June 23, 1988. Rehearing Denied August 4, 1988. Dissenting Opinion on Rehearing August 25, 1988.
Appeal from the 215th District Court, Eugene Chambers, J.
Maurice L. Bresenhan, Jr., Houston, for appellants.
Sam B. Cobb, Jr., Michael A. Hatchell, Tyler, for appellees.
Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.
This controversy involves the recovery of money for deficiencies in royalty payments. This is the second appeal of this case. The previous opinion of this court is at 683 S.W.2d 859; the opinion of the supreme court is at 705 S.W.2d 690. The supreme court reversed in part the judgment of this court and remanded the cause to the trial court to determine the amount of royalties owed to the Gavendas that were retained by Strata and Northstar, prejudgment interest due thereon and attorney's fees. Although the supreme court noted that the total amount of the royalty deficiency was undisputed, it could not determine from the record what portion of the royalty deficiency was retained by Strata and Northstar. In view of the court's mandate, the issue before the trial court was a narrow one. This appeal follows entry of judgment for appellees, plaintiffs in the trial court. We reverse in part but otherwise affirm.
2. Strata's detailed audit established that 1/2 of the gross production proceeds, less severance taxes and Windfall Profit Taxes, is $2,686,053.97.
3. Strata and/or Scurlock Oil Company, the crude oil purchaser ("Scurlock"), paid the Gavendas, as royalty, $250,342.44; Strata tendered into the registry of the Court $27,469.59 in mid-1983 and Scurlock tendered into the registry of the Court $57,944.72 during July or August, 1986 for total royalty payments of $335,756.75 to the Gavendas listed in the Division Orders.
4. Strata and/or Scurlock paid as royalty $335,756.75 to Billy Blaha (the Mineral Owner and Lessor), and his heirs and devisees, as listed in the division orders.
5. Strata and/or Scurlock paid as overriding royalty $520,422.96 to the various overriding royalty interest owners listed in the division orders, or their heirs and assigns.
6. Strata and/or Scurlock paid $799,684.65 to the working interest owners who are assigns of Strata.
7. After taking into consideration all of the above payments, Strata kept $3,172,901.25.
8. The first payment of production proceeds was received by Strata on or about July 20, 1979 and subsequent payments were received on a monthly basis as oil and gas was produced and sold.
Additionally, the parties stipulated that if the award of unpaid royalties were equal to or greater than $2,014,540, the defendants (appellants) would pay to the Gavendas attorney's fees in the sum of $750,000. Judgment was then entered for plaintiffs for $2,014,540.47 in royalty deficiency, $2,437,114.03 in interest and $750,000 in attorney's fees.
While appellants assign some fourteen points of error, because of the limited issues under the supreme court mandate and the stipulated facts, only two issues merit discussion: (1) whether appellants are entitled to any "offsets and credits for that portion of the Gavendas' royalties disbursed to others" (other than the $335,756.75 royalty paid to Billy Blaha, the mineral owner and lessor) and (2) whether appellees are entitled to "prejudgment interest at the Cavnar rate rather than as prescribed by TEX.REV.CIV.STAT.ANN. art. 5069-1.03" on the total amount of the judgment from July 20, 1979 (the stipulated date of the first payment of production proceeds).
In their first set of points appellants argue they are entitled to a credit on the amount of the royalty deficiency owed to the Gavendas not only of the portion of the Gavendas' royalty paid to Blaha ($335,756.75) but also for the amount of the royalty paid to the various overriding royalty interest owners ($520,422.96) and to the working interest owners ($799,684.65). We do not agree. In this case the supreme court held that the division and transfer orders were not binding on the Gavendas because, contrary to the usual case, there had been no detrimental reliance by appellants upon the orders. Instead, appellants had profited at the royalty owner's expense. 705 S.W.2d at 692. It seems clear, therefore, that the only credits appellants are entitled to are for those royalties belonging to the Gavendas that were paid to others and for which appellants did not profit at the Gavendas' expense.
