Here is a link to Judge Judith Fabricant’s recent decision in Stein v. Clinical Data (reported on the front page of the November 30, 2009 Mass Lawyer’s Weekly), where she found that the plaintiff had destroyed evidence. Judge Fabricant sanctioned the plaintiff in this case by dismissing his case and ordering him to pay almost a quarter of a million dollars in attorney’s fees and costs to the defendant. These cases are relatively rare (since the party who destroys evidence rarely is caught), but the consequences to the party who engages in this kind of conduct can be devastating.
Everything we have done or planned to do with AltLaw, Google has does better. What else would you expect? Search is their core business; they have hundreds of brilliant engineers, a vast computing infrastructure, and billions of dollars invested in it. . . .
Therefore, we are happy to announce that Project AltLaw (Phase One) is complete. We will continue to maintain the web site and search service for a few months, but we will not be adding new features or new content. AltLaw.org, in its current form, will shut down in early 2010.
CAFC Chief Judge Paul Michel doesn’t pull punches when he states his views on problems with the U.S. patent system and the federal courts more generally, and he didn’t pull too many when he announced his upcoming retirement from the CAFC on on November 20, 2009. A few notable quotes from his speech:
On interlocutory appeals of claim construction rulings to the CAFC: A provision in a Senate patent reform bill would allow interlocutory appeals of Markman rulings. Predictably, Judge Michel doesn’t like the idea. He states that interlocutory appeals would double or triple the case load on the CAFC, and the court “can’t handle it.”
The median time to adjudicate a patent case before the CAFC? One year “from filing, to the opinion going up on the Internet.” Interlocutory appeals would double this to two years.
And, interlocutory appeals are unnecessary as a practical matter, he argues. Some interesting statistics from Judge Michel: “About 3,000 [patent cases] are filed a year, about 2,700 settled spontaneously. Of the remaining 300, about 200 are resolved on summary judgment, almost always based on claim construction. . . . The remaining 100 go to trial. . . . there almost are never second trials. There usually aren’t even first trials.”
On Upcoming Retirements from the CAFC: The CAFC has 11 active judges and five senior judges. . . . [t]he . . . little secret here is there are five other judges of our active 11 who could retire tomorrow, or take senior status. . . . [p]otentially five other seats at any time could become vacant. A year hence . . . two more will be eligible for that conversion of status. So there could be seven more vacancies within a year of tonight.”
On Diversity: “We don’t have and have never had an African-American judge on our Court. Nor do we have an Asian-American heritage judge on our Court. We do have three women out of 16, but three women out of 16 is less than a quarter — it’s half the population.”
As I’ve noted before, Massachusetts U.S. District Judge Patti Saris has been mentioned as a strong candidate for a CAFC seat.
And of course:
Earlier today, I sent a letter to the President informing him of my intention to retire from active judicial service, effective May 31, 2010. . . . I had always imagined I would stay a senior judge until I was carried out of the courthouse in a pine box. But I’ve come to a different conclusion, because I see a huge need for someone to be able to speak out on behalf of the court system generally — of the judges, the lawyers, and the litigants.
… says Professor Eric Goldman, in his apologetically belated comments on Harris v. Blockbuster Inc., (N.D. Tex. April 15, 2009). I discussed this case briefly in April, shortly after the decision was published. To reprise, the court held that an arbitration clause in Blockbuster’s online t’s and c’s was unenforceable because Blockbuster was permitted to unilaterally amend the contract without notice.
Prof. Goldman’s take on it (in addition to the title of this post), is –
This language has a significant risk of killing the entire contract, which would strip away a lot of very important provisions that should be/need to be in the contract. So far Blockbuster has only lost its mandatory arbitration clause, but it’s possible other important risk management clauses (warranty disclaimer, liability limits, dollar caps, etc.) will similarly fall. If those clauses fail, let the plaintiff feasting begin!
Although I don’t have any great practice-oriented recommendations based on this opinion, I do hope this opinion will help contribute to the demise of the “check back frequently for amendments” provisions in online user agreements. I’ve always considered those among the worst excesses of the dot com era.
Surely, Google doesn’t want to go through what so many dominant companies in the U.S. have had to suffer – government antitrust scrutiny, in the form of merger/joint venture challenges and even, God forbid, a Microsoft-like monopolization suit. For better or worse, intensive antitrust scrutiny is the price of success in the U.S., and while it can’t be avoided altogether, perhaps it can be minimized. Or so Google hopes.
To that end, Google has made available a webinar entitled “Google, Competition and Openness.” Consumerwatchdog.org is not buying it, and their “anonymous mark-up” of the document (giving it a grade of “F”), is embedded from Scribd.com, below.
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