Remembering My High School Law Teacher, Walter “Wally” Lubelczyk (1951-2017)

Posted on December 28, 2017 by Steven Callahan

I learned about a month ago that my high school law teacher, Walter Lubelczyk, passed away at the young age of 66 after a courageous battle with a stroke. Mr. Lubelczyk taught high school constitutional law to thousands of students in Manchester, New Hampshire over the course of his 37-year career at Manchester High School West. I spent 20 years of my life in school. Mr. Lubelczyk was by far my favorite teacher. He was the Mr. Holland of West High School.

I know he was also many of my classmates and contemporaries’ favorite teacher, including Seth Meyers, who spent five minutes on his Late Night show remembering Mr. Lubelczyk. As Seth noted, a great deal of Mr. Lubelczyk’s students, including myself, went on to become attorneys. Mr. Lubelczyk instilled in me a love of the law and, after I finished his class, I knew I would become an attorney. There’s an old saying that, if you love what you do for a job, you’ll never work another day in your life. And, in large part because of Mr. Lubelczyk, I can honestly say that I’ve never worked a day in my life.

Mr. Lubelczyk taught a “case based” law class where students learned the law by actually trying cases each week. About two days each week, the class conducted trials where teams tried cases against each other. So, for example, we’d try the flag burning case (Texas v. Johnson), where one team would represent Texas and the other Johnson (the flag burner). One member of each team gave an opening argument, others acted as witnesses (the flag burner and the police officer who arrested him), and there’d be direct examinations, cross examinations and closing arguments. A student acted as a judge and ruled in favor of one side or the other, and articulated the judge’s reasoning. And then, inevitably, the losing side would shout “jury nullification” which sent the final decision to all of the students in the class who voted for a side by a show of hands, with the most-hands side declared the winner. Mr. Lubelczyk, sitting on a table at the side of the classroom (he gave up his comfortable desk chair for the student judge) acted as the “super judge” and all around master of ceremonies by, e.g., ruling on objections, making sure cases moved along in a timely manner, and otherwise providing guidance and wisdom. The next day, Mr. Lubelczyk told the class how the Supreme Court actually decided the case. He taught the class with humor, dignity, and a sense of seriousness and high purpose. And that’s how we all learned the law.

I’ve never been in a class, in high school, college, or law school, where the students were so passionate about the class, their roles, and learning the subject matter. It was truly magical. Our respect for Mr. Lubelczyk was so great that there was not one word uttered throughout the year by anyone in the class about anything other than the law. There was no gossip, no talking about other classes or other things, etc.—when we stepped into his class, everyone focused solely on the law. I’ve never seen anything like it and it is a true testament to his passion and the respect given to him by his students.

For many of us, Mr. Lubelcyzk’s class was synonymous with senior year in high school. He somehow managed to make every student, not matter how interested (or uninterested) in law at the beginning of the year, become passionate about the law by year’s end. And on those days where a particular team had a member absent, Mr. Lubelczyk would “pinch hit” for that team by becoming a member of the team—I cannot remember him ever stepping into a case and losing. I’ve dealt with a lot of attorneys over the last fifteen years—Mr. Lubelcyzk, although not formally an attorney, was better than 99% of the ones I’ve come across, myself included.

Back in 1996-1997, I learned more about the practice of law—the actual practice of law, including giving opening and closing statements, performing direct and cross examinations, and working as a member of a team to put on a case—in Mr. Lubelczyk’s class than at my two law schools and at some of the leading law firms in the United States combined. Ask me to choose between a random senior in Mr. Lubelczyk’s law class and a random attorney licensed to practice law in the United States to try an actual case, and I’d pick Mr. Lubelczyk’s student every time.

Mr. Lubelczyk was universally loved by his students, including by myself, and I’m sad for his family, his loved ones, and his students that he is no longer with us on this Earth. I can only hope that he is smiling down upon us from above, and that’s he’s proud of us and what we’ve become.

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PTAB Rejects Sovereign Immunity Defense In View Of Pending Litigation Brought By Sovereign

Posted on December 28, 2017 by Steven Callahan

Proving that even a broken clock is right twice a day, the PTAB in Ericsson v. Regents of the University of Minnesota (decision available here), rejected Minnesota’s sovereign-immunity defense to PTAB proceedings instituted by Ericsson (note: my firm represents Ericsson, but not in these proceedings). I predicted this outcome in one of my recent posts.

