Why wasn’t Epic v. Apple a jury trial like Epic v. Google? | 11/1/24

Epic’s antitrust cases against each of Apple and Google resulted in arguably inconsistent outcomes.  In both, Epic challenged app-store commission fees and in-app payment requirements as anticompetitive.  After a bench trial in Epic v. Apple, the district court largely ruled against Epic on its core antitrust claims, finding that, even if Apple’s practices were anticompetitive, Epic had not successfully demonstrated a viable, less restrictive alternative to achieve the pro-competitive justifications for Apple’s practices (e.g., security justifications).  The Ninth Circuit affirmed.  But in Epic v. Google, a jury found Google’s similar restrictions to violate the antitrust laws.

It’s notable that only the Apple case was tried to a jury: Both of Epic’s cases against Apple and Google started as a preliminary injunction complaint for purely equitable relief (so no jury trial right attached).  Both Apple and Google responded by filing contract-based counterclaims for damages and requesting a jury trial on those.  But in the Apple case, Apple subsequently withdrew that jury trial request with Epic’s consent.  See Dkt. 105 (Case No. 4:20-cv-05640) (“Epic and Apple have met and conferred, and the parties agree that Epic’s claims and Apple’s counterclaims should be tried by the Court, and not by a jury.”).  Epic’s Google case, however, was initially set to be tried concurrently with Match Group’s similar case against Google that included a request for damages.  The damages request entitled Match to a jury, but Match settled its case with Google shortly before trial.  Google never withdrew its contract-based counterclaims or its request for a jury trial.  Nonetheless, in a statement to the court on the eve of jury selection, Google requested that its contract-based claims be tried to a jury first, followed by a bench trial on the antitrust claims.  See Dkt. 499 (Case No. 3:20-cv-05671). The court denied that request, leaving Epic able to successfully present its antitrust case to the jury largely due to happenstance.

The right to tell a tale | 10/15/24

In today’s world of intricate, jargon-heavy litigation, it’s refreshing to come across a circuit court opinion sustaining the importance of storytelling at trial. In In re Diet Drugs Prods Liability Litigation, 369 F.3d 293 (3d Cir. 2004), the Third Circuit nicely summed up why a trial must be more than the rote presentation of evidence:

A trial is more than a matter of presenting a series of individual fact questions in arid fashion to a jury.  The jury properly weighs fact questions in the context of a coherent picture of the way the world works.  A verdict is not merely the sum of individual findings, but the assembly of those findings into that picture of the truth.  As the Supreme Court instructed in Old Chief v. United States, evidence “has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict.” 519 U.S. 172, (1997).  Unduly sterilizing a party’s trial presentation can unfairly hamper her ability to shape a compelling and coherent exposition of the facts.

Id. at 314.

Jarkesy 7th Amendment decision changes nothing for non-governmental civil disputes | July 7, 2024

The Supreme Court’s Jarkesy decision held that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.  This was a based on a straight-forward application of Granfinanciera, S. A. v. Nordberg, 492 U.S. 33 (1989) and Tull v. United States, 481 U.S. 412 (1987).  Though civil litigants will likely cite the case for the Chief Justice’s eloquence in summarizing the history and importance of the Seventh Amendment right to a jury trial, the Court said nothing of what its decision means for civil cases not brought by the Government.  The decision will undoubtedly be a sea change for Government attorneys enforcing civil penalty schemes against regulated parties (think FTC, CFTF, FDA, etc.).  But for the rest of us the decision gives lower courts no more or less room to deprive litigants of their jury trial rights (or overturn the jury’s decision if a court disagrees with it). 

Opening statement frameworks for patent cases | November 23, 2023

Patent infringement trials are perceived by many to be dry and technical.  Yet, many attorneys manage to move the jury with a compelling story that results in a significant damages award. Reading their opening statements, it’s clear that their structure falls within one of three categories:

The first category is the “inventory story.” This approach structures the opening statement around the story of the inventor and the “aha moment” preceding it.  The structure is compelling because it’s in consonance with how ordinary people perceive how inventions come about.  The approach was masterfully utilized in Voxer v. Meta (Case No. 1:20-cv-00655, WDTX), wherein the plaintiff’s attorney told a compelling story of a Yale-educated inventor who, while working as an special forces communications sergeant, came up with a patented invention concerning “live messaging” technology “on the battlefield of Afghanistan following 9/11.”  The plaintiff allege that Meta’s video streaming offerings infringed these patents.  After 2.5 hours of deliberation, the jury awarded $174.5 million in running royalties.

The second category is the “technology story.”  These opening statements tell a story about the societal value of the patented technology.  This approach is most often utilized by non-practicing entity (NPE) plaintiffs hoping to move the jury to conclude that the just result is requiring the defendant to pay their fair share for using the NPE’s ground-breaking technology.  The approach is also consistent with the public’s perception that a patent is only granted  for highly valuable inventions deserving of the property right. This approach was used in PanOptis  v. Apple (Case No. 2:19-cv-00066, EDTX) with a story about the value of LTE technology generally, and the value of plaintiff’s patents to the LTE standards specifically.  The opening statement told the story of how every company but Apple acknowledged the value of PanOptis’s patents, so it’s only right for Apple to have to pay too.  The trial resulted in a verdict of $506 million (and then retried the following year, resulting in $300 million verdict).

The third category is the “good guy vs. bad guy” story.  This approach works best when the defendant has not only refused to license a patent but has acted in bad faith during the parties’ dealings, allowing the plaintiff to present a story that highlights evidence that the defendant learned of the value of plaintiff’s intellectual property but never had a genuine intention of paying for it.  This was the case in Viasat v. Space Systems (Case No. 3:12-cv-00260, SD Cal.), where Viasat accused Space Systems of feigning interest in a partnership only to relay the information learned about Viasat’s technology to Viasat’s competitor (who later developed an infringing technology for Space Systems).  The opening statement hammered home the idea that the jury has the power to right the wrong inflicted on Viasat, resulting in a $284 million verdict ($181 million for patent infringement and $102 million for breach of contract).  See Edmond Cahn, 1949, The Sense of Injustice (“the most powerful call is not to do right, but to undo wrong.”).

These approaches highlight the importance of creating a compelling story around any patent infringement trial (and why there is no need for a patent infringement trial to be a dull affair).