Both case law and the evidence (specifically the testimony of Strata's representative, Mr. Suhor) support the conclusion that the overriding royalty interests were created out of the working interest. See T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284, 291 (Tex.App. — Austin 1983, writ ref'd n.r.e.). Therefore, the royalty payments made to the seven overriding royalty interest owners were not to be paid out of royalties belonging to the Gavendas but were to be paid out of the working interest. Consequently, appellants are not entitled to a credit for these sums. Regarding appellants' contention that they are entitled to a credit for the "royalties" paid to the working interest owners, we note that the latter were "assigns of Strata" (as stipulated by appellants) and were not even listed in the division or transfer orders upon which appellants argue they relied. Appellants' points one through nine are overruled.
When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable.
In Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 485 (Tex. 1978), the supreme court recognized two separate bases for the award of prejudgment interest: (1) an enabling statute and (2) general principles of equity. Based on the latter, the supreme court in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985) held that a prevailing plaintiff in a personal injury case was entitled to prejudgment interest at the rate that exists on the date judgment is rendered. To solve the problem of when interest is to begin to accrue, as damages are typically incurred intermittently throughout the prejudgment period, the court adopted a specific date.
Attorney's fees are recoverable in suits for royalty payments owed under oil and gas leases. Atlantic Richfield Co. v. Manges, 702 F.2d 85, 87 (5th Cir. 1983); Gerdes v. Mustang Exploration Co., 666 S.W.2d 640, 645 (Tex.App. — Corpus Christi 1984, no writ). Because we see no distinction between allowing attorney's fees on underpaid royalty suits based on leases and those based on deed reservations, we hold the Gavendas can recover their attorney's fees.
705 S.W.2d at 693. In view of this language and the undisputed fact that the damages are readily ascertainable by a simple mathematical calculation of each monthly deficiency in the royalty payment, we hold that prejudgment interest is to be awarded and calculated under art. 5069-1.03. Appellants' tenth point is sustained.
We have reviewed appellants' other points of error and they are without merit. Likewise, appellees' point that we should assess damages for a frivolous appeal is without merit.
Where an error has occurred in a part of the judgment and the matter is ripe for rendition of judgment, we would normally do so. However, since the total amount of prejudgment interest owed involves detailed mathematical calculations based upon the monthly royalty deficiencies, we reverse that portion of the judgment awarding prejudgment interest and remand to the trial court with instructions to award prejudgment interest to appellees in accordance with TEX.REV.CIV.STAT.ANN. art. 5069-1.03 and this opinion. In all other respects, the judgment is affirmed.
In response to appellee's motion for rehearing, I dissent from the majority opinion for its failure to follow this court's decision in Allen v. Allen, 751 S.W.2d 567 (Tex.App. Houston [14th Dist.], 1988, writ filed). In Allen this court cited from our earlier decision in City of Houston v. Wolf, 712 S.W.2d 228 (Tex.App. Houston [14th Dist.] 1986, writ ref'd) wherein we reaffirmed the rule found in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985), by stating "as a matter of law, in all types of cases, awards of prejudgment interest shall be compounded on a daily basis." Id at 229. I believe that the inconsistent effect of the majority's opinion in employing art 5069-1.03 to calculate prejudgment interest and yet failing to compound it daily per this court's holding in Allen and Wolf is improvident.


An employer may be held liable under the Fair Employment and Housing Act (FEHA) for refusing to accommodate an employee’s request to modify his work schedule to permit him to care for a disabled family member.