In the case, the University of Minnesota sought to dismiss Ericsson’s petition for inter partes review “because it is a sovereign that is immune . . . under the Eleventh Amendment to the U.S. Constitution.” The PTAB agreed that with Minnesota that “IPR is an adjudicatory proceeding of a federal agency from which state entities are immune” but nevertheless held that Minnesota had “waived its Eleventh Amendment immunity by filing an action in federal court alleging infringement of the patent being challenged in this proceeding.” The PTAB wrote:

A party served with a patent infringement complaint in federal court must request an inter partes review of the asserted patent within one year of service of that complaint or be forever barred from doing so. See 35 U.S.C. § 315(b). Thus, it is reasonable to view a State that files a patent infringement action as having consented to an inter partes review of the asserted patent. . . . It would be unfair and inconsistent to allow a State to avail itself of the federal government’s authority by filing a patent infringement action in federal court, but then selectively invoke its sovereign immunity to ensure that a defendant is barred from requesting an inter partes review of the asserted patent from a different branch of that same federal government.

If the Federal Circuit upholds this decision, it will effectively be the end of parties “purchasing” Native American Tribe sovereign immunity, a la the Allergen deal I wrote about while back.

Finally, the decision is also notable for the “panel stacking” that occurred. Typically, three judge panels issue PTAB decisions. In this case, however, four additional judges were added to the panel, including the Chief Administrative Patent Judge, the Deputy Chief Administrative Patent Judge, and two Vice Chief Administrative Patent Judges. This “panel stacking” has invited much criticism in the currently pending Oil States Supreme Court case, which challenges the constitutionality of the PTAB.

Congratulations to Ericsson on this PTAB decision!!

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Magistrate Judge Byrant

Posted on December 28, 2017 by Steven Callahan

D. Gordon Bryant, Jr. has served as a Northern District of Texas Magistrate Judge since August 1, 2016. His chambers are in Lubbock.

According to the Northern District’s Official News Release (available here):

Mr. Bryant received a Bachelor of Business Administration degree, with honors, from Baylor University in 1983, and a Juris Doctor degree from Baylor School of Law in 1986. Upon graduation from law school, Mr. Bryant became an associate with Gibson, Ochsner and Adkins in Amarillo. In 1991, Mr. Bryant was selected to serve as an Assistant United States Attorney for the Northern District of Texas at Amarillo, and was later appointed Senior Litigation Counsel within the U.S. Attorney’s Office. Mr. Bryant has also frequently served as an instructor and faculty member at the Department of Justice’s National Advocacy Center, working with Department and agency attorneys in the areas of trial advocacy and motion practice in federal court.

Mr. Bryant is a member of the State Bar of Texas. He is admitted to practice in the United States Courts of Appeals for the Fifth and Ninth Circuits and the United States District Court for the Northern District of Texas.

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Magistrate Judge Ray

Posted on December 28, 2017 by Steven Callahan

Hal Roberts Ray, Jr. has served as a Northern District of Texas Magistrate Judge since June 2016. His chambers are in Wichita Fallas.

According to the Northern District’s Official News Release (available here):

Mr. Ray received a Bachelor of Arts degree in History, with highest honors, from the University of Texas at Austin in 1981; a Juris Doctor degree, with honors, from the University of Texas School of Law in 1984; and a Master of Laws degree, with merit, from the University of London in 2006. Upon graduation from law school, Mr. Ray served as law clerk to Chief United States District Judge Halbert O. Woodward in Lubbock, Texas, from 1984 to 1985. Following his clerkship, Mr. Ray worked as an associate with Thompson & Knight, LLP, in its Dallas and Fort Worth offices from 1985 to 1988 and from 1990 to 1994 and with Sherrill & Pace, P.C., in Wichita Falls from 1988 to 1990. Mr. Ray served as an assistant attorney general of Texas from 1994 to 1997. In 1997, he became a partner in Pope, Hardwicke, Christie, Schell, Kelly & Ray, LLP, in Fort Worth.

