Amicus in TC Heartland Provides EDTX Statistics

It would take more time than I have available to reproduce and analyze all the briefing and amici filed in the TC Heartland case that’s being argued before the Supreme Court later this month, but I did want to mention one filed today by Ericsson, Allergan and Traxxas.  The reason is that it provides really good current statistics on the district, including win rates, affirmance rates, and so forth, as well as a reference to the recent EDTX-free “Slowpoke Report.  (And major bonus points for using “grouse” as a verb). The brief (attached) is also a good example of

“Federal Practice in the Eastern District of Texas” CLE – Tyler, Texas

The Smith County Bar Association is one of the state’s oldest, having celebrated its 75th anniversary in 2008.  Tomorrow is is hosting five hours of live, local CLE in the jury room of the Steger courthouse in downtown Tyler.

Now you can’t attend, but that’s only because it sold out weeks ago – otherwise they’d love to see you. As I’ve posted on previously, I’m moderating the panel on conflicts and joining the panel on federal & local civil procedure with Wes Hill, Judge Rodney Gilstrap and Judge Trey Schroeder, and am really looking forward to both.  (Okay, not so much on the conflicts, but we’ll get through it).

For a complete agenda for this program that you can’t attend, click here.  I will be sure to tell you later how great it was.

Brit Featherston Appointed Acting U.S. Attorney for the Eastern District of Texas

I want to congratulate my fellow Baylor JD ’92 Brit Featherston, who was appointed Acting U.S. Attorney for the Eastern District of Texas on September 30th, 2016.
Brit started his career in law enforcement in 1981, at the Port Arthur police department, then came to Baylor, where his brother Tom was (and still is) teaching. After graduating, Brit did a bit of insurance defense before returning to law enforcement at the U.S. Attorney’s office.  While there, he was associated with several high profile cases.
James Byrd, Jr. case
Brit and two other federal prosecutors were assigned to prosecute the James Byrd Jr. case. The case revolved around three white supremacists who dragged Byrd behind a pick-up truck for several miles to his death. Of the three charged, two were given the death penalty and the third a life sentence. As a result of the Byrd case, Texas passed hate crime legislation that expanded upon the 1969 federal hate crime law. The resulting legislation has been widely adopted and is still in effect today.
September 11, 2001
On a special detail for the U.S. Department of Justice, Brit moved his family to the 13th floor of a high rise directly across from the Pentagon just two months before 9/11. While he was downtown, his wife, Amy was driving next to the Pentagon when it was struck by American Airlines Flight 77. Thinking a bomb had detonated, she sped away as a hail of debris rained down. For four days, Brit , his wife, and their two-year old Anna, watched the Pentagon burn from across the street. Without power for several days, carrying groceries and Anna up and down 13 flights of stairs became routine.
From Space Shuttle Columbia to Colombia, South America
9/11 is not the only major U.S. tragedy Brit  has witnessed. After completing his work in Washington, D.C., Featherston moved his family back to Lufkin, Texas. Not long after returning to Texas, the Space Shuttle Columbia disintegrated upon re-entry above Lufkin. Featherston coordinated the initial command post with the FBI to manage the recovery of the shuttle and its cargo – what turned out to be the largest search operation ever conducted in the U.S.
In 2009 Brit began working to stem the flow of drugs into the United States by going after the sources by prosecuting organized drug crimes. In 2010 he returned to the D.C. area to become the National Crisis Management Coordinator for all U.S. Attorney’s Offices before returning to the Beaumont  area as the Executive Assistant U.S. Attorney.
Today, Brit’s office works closely with the Colombian National Police and special prosecutors who work directly for the president of Colombia. In coordination with the Colombian police and special prosecutors, and working with the DEA, key drug smugglers who move drugs from Colombia into the United States are identified and extradited.
Congratulations again to Brit for this recognition of his outstanding work. Thanks to Baylor Law School for flagging Brit’s appointment and for providing the above information on his career of service.

General Order 17-01: Creating An Organizational Committee for Association of Women Lawyers of the Eastern District of Texas

Chief Judge Clark recently signed General Order 17-01 creating an Organizational Committee for the purpose of organizing an Association of Women Lawyers of the Eastern District of Texas in affiliation with the Eastern District of Texas Bar Association. The committee is chaired by Elizabeth S. Forrest of my firm’s Sherman office, and includes Amanda Abraham from Marshall and Evelyn Chen of Plano.

