Motion For Summary Judgment Research Articles

Santa Clara Law Best Practices in Patent Litigation Survey

Over the past few years, Congress, appellate, and district courts have made significant strides to improve patent law and litigation practice. Congress is now considering making more changes, to supplement ongoing tailoring by the courts. Dialog between the patent bench, patent bar, and lawmakers is crucial for informing these efforts. To support this dialog, we developed, in consultation with judges and company lawyers in spring of 2013, a list of questions to probe the experiences, opinions, and suggestions of lawyers. We asked survey takers to rate, on a range from ineffective to very effective at enhancing the efficiency of litigation, certain existing and proposed practices and interventions, and converted these scores into numerical ratings (up to a highest possible effectiveness score of 100%). Based on over 500 responses, about a quarter from in-house counsel mostly at large technology companies and the remainder from outside (law firm) counsel, we probed a number of topics, and made a number of findings.For example, the highest rated intervention of any was timely decisions on summary judgment motions (86%) followed by timely decision on transfer motions (71%). Early claim construction also rated highly (around 68%). Among recent reforms, the FCAC e-Discovery model order ranked the highest in effectiveness (45%). However commentators said of many recent reforms that too much variance in court uptake and implementations, due to the discretion given to judges, undermined their effectiveness. Among proposed legislative reforms, fee-shifting and sanctions for prevailing parties and for discovery abuses rated most favorably (~65%). Based on about one hundred outside counsel responses, discovery abuses, followed by frivolous claims/defenses, were in the greatest need of sanction or shifting. Respondents also identified abuses that tended to be particular to plaintiffs: evasive discovery responses, overly burdensome or excessive discovery requests, frivolous/meritless claims, and unreasonable claim construction positions; as well as to defendants: stalling or failing to provide requested information, hiding non-infringement positions, and unreasonably delaying or asking for late trial dates. We asked about the contexts of patent litigation – 86% of in-house counsel reported that their company’s customers had received PAE demands based on the use or implementation or the company’s products. There was a split in responses about monetization of patents – slightly more than half of inhouse respondents indicated that their company had not experienced greater pressure to monetize, while slightly less than half indicated that their company had either monetized (23%) or were thinking of doing so (28%).

Bayer Healthcare Pharmaceuticals, Inc. v. Watson Pharmaceuticals, Inc.: Was the decision to selectively present evidence of commercial success too “clever by half”?

In Bayer Healthcare Pharmaceuticals, Inc. et al. v. Watson Pharmaceuticals, Inc. et al. 713 F.3d 1369 (Fed. Cir. 2013), the Federal Circuit reversed the District Court's grant of summary judgment and found the asserted patent claims obvious in view of the cited prior art. Neither the Federal Circuit nor the District Court addressed the issue of commercial success despite the fact that the patentee had submitted evidence of commercial success in its opposition to Defendants' motion for summary judgment (but not in support of its own motion for summary judgment). This case report presents the decision of the District Court, the arguments made to the Federal Circuit by the parties and how the Federal Circuit addressed these issues.

Pre- and Post-Judgment Review of Summary Judgment Denials After Ortiz v. Jordan — A Wider and Deeper Look

