I’m sorry – I just can’t hear about a court “sitting in equity” without wondering whether everyone needs to reach in their briefcase and find their wigs. (I realize a few may already have them on, and guys, your secret – such as it is – is safe with me). That’s probably not quite what it looked like in Judge Mazzant’s courtroom in Sherman when he pressed “enter” to paste his electronic signature on the opinion in this interesting Lanham Act case dealing with remedies. But a good exposition of the law is always welcome, so let’s see what happened here.
I wanted to flag this ABA Journal article on former EDTX magistrate Judge Don Bush’s “retirement” plans after leaving his magistrate judge bench in Plano last year. After becoming a certified emergency medical technician and paramedic during his last months on the bench, Judge Bush now works weekly shifts at a nonprofit urgent care clinic with an ambulance service.
It’s not as weird as it sounds – when Judge Bush was in college before he headed out to Southeast Asia for a few years with the U.S. Army, he worked in a hospital as a lab tech. His twin brother is a doctor and his son is an ER doctor. His son has been doing medical mission work in Haiti, and earlier this year he went to Haiti with his son, daughter-in-law and three of his grandchildren. He spent two days in the mountains and two in a village; and says that in four days, he saw around 700 people. (Which is about what he often saw in Plano, now that I think about it).
I’ve known Judge Bush since my law clerk days when he was trying railroad cases in Marshall, and almost got to help try a case against him a few years after that. I had several interesting patent cases in his court in Plano a few years back, and really enjoyed appearing before him. The story of how he mediated one of his own cases is still one of my favorites – my current firm was opposite us, and Clyde and I had more fun that afternoon than I have ever had in a mediation. One of our clients got sanctioned before the day was out, but you have to ask me for the story to find out which one. It all ended happily with a grant of summary judgment, which is actually a second story dealing with the unappreciated benefits to defendants of limits on summary judgment. (No one ever asks for that one).
And I’m not even getting into the SpongeBob stories, conversing with witnesses in Korean at trial in Marshall, or the approach a former railroad lawyer takes when handling patent cases (which made so much sense it made my teeth hurt). Don Bush has been one of my favorite lawyers for a long time, and we were fortunate to have him on the EDTX bench for 15 years managing a difficult docket in Plano. Glad to hear he’s still finding something useful to do with his time.
Finally wrapped up my paper on TC Heartland this morning for next week’s seminar – will have it posted with the associated slides after I prepare the slides tomorrow afternoon (isn’t that what Saturdays are for?) One of the last cases I added was one of the most interesting, since it involved a court’s finding that a third party’s business location qualified as a regular and established place of the defendant, which is shaping up to be the Holy Grail of venue findings.
Today’s post celebrates the Cowboys defense’s “lites out” performance yesterday against Kansas City (okay, aside from one play) with an examination of some interesting holdings with respect to an improper venue motion in an EDTX case involving a party named … Lites Out. (I live for this stuff – you know that).
My new favorite verdict form is the one from this case, where the foreperson wrote in “no infringement”. Alas for the defendants, they wrote in $15 million in damages and $2 million on attorneys fees on the rest of the claims, as detailed below.
There are not a lot of personal jurisdiction cases since Daimler AG v. Bauman that provide a current analysis of the law on personal jurisdiction challenges, so this recent opinion from the EDTX is useful for those wanting to update their standards.
Several recent opinions out of the EDTX provide litigants with more data points on enhanced damages – when are they appropriate and when are they appropriately set aside – on how future royalties are calculated, and and on when Section 285 awards of attorneys fees in “exceptional cases” are appropriate. They also provide a helpful analysis of which non-taxable fees and expenses are not recoverable under Section 285.
The other Sherman holding of interest outside the litigation world recently was Judge Mazzant’s ruling invalidating the Obama administration’s rule expanding overtime protections for white collar workers, discussed below.
I wanted to provide a brief update for those interesting in recent activity in the Ezekiel Elliott case pending before Judge Mazzant in Sherman.
While the case is interesting to many due to its subject matter, the Court’s most recent order provides a helpful and potential useful analysis not just of injunctive relief, but of review of an arbitrator’s decision for “fundamental fairness.”
Yesterday’s hearing on whether the NFL’s six-game suspension against Dallas Cowboys running back Ezekiel Elliott would be enjoined or stayed has concluded, and Judge Mazzant promised the parties a ruling Friday. But because of the timing, the NFL agreed during the hearing that the pending suspension would not start until after Sunday’s season opener, regardless of the Court’s ruling. The proceedings before Judge Mazzant in the the two and a half hour hearing focused on whether the proceedings were fundamentally unfair. The Court will decide if 1) there is a substantial chance of success on the merits for the NFLPA and Elliott; 2) there is a substantial threat of immediate and irreparable harm for which there is no remedy of law; 3) if there is a substantial threat of greater injury from not granting the injunctive relief than from granting it; and 4) whether the injunctive relief will disserve the public interest.