Luis Castro-Ramirez worked as a delivery driver for Dependable Highway Express, Inc. (DHE). When he was hired, he advised the company that he had a handicapped child he needed to care for in the evenings and, for that reason, was unable to work shifts later in the day. For three years, supervisor Winston Bermudez accommodated Castro-Ramirez’s request. When supervisor Boldomero Munoz-Guillen replaced Bermudez, that accommodation ended. Munoz-Guillen consistently assigned Castro-Ramirez to afternoon delivery routes that interfered with his caretaking responsibilities. When Castro-Ramirez eventually refused to take an afternoon route, he was terminated. Castro-Ramirez sued DHE for disability discrimination, failure to prevent discrimination, and retaliation under FEHA, as well as wrongful termination in violation of public policy. The trial court granted summary judgment in favor of DHE.
Castro-Ramirez appealed, arguing he was protected under FEHA.
The court of appeal reversed, holding that the trial court erred in granting summary judgment to DHE. FEHA provides a cause of action for associational disability discrimination. FEHA defines “physical disability,” at Gov. Code §12926(o), as including a perception “that the person is associated with a person who has, or is perceived to have” a physical disability. Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with someone who has a disability. FEHA’s mandate for reasonable accommodations thus includes accommodations required by employee due to his or her association with a disabled person. Thus, Castro-Ramirez’s need for scheduling accommodation was relevant to and did not bar his discrimination claim. Because Castro-Ramirez presented facts giving rise to triable issues of facts as to both discriminatory motive and pretext and retaliation, the grant of summary judgment in favor of DHE was error. Justice Grimes dissented, declining to find that an employer could be held liable under FEHA for failing to accommodate a nondisabled employee’s need to care for a disabled family member.
Castro-Ramirez v. Dependable Highway Express, Inc.; Second District; August 30, 2016.
The trial court denied CPRR’s petition, finding, among other things, that the county’s board of supervisors did not abuse its discretion in setting the copying fees.
CPRR appealed, contending there was insufficient evidence to support a finding that the fees charged were based on the actual costs of providing the copies. CPRR contended, for example, that there was no evidence showing it cost the county $33 to provide a copy of a deed of trust on the standard 16-page form.
The court of appeal reversed, holding that the trial court erred in denying CPRR’s petition.
The evidence showed the board of supervisors based its decision on a 2001 study that estimated staff spent an average of three minutes processing a copy request and further estimated productive staff time cost the county about $0.99 per minute. Multiplying these two figures, the 2001 study estimated it cost the county an average of $2.97 to process a request for a copy of an official record.
The problem with the board’s decision was that the 2001 study presented information on a per document basis, not a per page basis. Despite the lack of cost-per-page information, the study recommended charging $3 for the first page copied and $2 for each subsequent page.
The absence of evidence addressing costs on a per page basis and the estimate that it cost the county $2.97 to process the average copy request compelled the court to conclude the record lacked evidence showing that the fees charged per page reflected the county’s actual costs. The information in the 2001 study affirmatively showed it did not take five minutes or cost the county $5 to provide a copy of a two-page document. This affirmative showing was coupled with a complete lack of evidence that it took 15 minutes or cost the county $15 to provide a copy of a seven-page document; that it took 45 minutes or cost the county $45 to provide a copy of a 22-page document; or that it took over an hour or costs the county $61 to provide a copy of a 30-page document.
The county’s board of supervisors abused its discretion when it set the copying fees. The court directed the trial court to vacate its decision denying the writ and to instead issue a writ of mandate directing the board to comply with §27366 by resetting the copying fees “in an amount necessary to recover the direct and indirect costs” of providing the copies.
The Fourth District has held that a police department’s inability to show that its officers had received, read, and understood the department’s vehicular pursuit policy precluded a finding that the department was immune from liability for a bystander’s injuries sustained as the result of a high speed police chase.
During a high speed police chase, bystander Mike Morgan was struck and killed by the suspect’s vehicle. His wife and daughter, Rosemary Morgan and Michelle Luna, filed a wrongful death action against the Beaumont Police Department and the City of Beaumont.
The trial court granted the city’s motion for summary judgment, concluding it was immune from liability under Veh. Code §17004.7, which immunizes public entities from liability for injuries resulting from police pursuits of suspected criminals. In granting the motion, the court found the department had a "policy and procedure in place" for purposes of §17004.7.