Mr. Ray is a member of the State Bar of Texas and is admitted to practice in the United States Courts of Appeals for the Fifth and District of Columbia Circuits and the United States District Courts for the Northern, Eastern, Western, and Southern Districts of Texas. He is board certified in Civil Trial Law by the Texas Board of Legal Specialization and is a member of the American Law Institute. Mr. Ray is a Fellow of the American Bar Foundation, a Sustaining Life Fellow of the Texas Bar Foundation, and a Fellow of the Tarrant County Bar Foundation.

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Chief Judge Lynn Refuses To Maintain Stay of Patent Case Pending Supreme Court’s Oil States Decision

Posted on November 26, 2017 by Steven Callahan

On November 13, 2017, Chief Judge Lynn entered an Order (available here) in Leak Surveys v. Flir Systems. In 2013, Leak filed suit asserting infringement of one patent. Thereafter, the PTAB instituted an IPR as to the patent, and the Court stayed the litigation pending the results of the IPR. In 2015, the PTAB invalidated all of the asserted claims, and, in 2017, the Federal Circuit affirmed the PTAB’s decision. The Supreme Court refused to grant certiorari to review the Federal Circuit’s decision.

Despite presently having no claims to assert (since they had all been invalidated), Leak sought to continue the stay until after the Supreme Court issues its decision in Oil States (wherein the Supreme Court will determine whether IPRs are constitutional). According to Leak, a finding that IPRs are unconstitutional would “void all previous IPR decisions such that they would no longer have any preclusive effect.” Chief Judge Lynn refused to maintain the stay, and instead dismissed the case with prejudice:

Plaintiff overstates the potential effect of Oil States. Even if the Supreme Court holds that IPRs are unconstitutional, it may choose not to apply the new rule retroactively. [FN1: The Supreme Court considers three factors to determine whether a decision announcing a new rule should apply retroactively. See Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). The factors are: (1) whether the holding in question “decid[ed] an issue of first impression whose resolution was not clearly foreshadowed” by earlier cases, (2) “whether retrospective operation will further or retard [the] operation” of the holding in question, and (3) whether retroactive application “could produce substantial inequitable results” in individual cases. Id. at 106-07.] Even if the Supreme Court applies the new rule retroactively, it would seemingly only apply to cases still pending on direct review of the PTAB decision. [FN2: In contrast to civil cases, criminal cases that are final on direct appeal may be subject to collateral review if the new rule is (1) substantive or (2) is a watershed rule that implicates the “fundamental fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406, 407 (2007) (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).] See Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 86 (1993). Accordingly, the outcome of Oil States is unlikely to affect the PTAB’s judgment here, where Plaintiff has exhausted all appeals.

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2018 N.D. Tex. Bench Bar Conference To Take Place On January 12, 2018

Posted on November 26, 2017 by Steven Callahan

The Dallas and Fort Worth Chapters of the Federal Bar Association will host the second annual Bench Bar Conference on Friday, January 12, 2018 (7.0 hours of MCLE credit, with 2.0 hours of ethics credit). Should be a great event. The attached flyer has more details.

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Federal Circuit’s In re Micron Decision—TC Heartland Constituted Change In Law, But District Courts Can Still Deny Untimely Motions To Dismiss For Improper Venue Under Inherent Authority

Posted on November 26, 2017 by Steven Callahan

In the wake of the Supreme Court’s TC Heartland decision (which significantly limited the venues where a plaintiff can file patent-infringement lawsuits), many defendants raised venue challenges for the first time after answering the plaintiff’s complaint. And many courts held that defendants in presently pending cases had waived an improper venue challenge by failing to file a motion to dismiss due to improper venue prior to filing their answers. Those courts held that the venue challenge was “available” to the defendants at the time (despite being squarely foreclosed by then-existing Federal Circuit precedent) such that the failure to challenge venue prior to answering resulted in waiver of the venue challenge under Federal Rule of Civil Procedure 12(h)(1)(A). Rule 12(h)(1)(A) provides for waiver when a defendant omits an available venue defense from an initial motion to dismiss or fails to file the venue challenge prior to answering the complaint.

