Judge Means Awards Highmark $4.7 Million in Attorney’s Fees In Patent Infringement Lawsuit

Posted on November 7, 2010 by Steven Callahan

On November 5, 2010, Judge Means issued an order in Highmark, Inc. v. Allcare Health Management Systems, Inc. awarding Highmark $4,694,727.40 in attorney’s fees and $209,626.56 in expenses (pdf copy of order here).  The order arose out of a patent infringement lawsuit between Highmark and Allcare.  Highmark filed a declaratory judgment lawsuit in the Northern District of Texas, and Allcare counterclaimed for infringement of its patent.  After Highmark prevailed on its noninfringement defense, Judge Means determined that the case was exceptional, pursuant to 35 U.S.C. § 285, in Highmark’s favor on account of certain actions undertaken by Allcare, and that there was no cause to exercise the Court’s discretion and deny Highmark’s request for fees.

Highmark’s fee motion indicated that “16,019.67 hours were expended by attorneys working on its case and that an additional 2,640.54 hours were expended by non-attorneys” over the course of seven years.  Judge Means concluded that the hourly rates of Highmark’s counsel were reasonable, but reduced the fee amount by those fees attributable to Highmark’s invalidity and unenforceability defenses and those fees attributable to certain discovery disputes (which amounted to less than $200,000).

Judge Means used his inherent authority to award approximately $360,000 in expert fees, given that 35 U.S.C. § 285 does not permit an award of expert fees as part of an exceptional case finding.  Judge Means had earlier found that Allcare “pursued frivolous counterclaims even after it became clear that those counterclaims were meritless” and “asserted defenses despite knowing they were meritless.”

Highmark is represented by Craig Florence and Robert Slovak, both of Gardere Wynne Sewell LLP; and Cynthia Kernick, Frederick Colen, and Kevin Katona, all of Reed Smith LLP.

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Judge Boyle Issues Permanent Injunction and Final Judgment in Heeling Sports Ltd. v. New Concord, Inc.

Posted on November 4, 2010 by Steven Callahan

On November 2, 2010, Judge Boyle permanently enjoined New Concord from infringing Heeling Sports Ltd.’s U.S. Patent Nos. 6,406,038; 6,739,602; and 6,746,026, all of which relate to roller-skate shoes. New Concord was required to pay $375,300 for its infringement ($15 per pair of shoes).  New Concord was also enjoined from infringing the patents-in-suit.  A copy of the order is here.

Heeling Sports is represented by Craig Florence, Andrew Howard, and Thomas Wright, all of Gardere Wynne Sewell.

New Concord is represented by Kevin Tung.

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Judge O’Connor Tosses False Claims Act Claim Against Northrop Grumman

Posted on November 3, 2010 by Steven Callahan

On October 27, 2010, Judge O’Connor held in United States ex rel. DeKort v. Integrated Coast Guard Systems that one of the claims in Michael DeKort’s qui tam False Claims Act lawsuit against Lockheed Martin, Integrated Coast Guard Systems, and Northrop Grumman failed for lack of subject matter jurisdiction (pdf copy of decision here). 

The case relates to the Coast Guard’s expenditure of over $96 million to retrofit eight patrol boats.  The boats are presently useless after being decommissioned by the Coast Guard.  “Relator Michael J. DeKort alleges that Northrop Grumman violated the FCA by fraudulently certifying that the boats would meet the Coast Guard’s performance specifications while knowingly or recklessly disregarding various design defects that later resulted in severe hull buckling and shaft misalignments[.]”  Northrop Grumman denied the allegations and further asserted that the False Claims Act’s “public disclosure bar,” found in 31 U.S.C. § 3730(e)(4), deprived the Court of subject matter jurisdiction over DeKort’s claim that  Northrop Grumman knew that the designs of the boats were defective but built them anyway and delivered them to the Coast Guard.

