview case.
Last fall, Judge Connolly ordered a series of evidentiary hearings in approximately a dozen cases to determine whether LLC plaintiffs had complied with his standing order.
According to the Court in his newest order, the first hearing in that series, involving Nimitz, Mellaconic, and Lamplight:
raised serious concerns that the parties may have made inaccurate statements in filings with the Court; that counsel, including Mr. Chong, may have …
"Sure, I had my LLC sue a bunch of people in Delaware, but I didn't think the Court would actually make me GO there."Andrew Russell, CC BY 2.0
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 …
The Court held a lengthy hearing in the Backertop cases today. These are Mavexar-related actions and, if you recall, they involve a Mavexar attorney and his wife, who he appointed as the sole member of a Mavexar patent assertion entity.
How a Patent Assertion Entity is Born
Some of the Court's questions focused on exactly what Mavexar does, and confirmed that they operate basically as set out in the earlierhearings.
Here, from the lawyer's perspective, Mavexar attorneys reached out and said that Mavexar wanted to start several litigation campaigns, and asked whether the attorney was interested. They said that they would figure out what entity would actually assert the patents later.
Chief Judge Connolly issued a memorandum order in the Backertop case today. We talked previously about how the plaintiff in Backertop is an LLC whose sole member is a paralegal who is married to an attorney who works at Mavexar, who gets just 5% of the proceeds of litigating the patents owned by the LLC (the rest goes to Mavexar).
Following a hearing last year, the Court ordered production of various documents, and ordered the owner of the LLC to appear again for a hearing on June 8. She asked to attend remotely due to other obligations.
Today, Chief Judge Connolly denied her request, but rescheduled her appearance for July (the June 8 hearing will still …
I've got a real oddball fact pattern for you today. I'm not sure there's a takeaway for your everyday litigation life, but please remember to hug your experts -- you'll be glad you did.
AI-Generated, displayed with permission
The last time the plaintiff in Personal Audio LLC v. Google LLC, C.A. No. 17-1751-CFC (D. Del. May 22, 2023) spoke to their expert was in August 2021 when he submitted a declaration opposing a Daubert motion.
Sadly, he passed the following January.
Unfortunately, no one told the plaintiff.
Amazingly, two months after that the expert consulting firm plaintiff had been working with reached out to see if the expert was still needed. I can only imagine they were hoping …
This blog is for general informational purposes. It is not an offer to perform legal services, and should not be considered a substitute for legal advice. Nothing in this blog should be construed as forming an attorney-client relationship. If you have legal questions, please consult counsel in your jurisdiction.