In Ortiz v. Jordan, 131 S.Ct. 884 (2011), the Supreme Court purported to resolve a split in the federal circuits over the circumstances under which federal appeals courts should review denials of summary judgment when the issue was raised on appeal after final judgment, after the party that was denied summary judgment also lost at trial. In fact, the Court actually decided the case on very narrow grounds, and never addressed the question that had most split the circuits: whether to embrace a legal-question exception to the general rule to refuse to entertain post-trial appeals from summary judgment denials.In this Article, I describe the pre-Ortiz circuit splits, analyze Ortiz, examine how the courts of appeals have handled the issue since Ortiz, and, in an effort to offer guidance to the federal courts of appeals and even the Supreme Court, address the issues with which the Supreme Court did not grapple in Ortiz, although it spoke to some of them in cursory fashion.By way of background, I describe the limited immediate appeal-ability of summary judgment denials and argue why interlocutory appeals of summary judgment denials should not be made more freely available to reduce the occasions for post-judgment review. I further argue that when pre-judgment appeals of denials of summary judgment are available, those appeals both are and should be permissive, rather than mandatory. More importantly, I argue that when interlocutory appeals of summary judgment denials are not available, and when they are available but are permissive and not taken (so that the issue of the correctness of those denials will be appealed, if at all, only after final judgment) post-trial, post-judgment appeals of the denials should be allowed when the denials were based on conclusions of law, rather than on conclusions that genuine issues of material fact existed. In so arguing, I disagree with the position taken in dicta by the Supreme Court in Ortiz.I offer several predicates for this conclusion in the Article. Among other things, appellants do not have adequate alternative remedies. Rule 50 motions are appropriate only for questions of the sufficiency of the evidence, and not for the kinds of legal questions that may be posed by motions for summary judgment. Moreover, law of the case principles and policies that govern the preservation of error for appeal argue against requiring Rule 50 motions as a prerequisite to appeal of summary judgment denials that were based on conclusions of law. Finally, summary judgment denials based on errors of law should be appeal-able after final judgment, in the interests of justice.In conclusion, I propose that, after final judgment, including after final judgment that follows a jury trial, denials of summary judgment that were predicated on legal holdings (and not on the existence of genuine issues of material fact) should be appeal-able as part of the appeal from the final judgment, assuming that mootness doctrines having nothing to do with the mere fact of trial have not made the issue moot. In view of the inaptness of Rule 50 motions and the questionable need for any additional motion to preserve the alleged error in a denial of summary judgment that was based upon a holding of law, before barring such appeals, the courts should make clear what other actions or omissions in the trial court will warrant a holding that the appellant has waived or failed to preserve the error in denying summary judgment that he seeks to argue on appeal.

Brief of Professor Stephen E. Sachs as Amicus Curiae, Atlantic Marine Construction Co. v. U.S. District Court

[This brief was filed in support of neither party in No. 12-929 (U.S., cert. granted Apr. 1, 2013).]The parties in this case defend two sides of a many-sided circuit split. This brief argues that a third view is correct.If a contract requires suit in a particular forum, and the plaintiff sues somewhere else, how may the defendant raise the issue? Petitioner Atlantic Marine Construction Company suggests a motion under Federal Rule of Civil Procedure 12(b)(3) or 28 U.S.C. § 1406, on the theory that the contract renders venue improper. Respondent J-Crew Management, Inc. contends that venue remains proper, and that the defendant’s only remedy is a transfer motion under § 1404.Both sides are wrong. Forum-selection clauses have no effect on venue, which is defined by statute. While parties can waive their venue objections in advance, they cannot destroy proper venue by private agreement.At the same time, an exclusive forum-selection clause does more than just inform a court's discretion under § 1404. If the clause is valid and enforceable, it waives the plaintiff's right to sue in an excluded forum, offering the defendant an affirmative defense to liability in that forum and the right to have the suit dismissed.The Federal Rules already specify the correct method of raising this defense: it must be affirmatively stated in the answer, which the defendant may accompany with an immediate summary judgment motion. Often, as here, the parties' agreement will be incorporated in the complaint. In that case, the defendant may alternatively raise the defense in a pre-answer Rule 12(b)(6) motion to dismiss, or a post-answer Rule 12(c) motion for judgment on the pleadings.The Rules' default procedures are practical as well as correct. They enable defendants to obtain quick and decisive enforcement of their forum-selection clauses, through the same procedures used to enforce binding prior judgments, settlements, or arbitral awards. And while there may be some practical advantages to treating forum-selection clauses as if they affected venue, these advantages have been greatly exaggerated -- and, in any case, provide no reason to misapply the Federal Rules.Here, the parties agreed that their disputes shall be litigated in state or federal court in Norfolk, Va. J-Crew violated that agreement by suing in the Western District of Texas. Assuming, as the Court should, that the clause at issue is valid and enforceable, the complaint could have been dismissed by motion under Rule 12(b)(6). Instead, Atlantic Marine made this forum-selection defense under the label of Rule 12(b)(3). That may have been good enough to raise the issue, but the Court should leave such preservation questions to the court of appeals in the first instance. Because that court (and the district court) proceeded on the erroneous assumption that § 1404 was the only available remedy, this Court should identify the correct procedure, vacate the judgment, and remand the case for further proceedings.[With Jeffrey S. Bucholtz and Daniel S. Epps.]

