Will Joe Biden Get To Appoint Any Supreme Court Justices? See Also

The Breyer Retirement Speculation Begins: But maybe ask the source first.

Compare And Contrast Two Judges Using One Law: Cute except, you know, people’s actual shelter hangs in the balance.

Paul Davis Is Back In The News: No Hobbits, but there’s still plenty of time for that.

What Would A Federal Name, Image, and Likeness Bill Look Like? Funny you should ask…

Prince Harry And The Green Card: Sounds like a cheap romance novel to me.

The Market For Lateral Biglaw Partners Is In Decline

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected in Leopard Solutions‘ State of the Legal Industry 2020 report, what percentage of the top 200 law firms saw a decline in the number of lateral partners hired in 2020 compared with 2019?

Hint: Leopard reports only 28 percent hired more partners in 2020 compared with 2019 (the balance hired lateral parters at the same rate as the previous year).

See the answer on the next page.

NYT: Trump CFO Allen Weisselberg Flipped For SDNY. He Flipped For NYAG. And Now He’s Chatting Up Cy Vance.

(Photo by JIM WATSON/AFP/Getty Images)

Trump Organization CFO Allen Weisselberg has long been the white whale of Trump watchers. The 73-year-old accountant got his start in the ’70s doing the books for the former president’s father Fred Trump and he’s been with the company ever since, running day-to-day operations with Don Jr. and Eric when their father went to the White House in 2017. And now, according to the New York Times, prosecutors with the Manhattan District Attorney’s Office have zeroed in on him in their investigation of Donald Trump’s finances.

As the New Yorker’s Adam Davidson wrote in a 2018 article on Weisselberg, if there are bodies to be found in Trumpland, he’s the guy who knows where they’re buried. So Weisselberg’s limited immunity agreement in 2018 to testify to the Southern District of New York about the circumstances of the Stormy Daniels hush money payoff touched off a storm of speculation that Trump was in trouble for real this time, which… well, clearly not.

But Weisselberg’s testimony to former New York Attorney General Barbara Underwood about self-dealing at the Trump “charity” got the family foundation disbanded, while Trump and his kids had to kick up $2 million and go to remedial education to learn to differentiate between legitimate philanthropic endeavors and using charitable funds to buy a painting of Trump to hang in their private club.

Weisselberg is currently dancing that same dance with Underwood’s replacement Letitia James, who is looking into a whole raft of allegations about Trump’s financials. We’re not getting a lot of visibility into this ongoing investigation, but this passage from an August 2020 motion to enforce a subpoena shows the bind Weisselberg is in. The NYAG wants to know if the Trump Organization picked up $100 million of loan forgiveness as income in 2012, and the company wants to have Weisselberg pinky swear that they they did rather than produce a tax return to prove it.

In the course of its investigation, OAG has sought merely to confirm that the amounts forgiven by Fortress were ultimately recognized as income (or an explanation as to why the Trump Organization was not required to do so). First Aff. ¶ 84. OAG raised this issue with the Trump Organization on or about April 7, 2020, and after subsequent discussions, the Trump Organization represented that its Chief Financial Officer, Allen Weisselberg, would testify as to those relevant matters. Id. ¶¶ 85-86. Mr. Weisselberg did not, however, have personal knowledge and the Trump Organization subsequently refused to produce documents to confirm these basic facts. Id. ¶¶ 87-93.

Clearly there are limits to what Weisselberg is willing to do for his boss. And according to the Times, Vance has been asking questions about the accountant’s sons Barry Weisselberg, who manages the Wolman Ice Rink for the Trump Organization, and Jack Weisselberg, who works for Ladder Capital, one of Donald Trump’s major lenders. As previously reported by Bloomberg, Barry Weisselberg enjoyed multiple expensive perks courtesy of the Trump family, including free rent, which might well have income tax consequences if improperly declared. So, clearly Vance has some potential leverage over Weisselberg should he choose to exert it.

According to the Times, the Manhattan prosecutor is focused on some of the same real estate deals that the NYAG is investigating, particularly whether the Trump Organization falsified loan applications with inflated appraisals, and whether the company properly accounted for the hush money payment to Stormy Daniels.