In In re Micron (available here), the Federal Circuit held that those courts had incorrectly found waiver based on Rule 12:

We conclude that TC Heartland changed the controlling law in the relevant sense: at the time of the initial motion to dismiss, before the Court decided TC Heartland, the venue defense now raised by Micron (and others) based on TC Heartland’s interpretation of the venue statute was not “available,” thus making the waiver rule of Rule 12(g)(2) and (h)(1)(A) inapplicable.

The Court found that the improper venue defense, prior to TC Heartland, was not available because “until the Supreme Court decided TC Heartland . . . it would have been improper, given controlling precedent, for the district court to dismiss or to transfer for lack of venue. . . . Where controlling law precluded the district court, at the time of the motion, from adopting a defense or objection and on that basis granting the motion, it is natural to say, in this context, that the defense or objection was not ‘available’ to the movant.”

But the Federal Circuit nevertheless went on to find that a district court still has authority to find that a patent-infringement defendant has waived its improper venue defense:

But that waiver rule, we also conclude, is not the only basis on which a district court might reject a venue defense for non-merits reasons, such as by determining that the defense was not timely presented. A less bright-line, more discretionary framework applies even when Rule 12(g)(2) and hence Rule 12(h)(1)(A) does not.

Because the district court improperly found waiver under Rule 12, the Federal Circuit reversed and remanding for the district court to consider anew the defendant’s venue challenge. In doing so, the Federal Circuit set forth several considerations for district courts under this “discretionary framework”:

  • “[N]othing in the Federal Rules of Civil Procedure would preclude a district court from applying other standards, such as those requiring timely and adequate preservation, to find a venue objection lost if, for example, it was not made until long after the statutory change took effect.”
  • “Congress has provided express statutory confirmation of judicial authority to consider the timeliness and adequacy of a venue objection: 28 U.S.C. § 1406(b) provides that ‘[n]othing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.’”
  • “Being a privilege, [venue] may be lost. It may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission through conduct.”
  • “We have not provided a precedential answer to the question whether the timeliness determination may take account of factors other than the sheer time from when the defense becomes available to when it is asserted, including factors such as how near is the trial, which may implicate efficiency or other interests of the judicial system and of other participants in the case. But we have denied mandamus, finding no clear abuse of discretion, in several cases involving venue objections based on TC Heartland that were presented close to trial. We also note a scenario that presents at least an obvious starting point for a claim of forfeiture, whether based on timeliness or consent or distinct grounds: a defendant’s tactical wait-and-see bypassing of an opportunity to declare a desire for a different forum, where the course of proceedings might well have been altered by such a declaration.”

At bottom, In re Micron is of limited import, because it only applies to those cases pending at the time of the TC Heartland decision where defendants did not lodge venue challenges pre-TC Heartland but had venue challenges available to them post-TC Heartland because of TC Heartland’s change in the law. Of course, for those cases filed post-TC Heartland, defendants sued in improper venue now have the venue challenge made available to them by TC Heartland, so those defendants will waive their venue challenge by failing to challenge venue prior to answering.

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Thinking About Suing Your Opponent’s Lawyer In Texas? Think Again — Judge Godbey Tosses Case Against Proskauer Rose Due To Attorney Immunity Doctrine

Posted on November 26, 2017 by Steven Callahan

On November 2, 2017, Judge Godbey entered an Order (available here) in Dorrell v. Proskauer Rose. In the case, plaintiffs were a group of investors who purchased fraudulent certificates of deposit issued by Stanford International Bank Limited (i.e., the Stanford of ponzi-scheme fame). Plaintiffs allege that Proskauer (a law firm), through one of its former partners, “conspired with Stanford to avoid regulation and detection, thereby extending the duration of Stanford’s scheme.” Proskauer moved to dismiss based on the attorney-immunity doctrine.