Case Note: Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co

I. Background to the CaseOn March 29, 2011, the United States (US) Court of Appeals for the Ninth Circuit (the Ninth Circuit Court) affirmed the judgment of the United States District Court for the Central District of California (the District Court) in the case of Hubei Gezhouba Sanlian Indus Co v Robinson Helicopter Co1 That decision recognised the judgment of the High People's Court of Hubei Province of China (the Hubei High Court) in favour of Hubei Gezhouba Sanlian Indus Co (Sanlian) and Hubei Pinghu Cruise Co, Ltd (Pinghu) against Robinson Helicopter Co (Robinson), a Californian corporation.The case resulted from a helicopter accident in 1994 in which three people died and multiple damages occurred. The helicopter was manufactured by Robinson, owned by Sanlian and operated by Pinghu. In March 1995, Sanlian and Pinghu sued Robinson in the Los Angeles Superior Court for damages based on theories of negligence, strict liability and breach of implied warranty. On November 8, 1995, the action in the Los Angeles Superior Court was stayed in favour of a Chinese forum subject to forum non conveniens (FNC). Robinson agreed to submit to the jurisdiction of the appropriate court in China, to toll the statute of limitations during the pendency of the California State action, and to abide by any final judgment rendered in China.After the case was first stayed on FNC grounds, the plaintiffs' action in the Hubei High Court was dismissed in December 1995 on the grounds that the purchase agreement for the helicopter contained a provision requiring arbitration. Then Sanlian and Pinghu filed a motion to have the stay lifted on the grounds of no tribunal available in China. After several motions and appeals, the Los Angeles Superior Court finally ruled the stay remains in effect on 27 January 1998. Then Sanlian and Pinghu had to initiate arbitration proceedings against Robinson in the International Court of Arbitration of the International Chamber of Commerce (ICC). In 2000, the arbitral tribunal ruled that it lacked jurisdiction because no valid arbitration agreement existed between the two Chinese companies and Robinson. Subsequently, the plaintiffs re-filed an action in the Hubei High Court in 2001. In 2004, that Court issued a default judgment in favour of the plaintiffs. In 2006, Sanlian and Pinghu filed their complaint against Robinson in the District Court requesting enforcement of the Chinese judgment.In 2007, the District Court denied the plaintiffs' motion for summary judgment and granted a summary judgment in favour of Robinson on the grounds that the statute of limitations had expired before the Chinese lawsuit was filed. That decision was denied by the Ninth Circuit Court in 2008. The case was reversed and remanded. In 2009, the District Court issued a judgment in favor of the plaintiffs (the 2009 judgment).2 The defendant Robinson appealed to the Ninth Circuit Court. In 2011, The Ninth Circuit Court affirmed the judgment of the District Court (the 2011 judgment).II. Main Issues in SanlianThe case had undergone some complicated arbitration and litigation proceedings. In recognition and enforcement of the Chinese judgment, the District Court in the 2009 judgment mainly addressed four issues: (i) the statute of limitations; (ii) service of process; (iii) finality, conclusiveness and enforceability of the Chinese judgment; and (iv) non-recognition grounds in California's Uniform Foreign- Money Judgments Recognition Act (UFMJRA).3The first issue was the statute of limitation. Robinson argued that it agreed to toll the statute of limitations for the period beginning on the date that the plaintiffs filed their complaint in the California State court action, and ending on the date that the California State court action was finally dismissed. The District Court firstly granted Summary Judgment in favour of defendant on the grounds that the statute of limitations had expired before the Chinese lawsuit was filed. …