Remember that Trump’s own lawyer Rudy Giuliani already went on television and said that the company reimbursed Michael Cohen the $130,000 he fronted for the payoff by “putting him on retainer,” a practice which he described as standard operating procedure for lawyers.

“When I heard Cohen’s retainer of $35K when he was doing no work for the president, I said that’s how he’s repaying it,” Giuliani told Sean Hannity. “With a little profit and a little margin for paying taxes.”

This was approximately ten minutes before Greenberg Traurig told Giuliani to clean out his office. Probably a coincidence! (Also, memories of a bygone era when the only thing leaking on Rudy’s head was his mouth.)

So will Cyrus Vance get Weisselberg to give up the goods? Who knows! But maybe he’ll get lucky and Rudy will testify to Laura Ingraham and tell us all what happened.

Prosecutors Investigating Trump Focus on His Finance Chief [NYT]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Twice-Fired Attorney Takes To Twitter To Defend His Bonkers Legal Theories

Paul Davis (Image via Twitter)

Oh, Paul Davis. I just don’t know how to quit (writing about) you. What is it about the Hobbit-loving, Capitol-insurrectionist attorney that keeps me coming back for more? His propensity to get fired? His prolific filings of batshit legal theories? The way he gets butt hurt when people make fun of him? No, it’s definitely D, all of the above.

After the now-former general counsel got fired after participating in the January 6th riots, you’ll recall he filed a lawsuit seeking to undo the entirety of the 2020 election because of violations of the Help America Vote Act (HAVA) which, in turn, begat civil rights violations. Yes, in follow on filings he cited every nerd’s first love J.R.R. Tolkien for the notion that the United States could be ruled by a steward and we all laughed (with good reason) at that. But eventually he was fired by some of those plaintiffs over a disagreement over legal strategy, and he filed a second lawsuit, that the internet is calling In Re Gondor II but is really Bravo v. Pelosi, reiterating the causes of action from his first lawsuit.

But Davis’s feelings got hurt again when people (again, rightly) started dunking on his TRO application in Gondor II. And just like his favorite (probably) president, Davis took to Twitter to express his anger:

UMMMM “no one” finds a “legal flaw” in Davis’s argument except for the FEDERAL JUDGE APPOINTED BY DONALD TRUMP. Judge Alan Albright literally said the causes of action in the original complaint — the exact same ones Davis doubles down on in his second complaint — are “without merit” and gives real life legal analysis to boot:

Here, the Court finds that Plaintiff’s claims are without merit, because the federal statute under which they seek relief do not permit them to sue Defendants to restrain Defendants from “participating in any action relating to the process of electing public officials, holding public office or any official government position, or position in any partisan enterprise related to American politics, and from defaming or threatening or otherwise interfering with the life, liberty, or property of Plaintiffs.” Pls.’ Compl. Plaintiffs have not pleaded sufficient facts to state a claim to relief that is plausible on its face under either the Help America Vote Act (HAVA) or § 1983.

But far be it from Davis to listen to the legal advice of Judge Albright — the judge is saying in as clear language as possible that the case is a stinker. But Davis persists, and just continues to spew utter nonsense to the interwebs:

I can’t imagine there’ll ever be a time I’ll stop laughing at this nonsense.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Credit Suisse Is Gonna Go Ahead And Cut Off Its Greensill Funds, Future Legal Liability

As we have discussed, at frankly relentless length, Credit Suisse spends more than enough time in courtrooms and lawyers’ offices already. And has also, to its taste, lost enough money on hifalutin investment funds recently. So, given the rather distressing things it’s learning about the supply-chain finance firm whose products make up pretty much all of four funds Credit Suisse sells to clients with the means to hire very expensive lawyers, and whose money said supply-chain finance firm relies upon to continue, uh, financing supply chains, it’s going to go ahead and start limiting its future legal liability.

Durbin On Whether Justice Stephen Breyer Should Retire In 2021

Justice Stephen Breyer (Photo by Chip Somodevilla/Getty Images)

Should he? You are asking me? I am going to leave this entirely up to him, obviously. Give me a break! I’ve been in this chair for four days.

— Senator Dick Durbin, Chair of the Senate Judiciary Committee, responding to a question from a New York Times reporter as to whether he thought Justice Stephen Breyer should retire this year, during a wide-ranging interview on his hopes for the Biden administration, including his ideas on the confirmation of judges and the expansion of the federal court system.

Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

A Tale Of Two Judges As Told Through The Federal Eviction Moratorium

J. Campbell Barker is a U.S. district judge by virtue of the last four years of jamming anyone with a law degree and an active FedSoc membership into a federal robe. Last week, Barker ruled that the federal eviction moratorium was invalid because rent — he reasoned — did not constitute economic activity. The opinion, drafted by a man named to the federal bench in his 30s, hangs its analytic hat on the notion that the federal government didn’t stop evictions during the Spanish flu epidemic so it lacks the power to do so here.

The tragicomedy of this opinion, arguing that rentals can never amount to interstate commerce went to lengths to blinker out the fact that the entire foundation of civil rights jurisprudence is based on the fact that renting rooms does, in fact, impact interstate commerce.

A federal mask mandate is certainly on iffy legal ground, as a general exercise of police power, but “don’t use the pandemic to exacerbate the economic downturn by tossing people on the street” is more than within the bounds of federal power. It’s why not even the Trump administration lawyers thought there was a problem with this — because even that band of misfits lacked the level of incompetence to write decades of jurisprudence out of existence. Did Judge Barker go out of his way to note in the fact section that COVID-19 is mostly harmless? Of course he did! Because that way he could focus his entire analysis on the economic impact of people moving between states and not on the impact homelessness has on institutionalizing temporary joblessness, nuking the national economic outlook.

That opinion wouldn’t register much import beyond being yet another milestone in the degradation of the federal court braintrust at the altar of the contemporary political whims of the Republican Party. It tugs a little harder on the gall-o-meter that a child judge is throwing Trump’s own policies under the bus solely to own the libs, but it’s not particularly shocking.

But it’s an interesting opinion to read in juxtaposition with this January opinion from Georgia state judge Dennis T. Blackmon. Where Barker shows willful ignorance of the basic science of the situation, Judge Blackmon expresses wisdom. When a mortgage company tried to repossess a mobile home, Judge Blackmon laid it out in plain terms:

This court finds that taking back a family’s trailer home on a contract is the same as evicting a tenant or foreclosing and taking possession of someone’s house. Everybody is just going to have to be patient and wait until the pandemic is over. This too shall pass. We must all accept the ephemerality of the human condition.

Judge Blackmon cites Woody Guthrie in his order, singing about wage earners finding themselves priced out of their homes. Because that’s the national economic crisis the federal government is trying to combat: it’s not just the unemployed who aren’t making payments right now, it’s workers who are keeping the economy afloat and struggling that can slip entirely out of the workforce if they lost their home during a temporary downturn. That’s why a national response to keep everyone housed where they are until this ends is an interstate economic imperative. It’s why a career slumlord didn’t stand in the way of a federal eviction moratorium from his own administration.

But that’s the difference between a career judge entering his 17th year on the bench who came at the job after years serving as a prosecutor, and a public defender, and in private practice. It’s not so much that Judge Blackmon has an ideological lean as much as he affirmatively doesn’t see his job as an ideological resume-builder. He’s there to adjudicate disputes fairly based on the law as it exists, not as shadowy handlers might want it to be.

When a tipster sent us the Blackmon opinion the other day I didn’t plan to write about it because it had happened back in January, but then I came across it again over the weekend while I was pondering Judge Barker’s mess. It’s quite the juxtaposition.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

The Only Sure Bets In The COVID World Were Streaming And SaaS

Disney+ hit its five-year subscriber target in a few months of 2020. Netflix dominated the Golden Globes and puts out more movies than most of the Hollywood studios combined. A new Discovery+ streaming service is selling itself on the siren song of new episodes of Good Eats and random murder porn on what was once the Travel Channel. When lockdowns took hold across the country (or, more accurately, the parts of the country that realized there was no other plan), streaming became the best bet in entertainment.

The other solid bet was on SaaS. How could businesses keep running in a topsy-turvy environment? With constantly updating software backed by computing power that on premises systems could never reasonably afford, the software as a service business model — like streaming — may have found itself on the upswing before the pandemic but solidified its hold on the future as the country adapted.

