Legal Docket - Judicial decorum and a dispute over snaps

NICK EICHER, HOST: It’s Monday morning and another work week for The World and Everything in It. Today is the 10th of February, 2020. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And good morning to you. I’m Mary Reichard. It’s time for Legal Docket.

Now that the impeachment trial is over and President Trump has been acquitted, it seems the appropriate moment for an appreciation of the Chief Justice of the Supreme Court, John Roberts.

He said at the close of that trying and I would say tedious time that his role was “ill-defined” as presiding officer. Even more so, given the many attempts to draw him into a magnified role and embroil him in political maneuvers. 

He wasn’t taking the bait, and as an observer of the judicial branch of government, I really appreciated that.

EICHER: Yes, I noticed he worked hard even to keep his facial expressions neutral for the most part. As in this exchange with Senate Minority Leader Chuck Schumer, who seemed to be laying the groundwork in case the Senate deadlocked 50-50 on impeaching the president.

SCHUMER: Is the Chief Justice aware that in the impeachment trial of President Johnson, Chief Justice Chase, as presiding officer, cast tie-breaking votes on both March 31st and April 2nd, 1868?

ROBERTS: I am, Mr. Leader. The one concerned a motion to adjourn. The other concerned a motion to close deliberations. I do not regard those isolated episodes, 150 years ago, as sufficient to support a general authority to break ties. If the members of this body, elected by the people and accountable to them, divide equally on a motion, the normal rule is that the motion fails. I think that it would be inappropriate for me, an unelected official from a different branch of government to assert the power to change that result so that the motion would succeed.

REICHARD: So much to appreciate about this! 

Good judging skills on display. 

First, the question leaves out a lot of context. Someone just hearing that history could assume the chief justice in 1868 broke ties for any and all matters. But Roberts is clearly prepared and he doesn’t fall for it. 

He directly states the facts of that time, distinguishes them from the present, and then explains the principle of separation of powers—all in 38 seconds.

EICHER: That was a poignant moment.

Another moment that caught my attention was when Sen. Elizabeth Warren sent up a written question for the Chief Justice to read out loud:

ROBERTS: Question from Senator Warren is for the House Managers. At a time when large majorities of Americans have lost faith in government, does the fact that the Chief Justice is presiding over an impeachment trial, in which Republican Senators have thus far refused to allow witnesses or evidence, contribute to the loss of legitimacy of the Chief Justice, the Supreme Court, and the Constitution?

REICHARD: I confess my mouth fell open when I heard that. He read it without flinching even though many heard it as an undisguised attempt to goad the chief.

EICHER: I went back to watch that moment again, and you mentioned the 38 second summary, I counted a full five seconds where he lifted his head and just stared.

REICHARD: Here’s what struck me about all this: here we had the three branches of our federal government represented in one room. The legislative branch, a political branch, at times seeking to politicize the one branch, the judiciary, that’s designed to be insulated from politics. Then you had the executive branch asserting its privileges and powers, and the legislative, despite the faults I pointed out, working as designed. 

It struck me anew how brilliant the founders were in structuring our government with separation of powers as the central feature.

And, again, I so appreciated the chief justice as a model of separation of powers. He stayed cool. As he put it at the end of proceedings last week, he “attempted to carry out ill-defined responsibilities.”

EICHER: All right, well, let’s move on to the better-defined responsibilities of the chief: oral arguments in two of the high court’s cases.

REICHARD: Right, our first case involves Fossil, Inc, a company that makes accessories: things like watches, jewelry, and handbags.

Fossil, Inc has been in litigation with another company called Romag. It makes all sorts of fasteners: things like magnetic snaps, clasps, and closures you see in lots of purses.

Romag says Fossil used counterfeit snaps that look like Romag snaps, but aren’t. Like any responsible company, Romag had patent protection for its products. So Romag sued for patent infringement and won.

EICHER: A jury awarded money damages to Romag in two parts. Fossil doesn’t contest one part, but another part it does contest. And it’s for a lot of money: more than $6.5 million. The size of the award is calculated to deter Fossil from ever doing that again.

And here’s the hitch. The jury found Fossil acted with reckless disregard in its counterfeiting operation. But to get that big damage award in the court jurisdiction where this case arose, that’s not good enough. The jury had to find that Fossil acted willfully, and that’s a higher bar than reckless disregard.

So, the judge tossed out that big dollar award, and Romag appealed.

REICHARD: You can hear which way the justices leaned in this comment from Justice Brett Kavanaugh to Fossil’s lawyer, Neal Katyal:

KAVANAUGH: What would be the policy objective achieved by excluding reckless infringement? 