The Many Lanes Out of Court: Against Privatization of Employment Discrimination Disputes

Despite employment gains made by women, older Americans, and racial and religious minorities, employment discrimination remains a persistent problem in the American workplace. Scholars have lamented that employment discrimination laws have not proven effective in eliminating the many vestiges of discrimination that still linger. Many scholars blame the lackluster enforcement of employment discrimination laws on the federal courts’ inability to understand or theorize about the lingering aspects of discrimination based on race and sex that still pervade the modern workplace as well as judicial hostility to employment discrimination claims. Recent data suggest that this has led some employment discrimination claimants to abandon the federal court system. This article argues that, rather than eschewing the federal courts, employment discrimination plaintiffs should bring their cases in the federal courts, preferably before juries. This article charts the multi-laned manner in which the federal courts have essentially gotten out of the employment discrimination business. In a series of cases, the Supreme Court of the United States has opened the door to alternative forms of dispute resolution. Whether it be through a robust pro-arbitration jurisprudence, an uncalled-for reliance on employer internal grievance mechanisms, or aggressive settlement conferences, courts are shunting employment discrimination cases out of the court system and into the sphere of private dispute resolution. This is not only coming from the courts. Even the federal agency tasked with enforcing these laws – the Equal Employment Opportunity Commission – is finding means other than court cases for addressing these claims. In addition, lower courts have used invigorated civil procedure rules, including summary judgment motions and motions to dismiss, as an effective tool to clear their dockets, leaving plaintiffs with no relief at all. Yet, there is no way to know whether alternative dispute resolution systems, such as arbitration, mediation, settlement, or internal employer grievance mechanisms, are actually providing justice to workers. Most of these alternative dispute resolution systems fly under the radar – “in the shadow of the law,” as commentators suggest. In addition, they do not alert either employers or employees to what is and is not acceptable workplace behavior. Most importantly, these alternative schemes provide no support for the norm-enforcing scheme that is the American legal system. This article, in the tradition of Professor Owen Fiss’s Against Settlement, looks at the potential effects of employment discrimination laws being enforced – if at all – through private dispute resolution mechanisms. Anti-discrimination laws serve a vital public purpose – they set norms of behavior for workplaces and workers in the area of equal employment opportunity. This article argues that case law in this area is important for setting norms of appropriate workplace behavior and practices as well as setting monetary values for the harm employment discrimination causes its victims. Thus, there is cause for concern when alternative dispute resolution supplants jury trials in this area of the law.

The Twenty-Fifth Anniversary of the Supreme Court's Summary Judgment Trilogy: Much Ado about Very Little