During the recent “Legalweek(year)TechNY(carry the 2)” show or whatever they’re calling it these days, I chatted with Casepoint about how the company weathered the storm. As I’d expected, their business model thrived as companies found themselves more reliant upon solutions that could function remotely, securely, and maybe more importantly, flexibly. Casepoint ended up hiring across every single department through 2020 to keep up with the fast-paced shift toward relying exclusively on SaaS.

From a law firm-heavy client base, Casepoint has made tremendous in-roads into corporate clientele and court systems. It’s not exactly surprising — when the SEC announced a specially designed Casepoint product for its eDiscovery needs, it seemed only a matter of time before non-firm clients realized that there was a lot more to Casepoint than traditional firm eDiscovery.

Because at the end of the day, the process involved in discovery is easily adaptable. Responding to FOIA requests, conducting internal investigations, addressing corporate data breaches, and the data subjects access request process brought on by GDPR and the CCPA all involve the similar work that entities realized Casepoint could address with their underlying technology. A technology that secured three patents in the latter half of 2020.

But maybe the most surprising growth sector for Casepoint was the emergence of ALSPs. At one point, ALSPs would’ve considered themselves competitors with Casepoint, but with the realization that the software and the labor are better served under separate roofs, companies are moving toward adopting SaaS solutions to maximize efficiency. When I chatted with Chief Revenue Officer David Carns, he said that the ALSP market had “been growing this slowly but surely over the last few years, but the new release was redesigned to make it easy for them to adopt.” Frankly, with Casepoint being “cloud agnostic” it’s an easy sell to organizations that have their own preferred cloud provider, which describes a lot of ALSPs.

Whatever the business, the key to solutions like Casepoint is the ability to bring hundreds upon hundreds of servers to bear at all times. It’s making predictive analysis in the background all the time. “Our machines are running constant predictions — no on prem system can mimic what the cloud does. On premise is almost untenable these days,” Carns notes. And with legal issues crossing departments so often — starting in risk management, going to litigation, elevated to the GC, then sent to outside counsel — everything can stay in one basket with no duplication.

There might have been someone out there who still wants to buy a box of software to live on a server in the basement, but after what we’ve been through, I don’t know as though anyone hasn’t been convinced to make the leap.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

This Is How A Federal Name, Image, And Likeness Bill Should Look

What would the perfect national college athlete name, image, and likeness bill look like? I have gone through each of the currently proposed bills sponsored by members of Congress and cherry-picked the provisions that make the most sense for a precise, concise piece of legislation that I believe Democrats and Republicans should come together to ensure that all college athletes across the U.S. are afforded the ability to exploit their publicity rights sooner rather than later.

