A Blog About Intellectual Property Litigation and the District of Delaware

Entries for tag: Litigation Funding

Typically, if you want know how much the opposing counsel is spending on a case, you can come to a rough estimate based on how much they seem to be filing. Alternatively, you can just ask, which usually goes something like this:

Q. So . . . uh, how much are you spending?
A. None of your beeswax nerd.


Hold your applause please
Hold your applause please AI-Generated, displayed with permission

Over the summer, however, there was a rather unique case where the Court ordered the production of documents showing the plaintiffs' costs of litigation thus far and future estimates.

It started with an offhanded request in a discovery dispute letter. The defendant requested production responsive to RFPs on litigation funding documents generally, which they claimed were "relevant to damages and, as this Court has found, for purposes of cross-examination about bias." Oasis Tooling, Inc. v. GlobalFoundries US Inc., C.A. No 22-312-CJB, D.I. 184. The briefing on the issue was no more than a quarter-page.

Judge Burke granted the motion—which at this point clearly implicate litigation costs—in a brief oral order. Id., D.I. 211. Thereafter plaintiff produced the litigation funding agreement (redacted to remove the expected spend at various case milestones) but refused to produce the actual invoices or provide an overall amount paid to date.

Hence another discovery dispute aimed at "enforcing" the Court's ...

"Your honor, we move to turn the apple, so that the jury can only see the side that's not rotten." Giuseppe CUZZOCREA, Unsplash

Yesterday, Judge Williams issued an opinion ruling on motions in limine for the trial starting next week in Cirba Inc. (d/b/a DENSIFY) v. VMWare, Inc., C.A. No. 19-742-GBW (D. Del.) (a case we've discussed several times before).

In it, he addressed several MILs. These opinions are always interesting, but given all of the recent discussion of litigation funding, I thought Judge Williams' order on the plaintiff's litigation funding MIL is worth noting.

Plaintiffs in the case moved in limine to preclude reference to their litigation funding arrangements:

With respect to Plaintiffs …

I don't know if Air Canada actually flies here.
I don't know if Air Canada actually flies here. John McArthur, Unsplash

There were two litigation-funding related hearings set forth tomorrow in Chief Judge Connolly cases. Both were canceled today.

The first was in the Nimitz cases, C.A. Nos. 21-1362, 21-1855, and 22-413. As we discussed last week, the Court set this hearing after Nimitz failed to produce the broad formation- and funding-related discovery that the Court required from it.

Later last week, the plaintiff in that case produced the required documents. Today, the Court canceled the hearing so that it would have time to review the recent production:

ORAL ORDER: Whereas (1) on Thursday, April 6, 2023 at 4:23 p.m., Mr. Pazuniak submitted to the Court documents …

Litigation funding has become a popular topic this year, deserving of its own synopsis. For those who missed out on the recent blow-by-blow events as they happened, relive the saga below.

This is a bit lengthy. You've been warned. Pour yourself a cup of tea first and get comfortable.

Story Plot Points
Emily DiBenedetto

The Exposition: Discovery on Litigation Funding is a Mixed Bag

To set the stage, let's discuss litigation funding disputes in the District of Delaware before the most recent developments. Over the past few years, discovery disputes regarding litigation funding issues have produced mixed results. The Court sometimes grants motions to compel litigation funding materials, and other times denies them, and may (rarely) conduct an in camera review to evaluate …

When I was young, I had a pet crab. Not a hermit crab, but a big honking giant land crab. He lived in a terrarium in my room and I would wave at him every day when I left for school. He would wave back. This is the best part of having a crab.

I Miss You Too Legs!
I Miss You Too Legs! Alejandro Alas, Unsplash

What you might not know about crabs, is that they're smart. They are curious creatures that will spend their whole day wandering around foraging. They will slowly stack rocks in one corner of their tank to make a ramp. They will specifically make this ramp in the corner of the tank that has the inlet for the water filter. They will (somehow) remove the clamps holding the top down and seize freedom at any cost. It's pretty much like the velociraptors in Jurassic Park.

Longtime readers will have guessed that this story is leading to a development in the Mavexar saga. And readers, I will not disappoint you. Just hours ago, Judge Connolly issued a memorandum order in the Nimitz case setting ...

