Blawgletter®

Please Don't Bore Us

 
Plavix patent prevails in court -- but at what literary cost?

Do you like dull writing?  Do you relish lifeless prose?

If so, you've come to the right place.

No, seriously.  Blawgletter imagines you tolerate tedious verbiage when it drips from the pen of a federal appellate court, whether one of the 13 intermediate ones or the inerrant-because-final one that sits at One First Street, NE, in Washington, DC.

A decision last week by the Federal Circuit illustrates for us the deadness of so much judicial word-smithing.  Sanofi-Synthelabo v. Apotex, Inc., No. 07-1438 (Fed. Cir. Dec. 12, 2008).

We focus -- perhaps unfairly -- on the writing judge's repetitive use of a single word and variations on it.  The unanimous opinion deploys "state", "states", "stated", "statement", and "statements" no less, on average, than once in each of the 26 pages.

Does the active verb to state so despair of equivalents and cousins?  We can think, off hand, of several -- aver, allege, argue, assert, articulate, asseverate, avouch, avow, cite, claim, clamor, complain, contend, contest, declaim, declare, demand, dictate, insist, maintain, mention, posit, present, propose, say, suggest, and -- our favorite -- yammer.

Liven it up, we say.  Let not power beget literary poverty.  A splash of color embiggens the smallest opinion.

 The RSS icon at left invites you to subscribe to our stately feed.

Ninth Circuit Knocks SOX Claim

Corporate types complain a lot about the burdens of the Sarbanes-Oxley Act.  A decision yesterday by the Ninth Circuit may give them a wee lift.

George Diaz, a shareholder of Digimarc Corporation, a supplier of "secure personal identification systems", sued several of the company's officers and directors for breaching fiduciary duties and violating section 304 of Sarbanes-Oxley.  The misdeeds centered around Digimarc's restatement of income because of $2.7 million worth of accounting errors. 

The district court dismissed the federal claim on the ground that section 304 doesn't create a private cause of action.  The statute provides in relevant part that "an accounting restatement due to material noncompliance of the issue" requires the CEO and CFO of the issuer to reimburse the company for "any bonus or other incentive-based or equity based compensation" they received plus any profits from their trading in company stock during a 12-month period.  15 U.S.C. 7243(a).

The Ninth Circuit agreed.  Noting that the Act lacks an explicit authorization of private suits, the court also found in the statute nothing that implied congressional intent to create a private claim for violation of section 304.  Diaz v. Davis (In re Digimarc Corp. Deriv. Litig.), No. 06-35838 (9th Cir. Dec. 11, 2008).

 Happy Friday, y'all.

Old Renoir Statues Get Copyright Protection, Ninth Circuit Rules

 
The Washerwoman (1917) by Renoir and Guino.

Between 1913 and 1917, Pierre-Auguste Renoir and an assistant, Richard Guino, collaborated in the creation of 11 sculptures.  Guino later obtained the exclusive right to produce and reproduce the objects from the original plaster casts.  In 1984, Guino's successor, a trust, registered copyright in the sculptures with the U.S. Copyright Office.  In 2003, a great-grandson of Renoir sold some of the sculptures and castings of them in Arizona.  The Guino trust sued for copyright infringement.  The district court granted summary judgment to them on liability, and a jury later awarded $125,000 in damages.

The Ninth Circuit affirmed.  Societe Civile Succession Richard Guino v. Renoir, No. 07-15582 (9th Cir. Dec. 10, 2008).

Blawgletter discovered a couple of things from the opinion.  First, that copyright law protects sculptures.  (Okay, we kinda knew that already.)  And, second, that 17 U.S.C. 303(a) of the Copyright Act of 1976 extends the protection to works someone created before January 1, 1978 but that previously had neither fallen into the public domain nor been copyrighted. 

Section 303(a) confers that protection for 70 years after the death of the last surviving author.  Because Guino died in 1973, the copyright will last until 2043.

 Who doesn't wash clothes in the nude?

Vow to Pay on Sales to "Approved Accounts" Doesn't Require Causation; What Would Wittgenstein Do?

 
Ludwig Wittgenstein (1889-1951) thought deep ratiocinations about language.