The court of appeal reversed, holding that the city failed to show compliance with §17004.7.
Section 17004.7(b)(1) provides that a public entity is immune from liability for injuries resulting from a high speed chase where the public entity “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits..." It was undisputed here that the department had a vehicular pursuit policy that complied with the minimum standards set forth in §17004.7(c). At issue, the court found, was whether the department had both "adopted and promulgated" such a policy and "provided regular and periodic training on an annual basis" on its policy, as required in subdivisions (b)(1), (2) and (d). The court found the city failed to show such compliance.
Section 17004.7(b)(2) unambiguously requires that "all peace officers of the public agency certify in writing that they have received, read, and understand" the agency's vehicle pursuit policy. Here, however, according to the city’s own witnesses, the department’s officers had been notified of the policy and a “vast majority” of them had confirmed by email their “receipt” of the policy. Even if all the officers had so certified, the court found, mere receipt was insufficient to comply with §17004.7(b)(2). The officers also had to confirm having both read and understood the policy. In the absence of any evidence from the department that its officers had received, read, and understood the department’s vehicular pursuit policy, the trial court’s grant of summary judgment in favor of the department was error.
Effective April 1, 2016, new regulations under the Fair Employment and Housing Act (“FEHA”) will require employers to develop or modify written antiharassment and discrimination policies.
The new regulations require employers to develop and distribute a written harassment, discrimination and retaliation prevention policy. (2 Cal. Code Regs. §11023.) Employers are already required to distribute either the DFEH-185 Brochure or a policy in compliance with Government Code section 12950.
The court of appeals affirmed in part and vacated in part an order of the district court and remanded. The court held that a plaintiff was entitled to attorney fees in his civil-rights action to invalidate a city's ordinances that banned amplified speech on public sidewalks.
Steve Klein filed a complaint against the City of Laguna Beach under 42 U.S.C. §1983 to invalidate aspects of city ordinances that prohibited the use of sound-amplification devices on public sidewalks. Klein won two appeals in the litigation. The district court awarded Klein nominal damages on three of his four as-applied claims. Klein then moved for attorney fees under both state and federal law. The court found that Klein was a prevailing party under §1988, but denied attorney fees under (I)Farrar v. Hobby(I), 506 U.S. 103 (1992), which held that a prevailing party who seeks a large compensatory award but receives only nominal damages may not be entitled to fees. The court also found that Klein was not entitled to fees under California law because it had entered judgment for the city on Klein’s state claims.
The court of appeals affirmed in part, vacated in part, and remanded, holding that Klein was entitled to attorney fees under federal law.
(I)Farrar(I) created a narrow exception to the standard 12-factor procedure in (I)Hensley v. Eckerhart(I), 461 U.S. 424 (1983), namely, when a plaintiff seeks compensatory damages but receives no more than nominal damages, the court may lawfully award low fees or no fees without either reciting the (I)Hensley(I) factors on reasonableness or calculating the lodestar. Here, the district court found that the (I)Farrar(I) applied to Klein because he received only nominal damages.
However, the court pointed out that Klein's primary goal was to legalize amplified speech in the city, not to recover private compensatory damages. Thus, under Ninth Circuit precedent, without a request for compensatory damages, Klein had no chance of receiving a significant monetary payout. Klein's complaint alleged that both facially and as applied, the ordinances violated the free-speech provisions of the federal and state constitutions.
Further, under Cal. Civ. Code §52, Klein sought only $4,000 as nominal, not compensatory, damages because the statute guaranteed that specified minimum regardless of actual damages. Thus, Klein's attempt to recover those statutory damages did not make him a plaintiff to whom (I)Farrar(I) applied. In any event, Klein’s request for relief under state law had no bearing on the legal framework that applied to §1988 motions because that provision rewards plaintiffs who prevail on federal claims.
