. . . give or take a few I’s, will proceed in 130-odd hours in the Land of Lobster. Why the Roman numerals? Because to imPaneled, Panel hearings are like the Super Bowl. And if imPaneled had more to say about it, they (like the Super Bowl) would be quasi-national holidays. Accordingly, imPaneled is starting the pre-game analysis far in advance of the event.
The argument of MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation, will surely be among Thursday morning’s highlights. imPaneled previously covered that proceeding, wherein the eponymous movant had been deemed a “patent troll” by certain outsiders. We suggested mayhem might ensue as the proceeding moved forward, and we were not disappointed. Fortunately for those of us with an appetite for verbal violence, Brandywine has sued dozens of small companies. Small companies tend to retain small firms that do not frequently appear before the Panel. And such firms are more prone to fighting words than are Panel veterans–which is a good thing.
So one submission opposing Brandywine’s motion starts thusly: “This is a troll case. The troll plaintiff, Brandywine Communications . . .”. Another deemed Brandywine’s parent company “widely recognized as one of the largest patent trolls in the world.” Yet another said Brandywine “indiscriminately filed suit against thirty-nine entities”. . . “without inquiring into the factual basis for its claims.” As to that, another added “[t]his is not appropriate jurisprudence, this is abuse of process.” And finally: “Brandywine has made 41 beds, and now it must lie in each one.” Predictably, the only big business defendant, AT & T, made its points more blandly, as did Brandywine in its reply.
MDL 2463, In re Fresh Dairy Products Antitrust Litigation (No. II), has proceeded without verbal fisticuffs, but with procedural fisticuffs uncommon in antitrust circles. Defendants–who are represented by the cream of the antitrust defense boutiques, among others–made much of plaintiffs’ counsel having dismissed a case upon its § 1404 transfer, only to refile with a new plaintiff in a new district, and of their deeming an alleged indirect purchaser “direct,” in violation of the sacred Rule of Illinois Brick. And plaintiffs scolded defendants for claiming their case was moot immediately upon making an offer of judgment to the named plaintiff, and for petitioning for mandamus when the district court refused to transfer the case to defendants’ preferred district. It’s not just venue–it’s personal. Meanwhile, Hagens Berman, which admits to representing indirect purchaser plaintiffs, is on defendants’ side.
More pre-game insights coming next week. In the meantime, stock up on your beer and munchies, and tell your boss you’ll be sick on Thursday so can you can enjoy the festivities.