  1. The actual prohibition on restricting college athletes’ commercial exploitation of their names, images, and likenesses should be taken from The College Athlete Economic Freedom Act, authored by Sen. Chris Murphy and Rep. Lori Trahan. It states, “An institution of higher education or intercollegiate athletic association may not enact or enforce any rule, requirement, standard, or other limitation that prevents college athletes or prospective college athletes, individually or as a group, from marketing the use of their names, images, likenesses, and athletic reputations.” This would ensure that athletes, no matter their age or whether they are even enrolled in college, have the capacity to earn money from their publicity rights.
  2. Sticking with the bill authored by Murphy and Trahan, there should be an express authority for group licensing. Their bill says, “An institution of higher education or intercollegiate athletic association may not enact or enforce any rule, requirement, standard, or other limitation, or engage in conduct that prevents college athletes from forming or recognizing, or interferes with such formation or recognition of, a collective representative to facilitate group licensing agreements or provide representation for college athletes.”
  3. The College Athletes Bill of Rights, introduced by Sens. Cory Booker, Richard Blumenthal, and others does a good job of explaining when athletes should be allowed to endorse brands and when the school should have a monopoly on what the athletes wear. It says, “Except as provided in subparagraph (B), an institution of higher education may require a college athlete to use, during a competition or practice sponsored by the institution of higher education, apparel selected by the institution of higher education.” Subparagraph (B) goes on to state, “An institution of higher education may not prohibit, and may not enter into a contract that prohibits, a college athlete from carrying out activities pursuant to an endorsement contract during a period in which the college athlete is not engaged in a mandatory team activity” and “An institution of higher education may not prohibit or discourage a college athlete from wearing footwear of his or her choice during mandatory team activities, unless the footwear has lights, reflective fabric, or poses a health risk to the college athlete.”
  4. That same bill does well with explaining the types of representation that athletes should be able to choose. “An institution of higher education, an intercollegiate athletic association, or a conference may not restrict the ability of a college athlete to obtain agent representation with respect to an endorsement contract, including — (A) representation provided by college athlete agents, group licensing entities, and financial advisors; and (B) legal representation by attorneys.”
  5. The Amateur Athletes Protection and Compensation Act of 2021, introduced by Sen. Jerry Moran, has strong language with regard to allowing college athletes who declare for a professional sports league draft to return to school under certain circumstances. It says, “A national amateur athletic association or an institution of higher education may not prohibit the participation of an amateur intercollegiate athlete in an amateur intercollegiate athletic event based on the amateur intercollegiate athlete having entered into a professional sports draft, if the amateur intercollegiate athlete — (1) does not receive compensation, directly or indirectly, from — (A) a professional sports league; (B) a professional sports team; or (C) a sports agent; (D) an amateur athlete representative; or (E) any individual or entity affiliated with an individual or entity described in any of sub paragraphs (A) through (D); and (2) not later than 7 days after the completion of the draft, declares his or her intent to resume participation in amateur intercollegiate athletic competition.”
  6. There should be limitations on the types of industries that college athletes can contract with, but those same limitations should apply to the schools. The Student Athlete Level Playing Field Act, introduced by Reps. Anthony Gonzalez and Emanuel Cleaver suggests prohibiting contracts with “(A) A tobacco company or brand, including any vaping device or e-cigarette or related product. (B) Any alcohol company or brand. (C) Any seller or dispensary of a controlled substance, including marijuana. (D) Any adult entertainment business. (E) Any casino or entities that sponsor or promote gambling activities.”
  7. Adopting an element from Florida’s Intercollegiate Athlete Compensation and Rights law, authored by state Rep. Chip LaMarca, a national law should include some enhanced education for athletes who will be thrust in a position of economic empowerment. Florida’s law includes that, “A postsecondary institution shall conduct a financial literacy and life skills workshop for a minimum of 5 hours at the beginning of the intercollegiate athlete’s first and third academic years. The workshop shall, at a minimum, include information concerning financial aid, debt management, and a recommended budget for full and partial grant-in-aid intercollegiate athletes based on the current academic year’s cost of attendance. The workshop shall also include information on time management skills necessary for success as an intercollegiate athlete and available academic resources. The workshop may not include any marketing, advertising, referral, or solicitation by providers of financial products or services.”
  8. A model bill should not provide the NCAA and any school or conference with immunity from any causes of action, as proposed in the Fairness in Collegiate Athletics Act introduced by Sen. Marco Rubio.
  9. A model bill should not delve into the issue of whether college athletes are to be classified as employees, since it is wholly irrelevant to the subject matter at hand. For instance, Sen. Roger Wicker’s Collegiate Athlete and Compensation Rights Act says that “a student athlete shall not be considered an employee of an association, a conference, or an institution based on participation in varsity intercollegiate sports competition.”
  10. While there may be a desire to expand into areas such as athletes’ right to transfer, coverage of certain medical expenses, and allowing athletes to share in the revenue generated by athletic departments, it is best to stay hyperfocused on the issue at hand, which is to provide college athletes with name, image, and likeness rights. Separate legislation can be drafted to provide additional rights to college athletes, unless the NCAA takes proactive steps to provide such rights, at a later date.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

Treble The Trouble

One of the proverbial white whales for patent litigators is the often discussed, but rarely spotted in the wild, trebling of infringement damages for willful infringers. The dream of getting a treble damages award has long been shared by contingency lawyers with their smaller patent-owning clients, as well as by aggrieved corporate patentees looking to punish a competitor for egregious infringement. Since it is 2021, and we are in the age of litigation finance, we can add litigation funders to the list of treble damages aspirants as well.  While everyone is free to dream, the reality is that only a miniscule fraction of filed patent cases end up with an enhanced damages award — and even that reward only comes after years of bitter litigation coupled with appeal reversal risk. That said, it is always exciting to see an actual enhanced damages award being granted, if only because the factual circumstances leading up to the award are typically quite juicy.