The twenty-fifth anniversary of the Supreme Court’s famous summary judgment trilogy in 1986 offers an opportunity to assess the impact of this trilogy on federal practice. This study sets out to answer a few relatively simple questions: are federal courts doing anything more than citing Celotex as the leading Rule 56 precedent, and if so, are they indeed following the analytical burden-shifting framework so carefully and elaborately set out by Justices Rehnquist and Brennan? A sub-textual inquiry was: do federal judges understand Celotex, any more than our largely confused and confounded first year law students? In addition, this study also researched the extent to which the trilogy’s second leg ― Anderson v. Liberty Lobby, Inc. ― has resulted in numerous trial-by-affidavit nightmares suggested by Justice Brennan in his dissent. The results of this study seem to suggest that in a surprising number of summary judgment cases, federal courts don’t even cite Celotex. If this were not shocking enough, in the remaining universe of decisions where courts do cite Celotex, some federal judges do not seem to acknowledge, understand, or apply the elaborate Celotex conceptual framework. The data also seem to suggest that in at least many cases, federal judges ― as they did pre-Celotex ― continue to decide summary judgment motions on a kind-of gestalt “tennis match” mode of analysis. The various FJC studies of post-trilogy summary judgment practice have demonstrated that the disposition rates (that is, favorable grants of summary judgment motions) have not increased in statistically significant ways in the aftermath of the trilogy. Along with the FJC studies, this very modest study further suggests that the trilogy’s central Celotex decision likewise has had small impact on the ways in which judges analyze and decide summary judgment motions. In addition, the Anderson decision’s core evidentiary holding has been replicated in exactly three other somewhat anomalous contexts, in the past 25 years ― clearly averting any substantial judicial crisis. Surveying these realities, it is difficult not to conclude that the Court’s summary judgment trilogy, along with its attendant hype, has been much ado about very little. Against this backdrop, practitioners who must file summary judgment motions may take some comfort in realizing that in most instances in federal court, at least, the lawyers need not overly fret over shifting burdens of production, persuasion, and proof, so long as the attorneys proffer something in the record for a judge to consider (except in those outlying federal courts that have chosen to dun attorneys who do not point to the specific evidence). And while some erudite judges on the federal bench may justifiably take pride in wending their way through a recitation and application of the Celotex standards, judges also may take comfort in knowing that they also largely will not be dunned by appellate courts for failure to recite or properly apply Celotex.

In Unity There is Strength: The Advantages (and Disadvantages) of Joint Defense Groups

We must indeed all hang together, or, most assuredly, we shall all hang separately. --Benjamin Franklin, at the signing of the Declaration of Independence IT IS NOT unusual today for counsel to be involved in cases with multiple defendants or in multiple cases involving the same defendant. In those types of cases it is often advantageous to work with counsel for the other defendants to prepare and present a joint defense to the pending claims. The best way to do so is to form a joint defense group. This article discusses the advantages associated with forming a joint defense group and the topics to be addressed in a joint defense agreement, identifies possible risks associated with creating a joint defense group, and discusses issues regarding preservation of the joint defense privilege. I. Why Form a Joint Defense Group? There are several advantages to forming a joint defense group. Joint defense groups enable each defendant to substantially reduce the costs associated with its defense. These cost savings come in two forms. One is sharing the work: dividing legal research, splitting up the depositions, retaining expert witnesses, contributing paralegals for intensive reviews. (1) Joint defense groups can also provide huge savings in expensive out of pocket costs. These include the costs of experts, consultants and court reporters. One of the largest costs incurred in big document cases is the cost associated with the creation of a computerized database to handle all the documents. Belonging to a joint defense group allows all defendants to share the sometimes enormous costs associated with creating and utilizing such databases. (2) Saving money is not the only benefit to be gained from belonging to a joint defense group. There is also the benefit derived from combining the expertise, knowledge and skills of the attorneys in the group. Some of the lawyers may have specialized knowledge about the substantive law at issue. Others may have experience dealing with the particular industry or business involved. Taken collectively, the joint defense group has deeper knowledge and more expertise than any single defendant's lawyer. (3) A third benefit of joint defense groups is the ability to coordinate strategy and tactics. Joint defense groups permit each attorney to fill knowledge gaps in the defense case and minimize the waste of judicial time that results from the presentation of uncoordinated defenses. A joint defense group enables the defendants to speak with one voice, thereby staying on message and avoiding (or reducing) conflict on their side of the case. A joint defense group can also help to ensure that one member's strategy doesn't work at cross-purposes with another's. (4) There are also drawbacks to participating in a joint defense group--conflicts that are inherent in the very nature of a joint defense effort. Major defendants in the case want to control the defense, in order to protect their large stake in the case. As a result, major defendants often do most of the group's work. Because they have more to lose, major defendants typically invest considerable time and effort in carefully establishing each possible defense and every basis for each defense. This can be extremely expensive, but for a major defendant the cost of a first class defense often pales in comparison to the potential liability it faces. (5) Minor defendants have a lesser stake in the litigation. Given their smaller risk of exposure, minor defendants sometimes balk at incurring the costs associated with the gold standard defense the major defendants insist upon. This conflict can easily create dissension within the group and threaten the major defendants' control of the group. (6) Major and minor defendants also frequently disagree on strategy issues. A minor defendant may want to file an early summary judgment motion which has the potential of eliminating a minor defendant from the case before it gets too expensive, while major defendants may be more interested in having the issue decided later in the case, after discovery has been completed and the record is fully developed. …