KATYAL: So we do think they are there, but we think Congress used this phrase and your job is to interpret the phrase.

KAVANAUGH: I agree.

KATYAL: But the policy objectives I think are incredibly strong.

Justice Kavanaugh wanted a rationale for such a policy to help him interpret the phrase, but no convincing rationale came.

And Justice Sonia Sotomayor, who seems to have a respiratory illness here, pointed out something else to Katyal.

SOTOMAYOR: …the term “willfulness” over the centuries has been differently defined by different people. Some people have included recklessness. 
Others haven’t. …Given the uncertainty of what willfulness means, the fact that there were exceptions to the common law rule…how do we write an opinion that says you need willfulness—willfulness being just conscious avoidance, not recklessness, not callous disregard, not this, not that?

An important side note here is that the bulk of Fossil’s manufacturing happens in China. Romag’s brief points out the huge problem of Chinese counterfeiting of American goods. 

So Romag’s lawyer Lisa Blatt argued that a judgment against her client will set a bad precedent for many American businesses. If Romag and others have to prove willful infringement instead of just the fact of infringement, the costs could be prohibitive. It’s expensive to monitor this sort of cheating and to build up a case that it is willful and not some easier-to-prove standard, like negligent or reckless.

Justice Elena Kagan looked for some middle path:

KAGAN: Do you think it’s open to us, Ms. Blatt, to pick a position some place between you and Mr. Katyal? In other words, Mr. Katyal says, never under any circumstances can you get profits without willfulness and you say, well, willfulness is just one factor among the 
things that you think about. 


Now, this gets a little bit into the weeds of patent law, but one wrinkle is that Fossil and Romag aren’t direct competitors. One makes purses, the other makes a component of purses. 

This case would be easier if they were direct competitors, because the law is clear and the circuits aren’t split on the issue. 

The justices seemed to favor Romag in their questions. My guess is Fossil, Inc will have to pay up and more closely monitor its own operations.

The last case today does involve direct competitors. 

One is Lucky Brand Dungarees, Inc., maker of denim jeans and other wearables.

The other side is Marcel Fashions Group, Inc. It also makes apparel and holds a registered trademark on the slogan, “Get Lucky.”

And that’s the crux of a 20-year dispute with three separate lawsuits. Lucky Brand admitted to infringing Marcel’s trademark along the way, using “Get Lucky” in its advertisements. Eventually the two parties settled, Lucky Brand paid Marcel some damages, and promised to stop using  the “Get Lucky” slogan. Marcel agreed to release other claims to end the dispute.

The problem is that settlement didn’t anticipate problems to come. So the legal question now is over the scope of the claims Marcel released. Lucky Brand argues those claims are over and done with and Marcel says they aren’t.

This is a highly technical case that will govern legal procedure. What the parties are arguing over is the scope of res judicata, the Latin term for “a matter already judged.” You also hear the concept referred to as preclusion, meaning that a party is precluded from pursuing an issue or claim again. And the question will get to whether res judicata includes not just claims but defenses.

But let’s close with a peek into Justice Stephen Breyer’s thought process in sorting out what this case is about. He mentions his civil procedure professor at Harvard Law School, the late Albert Sacks.

BREYER: I don’t understand what our—we’re supposed to decide. I thought that we took this case because, assuming that the law is what it seems to have always been, that, where A sues B, and the suit’s over. Then A sues B again for identical conduct which took place after the suit was over. I thought in 1961, in Al Sacks’ procedure class—and things may have changed—(Laughter)—that I learned that the second suit is a new suit and therefore people can raise claims.

GINSBURG: There’s no issue preclusion.

BREYER: Is that right? What? I mean, I thought Justice Ginsburg said exactly that. And she said that and it took her about a minute and it took Al Sacks, I think, about an hour, because—(Laughter). 
But—but there we are. 
And you started by saying that, so I thought, well, I agree with that. But I thought the case was about the Second Circuit trying to have a new rule.

This made me smile, because first-year civil procedure is, shall I say, memorable, and it seems that no lawyer forgets who taught it in law school! Justice Breyer didn’t forget, either, and that was 59 years ago.

While I’m appreciating the justices today, I’ll say that one thing I appreciate about Justice Breyer is his frankness and willingness to clarify what is confusing to him to achieve clarity in the end. And that’s what the justices are tasked with in both of these cases: resolve the disagreements about the law among the various judicial circuits. 

The lesson in this case for the rest of us is to be meticulous when writing up releases for future claims.

And that’s this week’s Legal Docket!

(AP Photo/Mark Tenally) The United States Supreme Court is seen in this general view, Monday, Jan. 27, 2020, in Washington, DC. 

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