Judge O’Connor agreed, finding that DeKort’s design defect claim was disclosed in Congressional hearings in 2007, and that he was not the original source of this information (i.e., he did not have direct and independent knowledge of this information and he had not voluntarily provided the information to the government before filing suit).  Accordingly, Judge O’Connor dismissed this claim pursuant to § 3730(e)(4).

Relator DeKort is represented by Samuel Boyd and Catherine Jobe, both of Boyd & Associates; and James Helmer, Jr., Julie Popham, Robert Rice, and Erin Campbell, all of Helmer Martins Rice & Popham Co. L.P.A.

Northrop Grumman is represented by David McAtee, II, Christopher Rogers, and Sarah Teachout, of Haynes & Boone LLP; and Allen Cannon, III, Angela Martinez, David Taylor, Donald Carney, Jeffrey Eisenstein, Maggie Greenlee, Richard Clifford, Jr., Suzette Derrevere, Thomas Boeder, and W. Hartmann Young, all of Perkins Coie LLP.

Lockheed Martin Corp. is represented by Daniel Chudd, Edward Jackson, Jennifer Dlugosz, Michael Khoo, Sarah Maguire, and W. Jay DeVecchio, all of Jenner & Block LLP.

Integrated Coast Guard Systems is represented by Kaylee Higginbotham and William Whitehill, both of Gardere Wynne Sewell LLP; and Craig Guthery, Gregory Smith, Hans Chen, John Henault, and Robert Vieth, all of Cooley LLP.

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$260,000 in Attorney’s Fees and Expenses Awarded in Wachovia’s Case Against Schlegels

Posted on November 2, 2010 by Steven Callahan

On October 29, 2010, Chief Judge Fitzwater awarded Wachovia $259,367.58 in attorney’s fees and expenses in Wachovia v. Schlegel (pdf copy of the decision available here).  Wachovia sued Robert J. Schlegel and Robert K. Schlegel in the Northern District of Texas for their alleged failure to pay back three loans totaling $19 million.  The Schlegels ultimately paid back one loan and Wachovia obtained summary judgment on its claims for the other two, with Chief Judge Fitzwater ordering the Schlegels to pay Wachovia $17 million.

Wachovia then filed a motion requesting that the Schlegels be ordered to pay its attorney’s fees and expenses pursuant to the Schlegels’ contractual agreements to pay for fees and Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8).

Chief Judge Fitzwater noted that, while the Schlegels initially sought leave to file a response to Wachovia’s fee motion (we note that a party need not file a motion for leave to file a response brief, as a party is entitled to file a response as a matter of right under the Local Rules), they failed to do so.  Finding Wachovia’s motion to be well taken, Chief Judge Fitzwater granted it and ordered the Schlegels to pay Wachovia an additional $259,367.58 in attorney’s fees and expenses.

Wachovia is represented by Matthew Moran and Daniel Kelly, both of Vinson & Elkins LLP.

The Schlegels are represented by Lawrence Friedman and Melissa Kingston, both of Friedman & Feiger LLP.

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Judge Maloney

Posted on October 28, 2010 by Steven Callahan

Judge Maloney was born in Dallas, Texas, and appointed to the Northern District of Texas in 1985 by President Reagan.  Judge Maloney received his B.B.A. in 1956 from Southern Methodist University and received his law degree in 1960 from Southern Methodist University School of Law.

Following law school, Judge Maloney served from 1961 to 1962 as an Assistant District Attorney for Dallas County.  Thereafter, Judge Maloney was a Partner with Watts, Stallings & Maloney (1962 – 1965); Maloney, Milner & McDowell (1966 – 1975); Maloney & McDowell (1976 – 1978); Maloney & Hardcastle (1979 – 1980); and Maloney & Maloney (1981 – 1984).

Judge Maloney was also a Member of the Texas House of Representatives from 1973 to 1982.

In 1983 until his appointment to the Northern District of Texas, Judge Maloney served as an Associate Justice of the Texas Court of Appeals, Fifth District.

Judge Maloney assumed senior status in 2000.

His chambers are in Dallas, Texas.