US District Court explains the idea/expression dichotomy in videogames

The US District Court for the District of New Jersey granted the plaintiffs' motion for summary judgment and denied Xio's motion for summary judgment on a copyright infringement claim, finding that the defendant's 2009 puzzle videogame Mino had copied not just the rules and functionalities of well-known 1980s videogame Tetris, but also its overall look and feel.

Of Waves and Water: A Response to Comments on the FJC Study Motions to Dismiss for Failure to State a Claim after Iqbal

This paper responds to comments regarding the Federal Judicial Center’s recent studies of the resolution of motions to dismiss for failure to state a claim. Those studies, undertaken at the request of the Judicial Conference Advisory Committee on Civil Rules, found a statistically significant increase in the rate at which defendants file motions to dismiss following the Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. The studies also found no statistically significant increase in the rate of grants of motions to dismiss without leave to amend, except in cases involving challenges to financial instruments such as mortgages, and no statistically significant increase in cases terminated by such motions. Several scholars have expressed reservations regarding these findings and raised a number of specific issues regarding the research. This paper responds to the following issues:• Professor Hoffman’s concerns about our use of statistical analysis in general, and the use of multinomial statistical models in particular;• Professor Moore’s concerns about the exclusion from our study of pro se cases and cases asserting affirmative defenses, and the findings of her most recent study of the outcome of motions to dismiss;• Professor Brescia’s recent study finding an increase in grant rate of motions to dismiss in employment and housing discrimination cases; and • Professor Gelbach’s incorporation of our findings into an economic model of pretrial litigation that attempts to estimate the overall effect on settlement and access to discovery.I continue to believe that our findings represent the most accurate statement of the federal district courts’ response to these Supreme Court decisions, but acknowledge that this response has continued to evolve since we conducted our study. I propose a study of all dispositive motions that will, among other things, examine the interaction between motions to dismiss for failure to state a claim and motions for summary judgment.

Contested Elections as Secret Weapon: Legislative Control Over Judicial Decisionmaking

The current interbranch tensions in the federal government have been just as potent, if not more so, at the state level. Legislative challenges to state judiciaries are accumulating nationwide. In one state, Tennessee, the newly-elected Republican majority in the General Assembly has flexed its legislative muscle in several ways, ranging from the outright hostile – threatening the imposition of contested elections for the state’s appellate judges and a takeover of the body that governs judicial conduct – to the more sublime. A less-publicized, but no less significant, step that the legislature took in 2011 was to overrule a recent decision of the Tennessee Supreme Court, Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008), which had explicitly rejected the federal Celotex standard for burden-shifting on a motion for summary judgment. Hannan had simply reaffirmed a decade-old line of cases, but was characterized by the dissenting justice and, subsequently, by the defense bar, as a radical change in Tennessee law. Thus, it became a prime target of the business-oriented General Assembly. This article explores the role of summary judgment in the current showdown between the legislative and judicial branches in Tennessee. After briefly tracing the history of the Celotex standard in Tennessee, including the background underlying the Hannan decision, the article considers the constitutionality of the legislation in light of the explicit separation of powers provision in the Tennessee Constitution and cases interpreting it. It also examines whether the new law exceeds the General Assembly’s statutory rule-making powers. The article concludes by revisiting the larger context of the interbranch battle, most notably the legislature’s ongoing threat to institute contested judicial elections in lieu of the current “Tennessee Plan,” which calls for appointment by the Governor and “yes-no” retention elections rather than contested elections. Because the courts will eventually have to decide the constitutionality of the statute overruling Hannan, the threat of contested elections could be characterized as a weapon supporting the General Assembly’s move to usurp the judiciary’s traditional power to promulgate its own rules of practice and procedure.