Judge Godbey agreed with Proskauer and dismissed the case. Judge Godbey summarized the attorney-immunity doctrine as follows:

It is well-settled in Texas that a third party may not generally hold an attorney liable for conduct undertaken in the representation of a client. This general rule is designed to encourage “loyal, faithful, and aggressive representation by attorneys employed as advocates,” which might be compromised if attorneys were subject to suit by third parties. An attorney is thus “given latitude to ‘pursue legal rights that he deems necessary and proper’ precisely to avoid the inevitable conflict that would arise if he were ‘forced constantly to balance his own potential exposure against his client’s best interest.’” The scope of the rule turns “on the type of conduct in which the attorney engages, rather than on whether the conduct was meritorious in the context of the underlying lawsuit.” Hence, if an attorney conclusively establishes that his conduct was within the scope of his legal representation of a client, attorney immunity applies.

However, attorneys “are not protected from liability to non-clients for their actions when they do not qualify as ‘the kind of conduct in which an attorney engages when discharging his duties to his client.’” For example, an attorney who participates in a fraudulent business scheme with a client or assaults opposing counsel during trial is unprotected by attorney immunity, as such acts are “entirely foreign to the duties of an attorney.”

(citations omitted).

Plaintiffs argued that the attorney-immunity doctrine did not apply to the facts of the case, due to three purported exceptions: (i) the “litigation context exception” (i.e., the attorney-immunity doctrine does not apply to conduct that occurs outside of formal litigation); (ii) the “crime exception” (i.e., that the attorney-immunity doctrine does immunize an attorney’s criminal conduct); and (iii) the “Texas Securities Act exception” (i.e., that immunity does not extend to claims brought under the Texas Securities Act). Ultimately, Judge Godbey ruled none these exceptions do not exist under Texas law.

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15 New Patent Cases

Posted on November 26, 2017 by Steven Callahan

Over the last several weeks, there have been 15 new patent cases filed in the Northern District of Texas, including:

  • BookIt v. Bank of America (complaint available here);
  • Canon v. Avigilon (complaint available here);
  • Cellular Communications Equipment v. ZTE et al. (complaint available here);
  • Iron Oak Technologies v. Sharp (complaint available here);
  • Uniloc v. LG Electronics (6 cases) (complaints available here, here, here, here, here, here, and here);
  • MyMail v. Yahoo (complaint available here);
  • Display Technologies v. Yamaha (complaint available here);
  • Jenny Yoo Collection v. Watters Designs (complaint available here); and
  • Complex Memory v. ZTE (complaint available here).
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Magistrate Judge Reno

Posted on November 26, 2017 by Steven Callahan

Congratulations to Lee Ann Reno for her selection as magistrate judge for the Northern District of Texas’ Amarillo division! Magistrate Judge Reno is replacing Magistrate Judge Averitte, who served for the last 30 years as the Amarillo division’s first and only full-time magistrate judge.

Judge Reno’s service began on October 1, 2017. According to a Northern District of Texas News Release (available here):

Lee Ann Reno is a native of West Texas who grew up in Panhandle, Texas. She attended Texas Tech University and in 1990 received her Bachelor of Science in Education, summa cum laude. In 1994, she received her Doctor of Jurisprudence, cum laude, from Texas Tech University School of Law, where she served as a research editor of the Law Review. Upon graduation from law school, Ms. Reno began private practice as an associate attorney at the Amarillo law firm of Sprouse, Mozola, Smith & Rowley, now known as Sprouse Shrader Smith. She has spent all 23 years of her law practice with the Sprouse firm. In January 2000, Ms. Reno became the second female partner in the firm, where her practice included cases in the areas of civil rights/governmental entity defense, personal injury defense, employment law, and commercial litigation.

In 2005, Ms. Reno’s peers elected her to serve as the President of the Texas Young Lawyers Association. Both before and since that time, Ms. Reno has served on numerous state and local bar committees, as well as civic organizations, including President of the Amarillo Area Bar Foundation, President of the Amarillo Area Women’s Bar Association, and President of the Amarillo Area Young Lawyers Association. She is a Sustaining Life Fellow of the Texas Bar Foundation. Ms. Reno was recently elected to be a member of the American Board of Trial Advocates. Ms. Reno has extensive trial and appellate experience, having tried well over 30 cases to verdict and handled numerous appeals in both state and federal courts. Ms. Reno is licensed in all state courts in Texas, and is admitted to practice in all four federal district courts in Texas, the United States Court of Appeals for the Fifth Circuit, and the United States Supreme Court.

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