The Seventh Circuit today tossed a summary judgment that denied commissions to a sales representative.  AA Sales & Assocs., Inc. v. Coni-Seal, Inc., No. 07-2694 (7th Cir. Dec. 9, 2008).

The defendant, Coni-Seal, a maker of automotive parts, entered into a one-page contract that entitled the plaintiff, AA Sales, to a six percent commission "on all products sold to the approved accounts".  The approved accounts referred to potential customers "approved by Coni-Seal prior to solicitation by AA Sales."

AA Sales, with Coni-Seal's approval, over a period of years solicited AutoZone, a big auto parts retailer, to buy parts from Coni-Seal.  But AutoZone demurred.  Later, due to Coni-Seal's introduction of a new line of products but no thanks to efforts by AA Sales, AutoZone came around.  AA Sales claimed that its contract entitled it to commissions even though it didn't procure any sales to AutoZone.

The district court held, on Coni-Seal's motion for summary judgment, that AA Sales couldn't recover because it didn't cause the AutoZone sales.

The Seventh Circuit reversed, saying:

It is a fundamental principal [sic] both of our canons of interpretation and indeed of philosophy of language that particular bits of contract language must be interpreted in their own context.  Compare Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296, 316 (2d Cir. 2007) (Katzmann, J., concurring with en banc judgment) ("Text without context can lead to confusion and misunderstanding."), with, e.g., LUDWIG WITTGENSTEIN § 3.3 TRACTATUS LOGICO-PHILISOPHICUS (C.K. Ogden, trans. 1992) ("only in the context of a proposition has a name meaning.").  During the life of the contract, AA Sales was entitled to commissions based on "all products sold to the approved accounts."  (emphasis added).  This language does not require AA Sales to prove that it actually effectuated sales in order to be entitled to a commission.  On the contrary, we think the contract means what it says:  while the contract remains in effect, AA Sales will be entitled to commission based on all sales to approved accounts . . . .

AA Sales, slip op. at 8 (emphasis in original).

Blawgletter finds nothing remarkable in the opinion except the reference to Wittgenstein.  We imagine that the court had in mind the meaning of "approved accounts" -- the "name" that required "the context of a proposition" before we could know what it signifies.  But, seriously, do we need to go all philosophical to say Coni-Seal didn't do right?  That contract says Coni-Seal will pay for sales to "approved accounts".  Coni-Seal's approval of the account triggers the right of AA Sales to collect commissions on any sales to the account.

We don't mind the court's display of erudition.  But we would appreciate more explanation.  We would learn more . . . and feel grateful for the lesson.

 Our feed expects snow tonight.

Debt Collector Loses on S.J. to Class in Seventh Circuit

The Seventh Circuit upheld summary judgment for a class of Cingular wireless customers against a debt-collecting firm, AFNI, Inc.  The customers' contracts with Cingular permitted recovery of "collection agency" fees "incurred by CINGULAR" or that "we incur".  But AFNI didn't act as a collection agency; it instead bought the customers' debts from Cingular outright.  Neither the contracts nor Wisconsin law therefore authorized AFNI to charge a collection fee.  By charging a fee it had no legal right to collect, the court held, AFNI violated the Fair Debt Collection Practices Act as a matter of law.  Seeger v. AFNI, Inc., No. 07-4083 (7th Cir. Dec. 8, 2008).

The court also concluded that AFNI's ignorance of the law didn't count as a "bona fide error" that might've absolved it from liability.

 "The time has come for someone to put his foot down. And that foot is me."

Annals of Voir Dire: The Bumper Sticker Question

 
We don't know what it means either.

Blawgletter's trial in October and November allowed us to question potential jurors.  The judge's protocol for voir dire -- we say vore die-er in Texas -- gave us all of 30 minutes.  What to ask?

A half hour goes by in a flash.  So, yeah, we had to prioritize.  A bunch.

One thing we didn't try to do:  convince jurors that our side should win.  We saw our top job not as persuading but as finding the stinkers.  And stinkers, as a rule, will clam up on you if you start arguing your case; they'll hide because they want on the jury to vote against you.

We also smiled, gave thank yous (especially for answers we didn't like), and generally tried to project knowledge, enthusiasm, and credibility.

