More EDTX Data Points on Enhanced Damages, Exceptional Case Fee Awards and Ongoing Royalties

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.

Ezekiel Elliott case – update on status of injunctive relief as to arbitral finding

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.”

Ezekiel Elliott hearing concludes in Sherman

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.

Hearing on request to block Ezekiel Elliott suspension set for Tuesday in Sherman

The NFL Players Asssociation’s request for emergency injunctive relief preventing the NFL from suspending Dallas Cowboys running back Ezekiel Elliott has been set for a hearing in the EDTX courthouse in Sherman at 5pm Tuesday afternoon, September 5. Although ESPN is reporting that the request has been granted, I think they are misreading Judge Mazzant’s order, which simply set a hearing. But perhaps the TRO was granted separately.  

Another Post-TCH Waiver Data Point

Another flavor of waiver argument post-TC Heartland is when a defendant files its motion to dismiss under FRCP 12(b)(3) after filing its answer, in violation of the requirements of Rule 12(h).  The question presented to yet another an Eastern District court earlier this week is whether raising the improper venue defense in the answer preserved the party’s ability to file a motion after the answer was filed.