In addition, (I)Hensley(I) asserted that “the most critical factor in determining the reasonableness of a fee award is the degree of success obtained.” That was the basis of the (I)Farrar(I) exception. In this case, however, when the relief Klein sought was compared with the results he achieved, it was clear that he succeeded. As the court pointed out in one of Klein's earlier appeals, the city voluntarily repealed all challenged portions of the sound ordinance as a result of Klein's lawsuit.
However, the court rejected Klein's argument that he was entitled to attorney fees under Cal. Code Civ. Proc. §1021.5. The court acknowledged that when California plaintiffs prevail in federal court on California claims, they may obtain attorney fees under §1021.5. Nonetheless, Klein was only a prevailing party on his federal claims. Thus, the federal common law of attorney fees applied.


From the sums appropriated pursuant to section 1070c(b)(1) of this title and not reserved under section 1070c(b)(2) of this title for any fiscal year, the Secretary shall allot to each State an amount which bears the same ratio to such sums as the number of students who are deemed eligible in such State for participation in the grant program authorized by this subpart bears to the total number of such students in all the States, except that no State shall receive less than the State received for fiscal year 1979.
For the purpose of this subsection, the number of students who are deemed eligible in a State for participation in the grant program authorized by this subpart, and the number of such students in all the States, shall be determined for the most recent year for which satisfactory data are available.
The amount of any State’s allotment under subsection (a) for any fiscal year which the Secretary determines will not be required for such fiscal year for the leveraging educational assistance partnership program of that State shall be available for reallotment from time to time, on such dates during such year as the Secretary may fix, to other States in proportion to the original allotments to such States under such part for such year, but with such proportionate amount for any of such States being reduced to the extent it exceeds the sum the Secretary estimates such State needs and will be able to use for such year for carrying out the State plan. The total of such reductions shall be similarly reallotted among the States whose proportionate amounts were not so reduced. Any amount reallotted to a State under this part during a year from funds appropriated pursuant to section 1070c(b)(1) of this title shall be deemed part of its allotment under subsection (a) for such year.
The Secretary shall make payments for continuing incentive grants only to States which continue to meet the requirements of section 1070c–2(b) of this title.
A prior section 1070c–1, Pub. L. 89–329, title IV, § 415B, as added Pub. L. 92–318, title I, § 131(b)(1), June 23, 1972, 86 Stat. 256; amended Pub. L. 94–482, title I, § 123(c)(2), Oct. 12, 1976, 90 Stat. 2094; Pub. L. 96–374, title IV, § 404(b), title XIII, § 1391(a)(1), Oct. 3, 1980, 94 Stat. 1407, 1503, related to allotment among States of amounts for grants to States for State student incentives, prior to the general revision of this part by Pub. L. 99–498.
1998—Subsec. (a)(1). Pub. L. 105–244, § 407(c)(2), inserted “and not reserved under section 1070c(b)(2) of this title” after “1070c(b)(1) of this title”.
Subsec. (b). Pub. L. 105–244, § 407(a)(2)(A), substituted “leveraging educational assistance partnership” for “State student grant incentive”.


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Star Trek II: It is the second film in the Star Trek film series v for vendetta subtitle is a sequel to Star Trek: The Motion Picture The plot features Admiral James T. When Khan escapes from a year exile to exact revenge on Kirk, comic book pages crew of the Enterprise must stop him from acquiring a powerful terraforming device named Genesis.
The Voyage Home After the lackluster critical and commercial response to the first film, series creator Gene Roddenberry was forced out of the sequel's production. Executive producer Harve Bennett wrote the film's original outline, which Jack B. Sowards developed into a full script. Director Nicholas Meyer completed its final script in 12 days, without accepting a writing credit. Meyer's approach evoked the swashbuckling atmosphere of the original series, and this theme was reinforced by James Horner 's musical score.