And the decision in the patent case between EagleView and its competitor Xactware Solutions (as well as Xactware’s parent company, Verisk Analytics) does not disappoint. Both companies compete in the aerial imagery, data analytics, and geographical reporting business, selling their wares to a variety of customers, from roofers to government agencies. Over the years, EagleView made major investments in developing a robust patent portfolio — investments that paid off when it secured a $125 million verdict in September 2019 in a five patent infringement case filed and tried against Xactware in Camden, New Jersey.

A verdict of that size would already be a win in anyone’s book, but EagleView pressed forward based on the jury’s willful infringement finding in an attempt to secure enhanced damages. That effort was awarded by the trial judge a few weeks ago, with the court deciding to: “award Enhanced Damages, to the maximum allowable extent, pursuant to 35 U.S.C. § 284; award reasonable attorneys’ fees, beginning with the filing of motions in limine through trial, pursuant to 35 U.S.C. § 285; award pre-judgment interest, at the prime rate, beginning on September 23, 2015; and award post-judgment interest pursuant to 28 U.S.C. § 1961.” In short, a major bonus for Eagleview to the tune of an additional (pending appeal or settlement) $375 million in damages, plus the various incidentals also awarded.

Five hundred million damages in total damages is not a joke for any company to face, and the court’s willingness to enhance the verdict to the “maximum allowable extent” will surely face Federal Circuit scrutiny. Until then, however, it is worthwhile to consider how the parties ended up in their respective positions, particularly because treble damages awards are so rare. There is of course a lot to sift through in the court’s comprehensive 64-page opinion (worth a read in its entirety), so we will limit our focus to a couple of key highlights — especially those decision points that could be applicable to other patent cases. At the outset, as would be expected, the court lays out the significance of the jury’s willfulness finding as a prerequisite to an award of enhanced damages, before turning to a more comprehensive analysis of the Read factors that “serve as “useful guideposts” in the § 284 analysis.”

While the Read factors were a big part of the enhancement analysis, the court also took pains to sanction the defendants for their decision to “aggressively compete, head-to-head, with EagleView with the express goal of luring away EagleView’s customers and decreasing EagleView’s market share.” Deeming their tactics “egregious infringement behavior” as described in the Halo case, the court recognized that the unfair competition-like tactics supported a finding of “enhanced damages as a … punitive measure.” In fact, the court later noted its discomfort with how the hostility between the parties as competitors spilled over into the legal proceedings. In graphic language, the court describes how the “animus between the attorneys, clients, and witnesses oozed” throughout the litigation. That animus apparently made its way into the trial proceedings, with defendants taking the “regretful” step of trying to introduce inflammatory internal EagleView emails to the jury, despite their lack of probative value. In short, the hostility between the parties, especially as manifested by the defendants’ business and litigation tactics, was a significant contributor to the enhanced damages award.

In a similar vein, the court called out the “unnecessarily litigious and nasty” discovery process. Even though the court refused to only blame the defendants for the discovery conduct, it had no qualms about blaming them for the repeated attempts to introduce “impermissible evidence” and provoke a mistrial before the jury. Add in the fact that defendants already had a weak litigation position on validity, due to a host of failed IPRs that defendants continued to pursue in the form of “repeat challenges,” and conditions were as ripe as they could be for a vexatious litigation type-finding. Which the court entered, to the tune of hundreds of millions of dollars in punitive damages.

Ultimately, we may be hard pressed to find a case with such compelling circumstances to justify a trebling of already-sizable damages for patent infringement. At the same time, the EagleView case proves that courts will take a holistic view of the totality of the infringer’s conduct, both in the marketplace and in the litigation, in determining whether enhancement is appropriate. Where there is little to redeem that conduct, enhanced damages can and will be awarded in patent disputes. At a minimum, we can expect that this decision — especially if it holds up at the Federal Circuit — will embolden patent holders facing intransigent infringers to pursue enhanced damages with renewed resolve. For EagleView, it is clear that they faced a real struggle to see their investments in their IP strategy pay off. If they win on appeal, however, the treble will surely soothe the trouble.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.