Mavexar Crab

We haven't written about Mavexar for a while. But a new order today shows that the Court hasn't let up.

We discussed last year how, following a hearing in which the nature of Mavexar came out, the Court ordered the parties and attorneys in some of the Mavexar cases to submit to the Court a broad range of communications among the plaintiffs, Mavexar, and their attorneys.

Today, the Court issued a similar order in an additional case, Backertop Licensing LLC v. Canary Connect, Inc., C.A. No. 22-572-CFC (D. Del.). That case was the one at issue in the November 10 hearing, where the owner of Backertop testified that she is a paralegal who is married to …

OK Nate, you win. Mavexar is a crab now.
OK Nate, you win. Mavexar is a crab now. AI-Generated, displayed with permission

We posted last month about two more mandamus petitions regarding Chief Judge Connolly's recent efforts to enforce his standing orders regarding disclosure requirements in his cases.

The Mavexar saga is getting a bit complicated, so here is a quick recap of the mandamus petitions:

  • Chief Judge Connolly scheduled hearings in several cases regarding various plaintiffs' compliance with his standing orders
  • In two of the hearings, the plaintiffs explained that an entity called Mavexar recruited the plaintiffs and took up to 95% of their proceeds
  • The Court ordered some of the Mavexar entities to produce a broad range of communications among the plaintiffs, Mavexar, and their attorneys
  • One …

So, my new year's resolution was not to write any more about the Mavexar hearings until we got something really juicy. Unfortunately, due to the holidays there hasn't been much else to write about these last few weeks. I made it almost 3 days though, which is a personal best for resolutions of this sort.

Howdy Crab Monsters!
Howdy Crab Monsters! AI-Generated, displayed with permission

One of the more interesting aspects of the Mavexar hearings has been the general lack of participation from the opposing parties in the hearings, many of whom have already been dismissed. This unique state of affairs has left me to imagine what the papers might look like if a defendant really went to town on the issue.

Last …

This case, man, it's nothing but twists.

Happy New Year Crab Monsters!
Happy New Year Crab Monsters! AI-Generated, displayed with permission

As we noted last week, Following the Federal Circuit's denial of their mandamus petition, Nimitz failed to produce the documents ordered by the Court by the December 8th deadline. Judge Connolly responded by issuing an order for Nimitz to show cause why it should not be sanctioned for that failure.

Well, Nimitz Responded

On the deadline to respond to the show cause order, Nimitz filed a short (653 word) paper explaining why it had not produced the documents. The upshot is that it intends to seek rehearing of the denial of its mandamus petition:

Nimitz is filing a Combined Petition For Panel Rehearing …

Before we get too deep into the weeds on round 237 of the Mavexar saga, I wanted to propose a mascot. Something we can use on the site so that you can instantly spot one of these posts (you can also use the tags, of course). Having given it all the thought I am prepared to, I propose Mavexar the crab-monster.

Here he is happily greeting you and welcoming you to sit by his fire.

Happy Holidays Crab Monsters!
Happy Holidays Crab Monsters! AI-Generated, displayed with permission

Andrew may have a competing vision, but for now, look for Crab Man!


A Missed Deadline

Following the Federal Circuit's denial of Nimitz's Mandamus petition last week, we saw our first action from Judge Connolly on these newly un-stayed cases. I had not recalled that, under his original order, the plaintiff was scheduled to produce the documents related to its relationship with Mavexar and IP Edge by December 8. As it happens, that was the same day the Federal Circuit lifted the stay.

Neither the Federal Circuit's preliminary stay order, nor its ultimate denial of the mandamus petition adjusted that deadline. Nor, apparently, did Nimitz request the District Court amend that deadline.

So the 8th came and went with no production of documents. Indeed, up through yesterday there is no mention of the submission on the docket, which ultimately led the Court to issue a brief order requiring Nimitz to "show cause as to why it should not be sanctioned for failure to comply with the November 10 Memorandum Order." Nimitz Technologies LLC v. CNET Media, Inc. C.A. No. 21-1247-CFC, D.I. 37 (D. Del. Dec. 14, 2022). The Court did note, however, it would ...