Leonard Nimoy had not intended to have a role in the sequel, but was enticed back on the promise that his character would be given a dramatic death scene. Negative test audience reaction to Spock's death led to significant v for vendetta subtitle of the ending over Meyer's objections. The production team used various cost-cutting techniques to keep within budget, including utilizing miniature models from past projects and reusing sets, effects footage, and costumes from the first film.
Among the film's technical achievements is being the first feature film to contain a sequence created entirely with computer-generated graphics.
Critical reaction to the film was positive; reviewers v for vendetta subtitle Khan's character, the film's pacing, and the character interactions as strong action replay disc gamecube for wii. Negative reactions focused on weak special effects and some of the acting. The Wrath of Khan is considered by most to be the best film in the Star Trek series, and is often credited with renewing substantial interest in the franchise.
In the yearAdmiral James T. Kirk oversees a simulator session of Captain Spock 's trainees. When the Enterprise enters the Klingon Neutral Zone to reach the ship, it is attacked by Klingon cruisers and critically damaged. The simulation is a no-win scenario designed to test the character of Starfleet officers. Later, Dr.
McCoy joins Kirk on his birthday; seeing Kirk in low spirits, the doctor advises Kirk to get a new command and not grow old behind a desk. Meanwhile, the USS Reliant is on a mission to search for a lifeless planet for testing of the Genesis Device, a technology designed to reorganize matter to create habitable worlds for colonization.
Reliant officers V for vendetta subtitle Pavel Chekov and Captain Clark Terrell beam down to the surface of a possible candidate planet, v for vendetta subtitle they believe to be Ceti Alpha VI; once there, they are captured by genetically engineered tyrant Khan Noonien Singh.
Fifteen years prior see " Space Seed "the Enterprise discovered Khan's ship adrift in space; Kirk exiled Khan and his fellow supermen to Ceti Alpha V after they attempted to take over the Enterprise. Khan blames Kirk for the death of his wife and plans revenge. He implants Chekov and Terrell v for vendetta subtitle indigenous creatures that enter the ears of their victims and render them susceptible to mind control, and uses the officers to capture the Reliant.
V for vendetta subtitle of Genesis, Khan attacks space station Regula I where the device is being developed by Kirk's former lover, Dr. Carol Marcusand their son, David. The Enterprise embarks on a three-week training voyage. Kirk assumes command after the ship receives a distress call from Regula I.
En route, the Enterprise is ambushed and crippled by the Reliantleading to the deaths and injuries of many trainees. Khan hails the Enterprise and offers to spare Kirk's crew if they relinquish all material related to Genesis. Kirk stalls for time and uses the Reliant' s prefix code to remotely lower its shieldsallowing the Enterprise to counter-attack.
Khan is forced to retreat and effect repairs, while the Enterprise limps to Regula I. Kirk, McCoy, and Saavik beam to the station and find Terrell and Chekov alive, along with slaughtered members of Marcus's team. They soon find Carol and V for vendetta subtitle hiding deep inside the planetoid of Regula. Khan, having used Terrell and Chekov as spies, orders them to kill Kirk; Terrell resists the eel's influence and kills himself while Chekov collapses as the eel leaves his body.
Khan then transports Genesis aboard the Reliant. Though Khan believes his foe stranded on Regula IKirk and Spock use a coded message to arrange a rendezvous. Kirk directs the Enterprise v for vendetta subtitle the nearby Mutara Nebula; static discharges inside the nebula render shields useless and compromise targeting systems, making the Enterprise and the Reliant evenly matched.
Spock notes that Khan's tactics are two-dimensional, indicating inexperience in space combat, which Kirk then exploits to critically disable the Reliant. Mortally wounded, Khan activates Genesis, which will reorganize all matter in the nebula, including the Enterprise. Though Kirk's crew detects the activation of Genesis and attempts to move out of range, they will not be able to escape the nebula in time due to the ship's damaged warp drive.