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Judge Fish

Posted on October 28, 2010 by Steven Callahan

Judge Fish was born in Los Angeles, California and appointed to the Northern District of Texas in 1983 by President Reagan.  Judge Fish received his B.A. in 1965 from Yale College, and his LLB in 1968 from Yale Law School.

From 1968 to 1974, Judge Fish served our country in the United States Army Reserve.  From 1968 to 1980, Judge Fish practiced law with McKenzie & Baer in Dallas, Texas.

In 1980, Judge Fish served as the Judge of the 95th Judicial District, Texas District Court.  From 1981 until his appointment to the Northern District of Texas, Jude Fish served as a Judge on the Texas Court of Appeals, Fifth District.

Judge Fish served as the Chief Judge of the Northern District of Texas from 2002 to 2007.  In 2007, he assumed senior status.

Judge Fish’s chambers are in Dallas, Texas.

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Judge Kinkeade

Posted on October 28, 2010 by Steven Callahan

Judge Kinkeade was born in Denton, Texas, and appointed to the Northern District of Texas in 2002 by President George W. Bush.  Judge Kinkeade received his B.A. in 1973 from Baylor University and his J.D. in 1974 from Baylor University School of Law.

From 1974 to 1975, Judge Kinkeade practiced law as an Associate with Dennis G. Brewer, Inc., and, from 1975 to 1980, as a Partner with Power & Kinkeade.

In 1981, Judge Kinkeade became a Judge on the 194th Judicial District Court in Dallas, Texas, where he remained until 1988.  From 1988 to 2002, he served as a Justice on the Texas Court of Appeals, Fifth District.

From 1981 to 2002, Judge Kinkeade served as an Adjunct Professor at Texas Wesleyan School of Law.

Judge Kinkeade’s chambers are in Dallas, Texas.

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Judge Godbey

Posted on October 27, 2010 by Steven Callahan

Judge Godbey was born in Temple, Texas and appointed to the Northern District of Texas in 2002 by President George W. Bush.  Judge Godbey received his B.S.E.E. and B.S., magna cum laude, from Southern Methodist Unversity in 1978, and his J.D., magna cum laude, in 1982 from the Harvard Law School.

After law school, Judge Godbey clerked for the Honorable Irving Goldberg, of the United States Court of Appeals for the Fifth Circuit, from 1982 to 1983.  Following his clerkship, Judge Godbey practiced law with Hughes & Luce, LLP from 1983 to 1994 (first as an associate and then as a partner).  From 1995 to 2002, Judge Godbey served as a Judge on the State of Texas’ 160th District Court.

Judge Godbey’s chambers are in Dallas, Texas.

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Local Rule Change — Rules 56.3, 56.4, 56.5, and 56.6

Posted on October 27, 2010 by Steven Callahan

Unless modified after receipt of public comment, Local Rules 56.3, 56.4, 56.5, and 56.6 will be amended effective as of December 1, 2010.  (The new rules will apply to all proceedings in civil actions thereafter commenced, and, insofar as practicable, all proceedings in civil actions then pending).

The new rules focus primarily on the parties’ summary judgment appendixes.  Among other things, the new rules require that parties cite each relevant page of their own or their opponent’s appendix.  See New L.R. 56.5(c).

A pdf copy of the new rules (which contains a redline showing the changes from the old rules) has been made available by the Northern District of Texas (pdf here).

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Judge Lindsay

Posted on October 26, 2010 by Steven Callahan

Judge Lindsay was born in San Antonio, Texas, and appointed to the Northern District of Texas in 1998 by President Clinton.  Judge Lindsay received his B.A. in 1974 from St. Mary’s University, and his J.D. in 1977 from the University of Texas School of Law. 

From 1977 to 1979, Judge Lindsay served as an attorney for the Texas Aeronautics Commission; from 1979 to 1992, he served as an attorney with the Dallas City Attorney’s Office; and, from 1992 to 1998, he served as the Dallas City Attorney.  During his career representing the City of Dallas, Judge Lindsay handled over 350 cases and 60 trials.

Judge Lindsay’s chambers are in Dallas, Texas.

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