A Modest Proposal for Securities Fraud Pleading after Tellabs

This article criticizes the Tellabs standard for scienter pleading under federal securities law on the ground that it weeds out too many non‐frivolous cases. The article proposes a procedure designed to rectify the problem. Under the tentative dismissal approach, a dismissal under Tellabs would not end the litigation if the plaintiff filed an objection to the decision. Instead, the plaintiff would be required to pay the defendant’s attorneys’ fees incurred between the judge’s ruling on the motion to dismiss and the resolution of a motion for summary judgment.

The 'Sophisticated Judge' Standard: A New Approach to Judicial Deception Under the Fair Debt Collection Practices Act

The goal of a plaintiff seeking a default judgment in a debt collection suit is to convince the judge that the alleged debt is valid and owed, and therefore there is nothing for the judge to do but enter a judgment in favor of the debt collector. Unfortunately, some debt collectors take it too far. A serious problem arises when questionable tactics are used; in particular, the submission of misleading and deceptive documents in an effort to deceive the court. Although the Fair Debt Collection Practices Act (FDCPA) is meant to protect consumers from deceptive practices of debt collectors, the Seventh Circuit has recently held that the FDCPA does not extend to communications directed at judges. This article examines the background of the FDCPA and its application in the Seventh Circuit's recent decision in O'Rourke v. Palisades Acquisition XVI. It will argue that, contrary to the majority‘s holding in O'Rourke, Section 1692e of the FDCPA should cover communications provided to a judge. The article explains the necessity of a new alternative, the 'sophisticated judge' standard, to cover these types of misleading and deceptive representations. Finally, the article proposes that the 'sophisticated judge' standard could allow judges hearing FDCPA suits to view the issue of deception as a question of law, rather than a question of fact - thus, extrinsic evidence would not be needed to overcome a defendant‘s motion for summary judgment.

U.S. Supreme Court Amicus Brief of Civil Procedure Professors in Support of Respondents, Wal-Mart Stores, Inc. v. Dukes, No. 10-277

The class action device is essential to a well-functioning system of justice because of its ability to balance the values of access to the courts and efficient adjudication of disputes. This was the vision of the drafters of Federal Rule of Civil Procedure 23. This Court can and should interpret Rule 23's text in a way that vindicates these overarching goals.Particularly in an adjudicative class action, the certification motion needs to be understood as a preliminary step that is complimented by motions to dismiss and summary judgment motions. The aim of class certification is not to screen out suits that fail even to allege a claim for relief (that is for motions to dismiss), nor to issue dispositive rulings on the merits (that is the purpose of summary judgment or trial). Instead, it is to determine whether the purposes of the class action rule would be served by proceeding with a collective litigation.The district court case did not abuse its discretion in concluding that the proposed class met the requirements of Rule 23(a). In fact, the court’s attention to the detailed pleadings and the extensive evidence gathered by the parties in assessing whether the named plaintiffs’ claims shared common questions of law or fact with claims of absent class members showed a level of rigorous evaluation that went beyond the 23(a) threshold. Classification of the class under 23(b)(2) was also appropriate under the Federal Rules. Petitioner’s contrary arguments ignore the text, purpose and history of Rule 23.

The 'C Word,' the 'B Word,' and the 'W Word': Can Derogatory Terms Traditionally Used for Females Form the Basis of Actionable Sexual Harassment When Directed toward Males but Overheard by Females? Must They Be Directed toward Claimant?

In January 2010, an en banc 11th Circuit court held that a female employee who was surrounded by persistent and graphic sexual speech and derogatory term usage in the workplace, but not directed toward her and who lost no tangible job benefits, nonetheless provided a basis to resist a summary judgment motion. The court compared the situation to one of an African American being subjected to derogatory racial terms in the workplace. But is the comparison an apt one?