Spock goes to the engine room to restore the warp drive. When McCoy tries to prevent Spock's entry, as exposure to the high levels of radiation would be fatal, Spock incapacitates the doctor with a Vulcan nerve pinch and performs a mind meldtelling him to "remember". Spock successfully restores power to the warp drive, and the Enterprise escapes the explosion. The explosion of Genesis causes the gas in the nebula to reform into a new planet, capable of sustaining v for vendetta subtitle.
After being alerted by McCoy, Kirk arrives in the engine room. Before dying of radiation poisoningSpock urges Kirk not to grieve, as his decision to sacrifice himself to save the ship's crew is a logical one.
A space burial is held in the Enterprise 's torpedo room, and Spock's coffin is shot into orbit around the new planet. The crew leaves to pick up the Reliant 's v for vendetta subtitle crew from Ceti Alpha V. Spock's coffin soft-lands on the surface of the Genesis planet. The Wrath of Khan ' s cast includes all the major v for vendetta subtitle from the original television series, as well as new actors and characters.
In his plot, the crew of the Enterprise travel back in time to set right a corrupted time line after Klingons use the Guardian of Forever to prevent the assassination of John F. Bennett realized he faced a serious challenge in developing the new Star Trek film, partly due to his never having seen the television series.
This immersion convinced Bennett that what the first picture lacked was a real villain; after seeing the episode " Space Seed ", he decided that the character of Khan Noonien Singh was the perfect enemy for the new film. He selected Robert Sallin, a director of television commercials and a college friend, to produce the film.
Sallin's job would be to produce Star Trek II quickly and cheaply. Bennett wrote his first film treatment in November In his version, entitled The War of the GenerationsKirk v for vendetta subtitle a rebellion on a distant world and discovers that his son is the leader of the rebels. Khan is the mastermind behind the plot, and Kirk and son join forces to defeat the tyrant. Bennett then hired Jack B. Sowardsan avid Star Trek fan, to turn his outline into a film-able script.
Sowards wrote an initial script before a writer's strike in Sowards' draft, The Omega Syndromeinvolved the theft of the Federation's ultimate weapon, the "Omega system".
At the story conference the next day, Bennett hugged Minor and declared that he had saved Star Trek. By AprilSowards had produced a draft that moved Spock's death to later in v for vendetta subtitle story,  because of fan dissatisfaction to the event after the script was leaked. Peeples' draft replaced Khan with two new villains named Sojin and Moray; the alien beings are so powerful they almost destroy Earth v for vendetta subtitle mistake. This script was considered inadequate;  the aliens resembled too closely the villains on a typical TOS Star Trek: The Original Series episode.
Meyer wrote the screenplay uncredited and for no pay before the deadline, surprising the actors and producers,  and rapidly produced subsequent rewrites as necessary. One draft, for example, had a baby in Khan's group, who is killed with the others in the Genesis detonation.
Star Trek was human allegory in a space format. That was both its strength and, ultimately, its weakness. I tried through irreverence to make them more human and a little less wooden.
I didn't insist that Captain Kirk go to the bathroom, but did Star Trek have to be so sanctified? Meyer described his script as " 'Hornblower' in outer space", utilizing nautical references and a swashbuckling atmosphere. As a gesture of good faith, Paramount changed the film's title from its original working title, The Vengeance of Khan, as it was too close to the working title for Lucasfilm 's upcoming Star Wars film.
However, as soon as the name change was made, Lucasfilm also changed their Revenge of the Jedi title to Return of the Jedijustifying the change by claiming that the Jedi did not seek revenge, only the Sith. An even earlier working title for the Trek film was The Undiscovered Countrya title which would eventually be used for the sixth film of the franchise.
Meyer attempted to change the look of Star Trek to match the nautical atmosphere he envisioned and stay within budget. The orbital office complex from The Motion Picture was inverted and retouched to become the Regula I space station. Phase II television show, such as bulkheads, railings, and sets, were cannibalized and reused. The ship's design was flipped after Bennett accidentally opened and approved the preliminary Reliant designs upside-down.
