“Let me check with my client to make sure everything is Kosher.” I have heard this phrase, or some similar iteration, countless times to make sure certain terms or conditions were acceptable or legitimate, but never to make sure something was actually Kosher. It looks like some local lawyers are going to have to do just that to defend against a large class action filed earlier this month.
For the unfamiliar, many Jews keep Kosher and follow the dietary laws of kashrut. These laws spell out the rules and regulations of what foods Jews can eat and how food is prepared so they are consistent with Jewish law (also known as halakha). People who keep Kosher, and as someone who grew up in a Kosher house and who worked as a cashier and bag boy at Fishman’s Kosher Market, I can attest that proper and honest labeling about what is or is not Kosher is essential.
According to allegations in the suit, one of the biggest producers of Kosher food is selling food it claims is 100% Kosher but is really treif. Oy gevalt!
We recently covered Defendant TiZA’s extremely broad view of a proposed protective order in the case. We now have the ACLU’s response (here). Of particular interest is the news that threats and intimidation have apparently caused a third-party witness whom the ACLU wished to depose to cancel the deposition. “Stopping TIZA’s intimidation of potential witnesses is expected to be the subject of motion practice before Judge Graham soon,” counsel for the ACLU foreshadows.
It is now up to U.S. Judge Donovan Frank (D. Minn.) to hammer out the protective order, which is usually a formality (as evidenced by the court’s providing forms) but there’s substantial doubt that TiZA’s broad proposal will pass muster.
Rockwood Retaining Walls, Inc. spent ten years and obviously a lot of money defending claims of patent infringement represented by the boutique Twin Cities IP firm Patterson Thuente Skaar & Christensen (PTSC). The litigation did not go very well for Rockwood. After the ten-year fight, the jury handed down a $24 million verdict against it.
Rockwood turned around and sued PTSC. PTSC moved to dismiss. Rockwood moved to remand the case to state court, where Rockwood had sued PTSC. U.S. District Court Judge Donovan Frank (D. Minn.) first held that the case belonged in federal court because the state law claim of malpractice is heavily intertwined with federal patent law. Judge Frank went on to hold that the complaint was insufficiently pled under the requirements of recent U.S. Supreme Court cases, Iqbal and Twombly to withstand a motion to dismiss.
Rockwood has 30 days to amend its complaint, to put meat on the bones, as it were. For better or for worse (see here too), the requirements of pleading seem substantially augmented by Iqbal/Twombly and federal lawsuits now require more “front loading” in the form of detailed factual allegations (and threshold motion practice).
Well over 90% of cases settle, many on the courthouse steps, some while the jury deliberates, and others, post-verdict while the case is on appeal. Too bad the court system does not permit a “dual track” scenario where the parties settle the case, but also, just out of curiosity, the court decides a pending motion, the outcome of a pending appeal, or a jury deliberates notwithstanding the settlement. Judicial economy would of course be ill-served by what would amount to “advisory opinions” or “mock trials” and also such “dual tracks” would definitely be a recipe for buyers’ remorse (and, consequently, some percentage of attempts to undo settlements).
From time to time, however, situations like this do arise. For example, in a recent case before the U.S. District Court, D. Minn., the parties settled the case while an appeal was pending but, as the logistics of settlement were finalized apparently, the Federal Circuit reversed the District Court. In this case, it does not appear that the settlement was “blown up” but, on the other hand, the Court is in the interesting position of asking the Federal Circuit to delay deadlines for a petition for rehearing on the appellate decision pending finalization of the settlement of the underlying case.