There has been so much activity in the Mavexar cases this week that it's hard to keep up. Over the last two days, various parties have requested leave to file a total of six amicus briefs in response to the Mavexar petition for a writ of mandamus in the Nimitz case, and the respondent filed their brief as well.
All of the briefs were great, and many repeat some of the same arguments. I thought it might be worthwhile to take a spin through them and mention a few notable or unique points in each.
(If you need an overview, check out our post about yesterday's 78-page opinion from Judge Connolly on this issue or, better yet, check out the opinion itself.)
Briefs by Parties in the Nimitz Case or Similar Cases
The first set of briefs is from parties with a direct interest in the case:
- CNET. The defendants, including CNET, filed a lengthy and detailed responsive brief that makes a lot of great arguments. They clearly committed resources to opposing the appeal. Their brief is primarily focused on putting the Court's investigation in context. It responds directly to the privilege point, emphasizing that the production is for in camera review, and relays the Court's own statements about why it needs the material.
- Intel. Intel has a direct interest because it is facing—and briefing—similar issues in the VLSI cases, also before Chief Judge Connolly. Their brief highlights the need for transparency and to avoid conflicts of interest. On privilege, they point out that the order doesn't preclude a privilege assertion, and that Nimitz is resisting production of even non-privileged information.
- Power Integrations. Power Integrations filed suit against Mavexar this week. Their amicus brief hits many of the same arguments, but really nails the question of why the Court needs this information. They point to several issues the information is relevant to that I hadn't seen in any other briefs, including estoppel and issue/claim preclusion, motions to transfer, and discovery. They also point out that privilege should only apply to the communications, not the facts, and the Court is after the facts.
Briefs by Other Parties
Several other parties filed briefs, who did not set forth any direct interest in the case or in a similar case.
- EFF. The Electronic Frontier Foundation's brief defends the Court's standing orders largely by focusing on the practical effects and what those orders achieve. In addition to the points above, the EFF discusses how this information is important to ensure standing, and they provide nice, concrete examples of defendants having trouble collecting from these "judgment-proof shell companies."
- Acushnet. The Acushnet brief likewise addresses the Court's authority to issue the order, the potential for conflicts, and how secrecy limits a defendant's ability to recover its fees. They also point out that FRCP 7.1 is about to expand, requiring additional disclosure in diversity cases.
- U.S. Chamber of Commerce. The U.S. Chamber of Commerce makes broader arguments in support of litigation funding disclosure rules generally. They add that these rules facilitate settlement, and even protect U.S. national security interests against foreign entities who may fund litigation.
- HTIA. The High Tech Industry Alliance makes the unique argument that these rules could protect plaintiffs too, in a sense, because these litigation funding arrangements can be so harsh that they prevent a plaintiff from recovering anything. They cite an example case with a financing arrangement where a plaintiff would receive nothing even in a $50 million settlement.
All told, every one of the amicus briefs does a great job of backing up the Court, painting a picture for the Federal Circuit of the context and real-world implications of the standing order and the Court's investigation into these issues.
That said, of course, it's hard to beat Chief Judge Connolly's own 78-page rebuttal.
IP/DE at the Federal Circuit!
Side note: respondents' brief and the HTIA brief actually cite to this blog! It's exciting to see that we're helping bring attention to the Court's efforts here!
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