Message: 7 MM's?
April 15, 2010
What Plaintiffs Have Joined, The Court May Split Asunder
Plaintiffs—particularly in patent cases—have a penchant for suing dozens of defendants in the same lawsuit under the same patent. We’ve been involved in the defense of a couple of cases in which approximately 100 defendants were named in the original complaint. These multi–defendant cases cause logistical problems for defendants and the court, and can lead to your company being sued as a co–defendant with a close competitor—just the kind of co–defendant you don’t want learning about how your business functions.
Which brings us to the word of the day: joinder—the legal doctrine that says when multiple defendants may be included in a single lawsuit. The general rule in civil litigation is that a claim may be asserted against multiple defendants if those defendants share some or all of the responsibility for the events that give rise to the lawsuit, or if there are questions of law or issues of fact that will come up in the lawsuit that are common to all of the defendants.
That’s all fine, except that different courts have different views on what constitutes a common question of law or fact. Some courts conclude that a plaintiff may sue any number of unrelated defendants under the same patent because there is a common event—e.g., the issuance of the patent by the U.S. Patent and Trademark Office—and/or a common question of law—e.g., what the claims of the patent mean. Others take a different view. An Illinois court on its own initiative ordered a plaintiff to sever its claims against five unrelated plaintiffs, noting, “This is not an instance of appropriate joinder in which (say) one defendant manufactures, while another is a distributor of, the same infringing product.” In similar fashion, a federal court in San Francisco recently ordered a single case against 14 defendants split up where the only common issue was that the plaintiff had accused all of the defendants of mis–marking their products as patented, although there was no relationship among the alleged acts of mis–marking.
While there can be advantages to defendants from joint defense agreements in multi–defendant cases—in cost savings and coordination—there can also be advantages to forcing a plaintiff to make its case against your company specifically. If the facts are right for your business, it may be worth asking the court to sever the heads of a defense hydra.
Which brings us to the word of the day: joinder—the legal doctrine that says when multiple defendants may be included in a single lawsuit. The general rule in civil litigation is that a claim may be asserted against multiple defendants if those defendants share some or all of the responsibility for the events that give rise to the lawsuit, or if there are questions of law or issues of fact that will come up in the lawsuit that are common to all of the defendants.
That’s all fine, except that different courts have different views on what constitutes a common question of law or fact. Some courts conclude that a plaintiff may sue any number of unrelated defendants under the same patent because there is a common event—e.g., the issuance of the patent by the U.S. Patent and Trademark Office—and/or a common question of law—e.g., what the claims of the patent mean. Others take a different view. An Illinois court on its own initiative ordered a plaintiff to sever its claims against five unrelated plaintiffs, noting, “This is not an instance of appropriate joinder in which (say) one defendant manufactures, while another is a distributor of, the same infringing product.” In similar fashion, a federal court in San Francisco recently ordered a single case against 14 defendants split up where the only common issue was that the plaintiff had accused all of the defendants of mis–marking their products as patented, although there was no relationship among the alleged acts of mis–marking.
While there can be advantages to defendants from joint defense agreements in multi–defendant cases—in cost savings and coordination—there can also be advantages to forcing a plaintiff to make its case against your company specifically. If the facts are right for your business, it may be worth asking the court to sever the heads of a defense hydra.
EYES ON IP
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