'Abstract idea' exception to patent-eligible subject matter clarified

'Abstract idea' exception to patent-eligible subject matter clarified

Brief of Washington Legal Foundation and Constitutional Law Scholars as Amici Curiae in Support of Plaintiff's Motion for Summary Judgment, Commonwealth of Virginia v. Kathleen Sebelius (Civil Action No. 3:10-cv-188-HEH)

Brief of Washington Legal Foundation and Constitutional Law Scholars as <i>Amici Curiae</i> in Support of Plaintiff's Motion for Summary Judgment, <i>Commonwealth of Virginia v. Kathleen Sebelius</i> (Civil Action No. 3:10-cv-188-HEH)

Introducing new evidence in patent appeals from USPTO

Introducing new evidence in patent appeals from USPTO

District Court Amicus Brief of Law Professors in Support of Defendants, Associated Oregon Industries v. Avakian, No. 3:09-CV-1494-MO

Amici curiae law professors filed this brief to urge the United States District Court for the District of Oregon to deny Plaintiffs' summary judgment motion. That motion argues that SB 519, Oregon state legislation that prohibits employers from firing workers who refuse to attend captive audience meetings about the employer's political, religious, or union views, is invalid as preempted by the National Labor Relations Act (NLRA) and inconsistent with the First Amendment of the federal Constitution. This brief argues that a finding of NLRA preemption in this case would be both inconsistent with Congress’ purposes in enacting the NLRA and with principles of federalism which give the states and federal government shared authority over the employment relationship. Traditional areas of state concern are within the states' power to regulate and, therefore, not within the scope of NLRA preemption. There are two sources of applicable authority here: (1) the state can place property restrictions on the bundle of property rights that the state grants to its property owners and (2) the state can provide for minimum conditions in the workplace under its police powers. Employers in Oregon are still able to communicate their views about unionization with their employees as Section 8(c) of the NLRA contemplates, but are forbidden from engaging in conduct that forces these same employees to listen to such presentations on pain of losing their jobs or other benefits of employment. The right to speech simply does not include the right to compel someone to listen. Not under the First Amendment and certainly not under statutory law. In short, amici law professors maintain that the Court should find that Oregon had the inherent power to enact SB 519 and such promulgation is consistent with the reach and purposes of the NLRA and with principles of federalism.

Instructional Materials and ‘Works Made for Hire’ at Universities: Policies and Strategic Management of Copyright Ownership

Under the copyright doctrine of “works made for hire,” the author and copyright owner of the work is the employer of the person who created it. In the context of many instructional materials and scholarly publications created by faculty authors, however, placing all rights with one party, whether with the university or with the creator through transfer, can be problematic and detrimental to the goals of higher education. In determining whether the doctrine applies, courts look to details of the situation and whether the work performed is “within the scope of employment.” Recent court cases suggest that the doctrine likely applies broadly, and recent developments in the law weaken arguments for a “teacher’s exception” to the work-made-for-hire doctrine.Even if a work is deemed to be “for hire,” the copyright statutes include two important opportunities to change that result. First, the university could simply transfer the copyright back to the faculty member. Second, through a provision of the work-made-for-hire statute, the creator of the work and the employer may agree to reallocate the rights between themselves. Either way, the work remains a work made for hire, and other attributes of a work for hire remain applicable. In order to avoid some of the adverse consequences of works for hire, a copyright owner may choose unbundle rights by transferring or licensing only some rights of ownership, relieving tension and conflicts surrounding claims of ownership. Many colleges and universities have routinely opted for general policy statements that articulate copyright ownership principles. Recent cases, however, indicate that general copyright policies in the context of works made for hire may not satisfy statutory requirements for copyright transfers. Thus, educational institutions and individuals can effectively manage their copyrights, but only by properly attending to the requirements of the law.A court ruling since publication of this work has raised the possibility, in consideration of a motion for summary judgment, that a general university policy allowing faculty ownership of instructional materials may be enforceable. See Bosch v. Ball-Kell, 206 WL 2548053 (C.D. Ill. 2006).