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Commercial Roundup – April 16, 2024

By Barry Barnett on April 16, 2024
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We round up the most significant appellate decisions relevant to commercial litigation each week.

Commercial Roundup has some catching up to do this week. See the jumbo installment below.

  • Multiple terms in speech-recognition patent deserved broader construction.
    • 22-1939.OPINION.2-16-2024_2271458.pdf (uscourts.gov)
  • Allowing any discovery on arbitrability amounts to denial of stay and authorizes immediate appeal.
    • 23-30182-CV0.pdf (uscourts.gov)
  • Internet service provider’s failure to boot subscribers it knew often pirated music online made it a contributory copyright infringer.
    • 211168.P.pdf (uscourts.gov)
  • FTC sues in Oregon to block $24.6 billion “supermarket mega merger” between Kroger and Albertsons, noting loss of competition on price and quality and harm to workers.
    • https://lnkd.in/g7kiYmUj
  • Racing board’s ruling on horse naming against didn’t preclude owner’s first amendment challenge.
    • 23-55735.pdf (uscourts.gov)
  • Failure to object to mention of patent applications’ filing dates before jury dooms bid for new trial.
    • 22-1391.OPINION.2-26-2024_2276014.pdf (uscourts.gov)
  • Settling with a defendant for a big amount it can’t/won’t/doesn’t pay reduces non-settling defendants’ liability for the full amount.
    • 220168.pdf (txcourts.gov)
  • All plaintiffs must incur their “principal injuries” in the forum state for CAFA’s “local controversy” exception to federal jurisdiction to apply.
    • 23-40591-CV0.pdf (uscourts.gov)
  • Certificates for car dealer loyalty programs qualified for copyright law protection.
    • 24a0039p-06.pdf (uscourts.gov)
  • Death of witness before parties could complete his deposition barred use of his testimony.
    • 24b0001p-06.pdf (uscourts.gov)
  • Briefs can’t incorporate other briefs if incorporation results in brief that exceeds word count limit.
    • 22-1093.ORDER.2-16-2024_2271495.pdf (uscourts.gov)
  • Judge’s email to lawyers didn’t count as rendition of judgment.
    • 220242.pdf (txcourts.gov)
  • Insurance didn’t cover losses from closure of restaurants due to COVID-19 because virus didn’t materially alter property or deprive owner of its possession.
    • 7opn24-Decision.pdf (nycourts.gov)
  • Law of Venezuela governed validity of notes its national oil company issued.
    • 7opn24-Decision.pdf (nycourts.gov)
  • Patent on method for serving online ads recited abstract idea and lacked enough inventiveness to pass muster under Alice’s Section 101 test for patent eligibility.
    • 22-1756.OPINION.3-5-2024_2280474.pdf (uscourts.gov)
  • Prior art made claims in patent on strep vaccine obvious.
    • 19-1871.OPINION.3-5-2024_2280462.pdf (uscourts.gov)
  • Claims in battery patent didn’t contain contradiction and therefore didn’t fail for indefiniteness.
    • 23-1194.OPINION.3-6-2024_2281183.pdf (uscourts.gov)
  • Ruling on all “issues” but not all “claims” made final judgment non-final.
    • 202214136.pdf (uscourts.gov)
  • Antitrust Division would lose automatic funding boost from increase in merger filings.
    • Biden Is Hyping Antitrust Policy. Congress Is Cutting It. (yahoo.com)
  • How do tech giants stay on top? By coopting people and things that would disrupt their dominance.
    • Coopting Disruption by Mark A. Lemley, Matthew Wansley :: SSRN
  • White House calls for $823 million to antitrust enforcers–more than 50 percent boost over 2021 levels.
    • FACT SHEET: The President’s Budget Lowers Costs for the American People | The White House
  • Drug makers didn’t show grounds for halting release of in-house lawyers’ writings about sham patent lawsuit under crime/fraud
    • 232412p.pdf (uscourts.gov)
  • Airline could enforce arbitration clause in booking site’s terms and conditions.
    • 21-16083.pdf (uscourts.gov)
  • Patent Act bars use of oral testimony in proceeding to oppose registration of trademark and therefore precludes subpoena for an oral deposition.