The night before voir dire, our jury consultant made a list of questions.  He also told me he really likes "the bumper sticker question".  The BSQ = what bumper stickers do you have on your car?

The suggestion made Blawgletter roll our eyes.  Also cringe.  The BSQ seems so . . . goofy.

But we feel less skeptical now.  We got through our other questions briskly and so had time for the BSQ.  And what did we learn?

One guy said he had three stickers on his vehicle -- including "Nobama" and "Read My Lipstick".

Another's advertised his interest in mountain-climbing.

A third said his bumper stickers refer to his involvement in iron-man type athletic events.

You could say that only the first venireperson's bumper stickers gave us useful information (and in fact we struck him with a peremptory challenge after the judge denied our challenge for cause). 

But people who slap any bumper sticker on their car, regardless of what it says, tend more toward aggressiveness and narcissism.  (Hat tip to How We Drive.)  Can you say candidate for foreperson?

 Pick me!  Pick me!

Another Total Victory Day for Defendants at Texas Supreme Court

Defendants went four-for-four with the Texas Supremes today.  Blawgletter can't bear to review what happened.  See for yourself here.

 Our feed never did let the little things bother us. 

Quote of the Day: James H. Fowler and Nicholas A. Christakis

 
Does others' happiness make us happier?  (Try not to smile.)

People who are surrounded by many happy people and those who are central in the network are more likely to become happy in the future.

James H. Fowler & Nicholas A. Christakis, Dynamic spread of happiness in a large social network:  longitudinal analysis over 20 years in the Framingham Heart Study, Dec. 4, 2008, bmj.com.

  Happy Friday!

Second Circuit Dings Investment Adviser as Rep for Securities Buyers

Blawgletter summons from our law school days a recollection about the relative prestige and reputation of the U.S. courts of appeals (now 13, then 11).  The Second Circuit stood high on the list.  It still does.  And we think it deserves its standing.

The court's opinion yesterday in W. R. Huff Mgmt. Co., LLC v. Deloitte & Touche, LLP , No. 06-1664-cv (2d Cir. Dec. 3, 2008), illustrates why.  It follows the Second Circuit's unique protocol for opinion-writing.  Which protocol entails:

• Identifying the "term" in which the court docketed the appeal;
• Stating the dates on which the court heard argument and decided the appeal, respectively;
• Naming the judges on the panel;
• Pithily capturing, usually in a single paragraph, the name of the trial court judge, the procedural posture of the case, the lower court's ruling, the principal issues on appeal, and the court's holding;
• Listing the names of counsel and their respective clients; and
• In the body of the opinion, making a compelling case for the panel's decision.

Judge for yourself the helpfulness of the court's summary of the appeal and its outcome: 

Defendants-appellants filed this interlocutory appeal from two orders of the United States Distrct Court for the Southern District of New York (Lawrence M. McKenna, Judge), denying their motion to dismiss the plaintiff-appellee's complaint for lack of standing, and adhering to that decision upon reconsideration.  We reverse on the ground that plaintiff, an investment advisor that has (a) the discretionary authority to make investment decisions on its clients' behalf, and (b) the power of attorey to file suit on its clients' behalf, but does not have ownership or title of the claim itself, lacks constitutional standing to bring a securites action in a representative capacity on behalf of its clients.

W. R. Huff, slip op. at 1-2.  We couldn't have said it better ourselves.

 Brevity is the soul of wit.

Universities Win School Colors Fight

 
Smack Apparel apparently likes to confuse people.

The Fifth Circuit held last week that a t-shirt maker infringed trademarks of four big-time sports schools in their color schemes. 

Smack Apparel slapped sporting garb with the colors of Louisiana State University (purple and gold), the University of Oklahoma (crimson and creme), Ohio State University (scarlet and gray) and the University of Southern California (cardinal and gold).  And -- fatal mistake -- Smack added identifying touches, including "BOUrbon Street or Bust" (Oklahoma) and "2003 College Football National Champions" (LSU).

The district court determined on summary judgment that the universities proved their Lanham Act claims as a matter of law.  The Fifth Circuit affirmed.  Bd. Supervisors for La. State Univ. Ag. & Mech. College v. Smack Apparel Co., No. 07-30580 (5th Cir. Nov. 25, 2008).

 Our feed enjoys talking smack.