2016 EDTX patent verdicts review; 43% Marshall/Tyler win rate; 52% overall; competitor cases increase

2016 saw 19 patent trials in the Eastern District of Texas.  Plaintiffs won 43% in the patent-heavy Marshall and Tyler divisions, but the overall outcome was 52% due to three plaintiff wins in the traditionally less patent-intensive divisions of Sherman and Beaumont. The nine defense wins also saw five invalidity findings, so in almost half the noninfringement verdicts the jury (or in one instances the court) went ahead and invalidated the asserted claims as well. JMOLs Court watchers know how rarely verdicts are set aside on postverdict JMOL, but this year saw three.  Judge Schroeder set aside the first VirnetX verdict in the spring, and Judge Gilstrap set aside the Gonzalez verdict on 101 grounds, as well as setting aside the damages verdict in one of the two Core Wireless trials.  For statistical purposes I count JMOL outcomes on liability as wins for the defendant, which is why I am trying not to refer to “verdicts” this year, in most cases, but outcomes. Beaumont & Sherman Judge Mazzant tried two patent trials in Sherman this spring, and Judge Clark had one, a medical device case, in Beaumont last month.  All three juries returned verdicts for the plaintiff, for $1.2 million, $6 million (later enhanced to $20 million) and $17.4 million (the medical device case). Tyler Plaintiffs almost broke even in Tyler with three outcomes for plaintiffs and four for defendants, with VirnetX chalking up one for each side during the year.  The outcomes represent the range of patent verdicts, with VirnetX over $300 million, the second $22 million, and the third $324,000. Marshall Plaintiffs didn’t break even in Marshall either, with four plaintiff wins compared to five defense wins. The parties and the awards in those cases also illustrate an increasing trend in Marshall filings that I have posted on previously – the district in general and Marshall in particular is seeing more competitor cases and substantially fewer NPE cases, with only a few of the latter going to trial.  Of the four plaintiff wins, two were by Core Wireless, which obtained jury verdicts of $3.5 million and $2.3 million, but Judge Gilstrap set aside the first for insufficient evidence.  The other two verdicts – Genband’s $8.1 million and Arthrex’ $17.4 million were both in hotly contested cases between competitors.  In fact four of the nine trials were between competitors, and of the three NPEs that did go to trial in Marshall, two out of three lost, with one losing its patent as well. Which underscores that asserting patents comes at some risk for competitors – interestingly all four of the trials in which juries invalidated patents were in competitor cases, while none of the patents asserted by nonpracticing entities were found by juries to be invalid (although as noted above, Judge Gilstrap did invalidate one postverdict). So the net outcome for NPEs in Marshall in 2016 was two losses, one win for $2.3 million and a second win for the same plaintiff on liability, but with the prior finding of $3.5 million to be retried.    

Marshall News Messenger review of local court activity in 2016

It’s the time of year for 2016 reviews, and today’s Marshall News Messenger had one I thought readers might be interested in  Judicial system in review: Marshall courts saw throng of good, bad activity in 2016 in which the paper’s local courts reporter  Robin Y. Richardson lists the most significant events in Marshall courts both state and federal during the year.

EDTX motions to transfer grant rate rises to 57%

Good article by Wei Wang, Gregory H. Lantier, Derek Gosma, and Mindy Sooter in WilmerHale’s Eastern District of Texas Newsletter this month on motions to transfer in the district. In it, they note that the number of motions to transfer filed in EDTX cases dropped over half from 2014 to 2015, from 135 to 63, while at the same time success rates rose from 34% to 43%.  They note that filings of motions to transfer are up somewhat this year so far, which I in turn note makes a lot of sense when you consider that the motions to transfer in the large number of Thanksgiving Specials that were filed in late November of last year would have been in 2016.  But, importantly, thus far in 2016 the success rate for motions to transfer has leaped again, to 57%. That’s a 60% increase in the grant rate over just two years ago. They conclude that the higher success rate is the result of better-supported motions, and not because the standard the Court has applied has changed – which I’d agree with. But I’d also note that as with rulings on 101 motions, motions to dismiss and motions for summary judgment it also reflects the significant bubble of relatively weaker cases filed in 2014 and especially 2015 which largely dissipated locally after the eDekka 101 and 285 rulings around the end of last year and the beginning of this year. (More in this in real terms soon).  Also, the standards for venue motions in patent cases filed in courts applying Fifth Circuit law have been pretty stable for several years now, so the variations aren’t because the law has changed or was changing during the period, as I’d argue was the case in 2009-2012-ish. In short, the variable wasn’t the judges or the law – it was the quality of motions and the quality of the facts they were based on.