    • 221871.P.pdf (uscourts.gov)
  • FAA Section 1 exempted worker whose job made him a link in movement of goods from abroad to places in U.S. from arbitration.
    • 23-55147.pdf (uscourts.gov)
  • New York tour bus firm pleaded enough basis for its claim that bigger firms arranged to shut it out of the hop-on, hop-off market.
    • 27mem24-Decision.pdf (nycourts.gov)
  • Watch maker’s use of “red gold” to describe time pieces’ color made “fair use” of “RED GOLD” trademark.
    • 22-366_complete_opn_post.pdf (uscourts.gov)
  • Exemption in federal Arbitration Act for “class of workers” didn’t apply to LLC.
    • 24a0058p-06.pdf (uscourts.gov)
  • Former director of company that went belly up failed to show he couldn’t afford a defense without D&O insurance money.
    • 23-690_opn.pdf (uscourts.gov)
  • The Complaint in United States v. Apple Inc. (D.N.J.).
    • https://www.linkedin.com/posts/barry-barnett-8313014_us-v-apple-inc-complaint-3-21-24-activity-7176705877624717312-U07k?utm_source=share&utm_medium=member_desktop
  • Matt Stoller explains U.S. v. Apple Inc.
    • Why the Apple Antitrust Suit Matters – BIG by Matt Stoller (thebignewsletter.com)
  • “New use” that releases cancer-causing agents doesn’t include use the EPA just learned about.
    • 23-60620-CV0.pdf (uscourts.gov)
  • Laches barred Rolex’s claim for profits of firm that fixed Rolex watches with non-Rolex parts.
    • 22-10866-CV1.pdf (uscourts.gov)
  • Refusal to order specific performance of “best efforts” clause didn’t justify interlocutory appeal.
    • Download.aspx (delaware.gov)
  • Context made report of “cure” for COVID-19 not false or misleading.
    • 22-55641.pdf (uscourts.gov)
  • Safe harbor kept import of heart valve devices from providing basis for patent infringement claim.
    • 22-1877.OPINION.3-25-2024_2290338.pdf (uscourts.gov)
  • Non-parody use of video failed Warhol test for copyright law’s fair-use doctrine.
    • 010111022699.pdf (uscourts.gov)
  • Prior art that disclosed all elements of invention without combining them didn’t render the invention invalid because obvious without proof that a person of ordinary skill in the art would have felt a reason to combine the elements.
    • 22-1998.OPINION.3-27-2024_2292085.pdf (uscourts.gov)
  • Lack of intent to use trademark in commerce provides basis for zapping registration.
    • 22-16190.pdf (uscourts.gov)
  • Error in reading limitations into patent claims caused error in analysis of defense that prior art made claims invalid because obvious.
    • 22-1258.OPINION.4-1-2024_2293991.pdf (uscourts.gov)
  • Details about firm’s scramble to hang onto stock exchange listing supported loss causation and falsity elements of securities fraud claims.
    • 22-55760.pdf (uscourts.gov)
  • Antitrust Division’s formal statement that it “closed” a probe didn’t bar it from starting a new one or reopening the old one.
    • 23-5065-2048352.pdf (uscourts.gov)
  • Party that claimed cost of arbitrating arbitrability put any remedy for harmful conduct out of reach failed to present proof that action in court would cost less.
    • 220830pc.pdf (txcourts.gov)
  • For want of an expert report, a (copyright infringement) case was lost.
    • 24a0075p-06.pdf (uscourts.gov)
Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

TRIAL COUNSEL
Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

COMPLETE PACKAGE
A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

HARD GRADERS
Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

CIVIC ENGAGEMENT
Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

KEEPING PERSPECTIVE
Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

PERSONAL
Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.

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  • Posted in:
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  • Blog:
    The Contingency
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  • Article: View Original Source

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