Designer Robert Fletcher was brought in to redesign existing costumes and create new ones. Fletcher decided on a scheme of "corrupt colors", using materials with colors slightly off from the pure color. Dye tests of the fabric showed that the old uniforms took three colors well: Fletcher v for vendetta subtitle to use the dark red due to the strong contrast it provided with the background.
The resulting naval-inspired designs would be used in Star Trek films until First Contact The first versions of the uniforms had stiff black collars, but Sallin suggested changing it to a turtleneck, using a form of vertical quilting called trapunto.
The method creates a bas-relief effect to the material by stuffing the outlined areas with soft thread shot via air pressure through a hollow needle. For Khan and his followers, Fletcher created a strong contrast with the highly organized Starfleet uniforms; his idea was that the exiles' costumes were made out of whatever they could find.
Therefore, I tried to make ntg4 212 google look as if they had dressed themselves out of pieces of upholstery and electrical equipment that composed the ship. Fletcher also designed smocks for the Regula I scientists, and civilian clothes for Kirk and McCoy that were designed to look practical and comfortable.
Meyer had a "No Smoking" sign added to the Enterprise ' s bridge, which he recalled "Everyone had a fit over [ They've been smoking for four hundred years, you think it's going to stop in the next two?
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b. A law enforcement officer as defined in §222(15) of Title 11, who files a petition alleging that the respondent poses a danger of causing personal injury to self or others by having a firearm within the person’s custody or by controlling, owning, purchasing, possessing, or receiving a firearm.
(2) “Respondent” means the person, as defined in §222(21) of Title 11, who is alleged to pose a danger of causing injury to self or others by having a firearm within the person’s custody or by controlling, owning, purchasing, possessing, or receiving a firearm.
(3) “Lethal violence protective order” means an order issued by the Court prohibiting and enjoining a person from having a firearm within the person’s custody or controlling, owning, purchasing, possessing, or receiving a firearm.
§ 5002A. Commencement of action; procedure.
(a) A request for relief under this section is initiated by the filing of a verified petition by the petitioner asking the Court to issue a lethal violence protective order against the respondent.
(b) A petition for a lethal violence protective order shall be filed in the county where the respondent resides.
(c) Forms and instructions for initiating a proceeding under this section shall be available from the Prothonotary’s office. Assistance from court staff or court volunteers shall be available during business hours to assist the parties with all papers which may be filed in connection with a proceeding under this part. Any assistance or information provided by court staff or court volunteers under this part does not constitute the practice of law .
(d) All forms and instructions developed for use by the parties to a proceeding under this part shall contain simple, understandable language.
§ 5003A. Ex parte orders and emergency hearings.
(2) Identify the location of any firearms believed that the petitioner currently owns, possesses or controls.
(b) An emergency lethal violence protective order may be issued on an ex parte basis, that is, without notice to the respondent if the Petitioner certifies in writing the efforts, if any, which have been made to give notice to the respondent or the reasons supporting the claim that notice should not be required.
(c) An emergency hearing held on an ex parte basis shall be held within 24 hours of the filing of the petition if the Court is open, If the Court is not open within 24 hours of the filing of the petition, the emergency hearing will be held on the first day that the Court is open.
(d) If the Court finds probable cause to believe that the respondent poses an immediate and present danger of causing injury to self or others by owning, possessing, controlling, purchasing or receiving a firearm, the Court shall issue an emergency lethal violence protective order.
(1) State on its face that all firearms owned by the respondent or in the respondent’s possession or control shall be relinquished immediately to a police officer if requested by the police officer upon personal service of the emergency lethal violence protective order. If no request is made by a police officer, the relinquishment shall occur within 24 hours of personal service to the respondent of the order at any staffed police station or a federally-licensed firearms dealer located in Delaware. If the respondent is incarcerated at the time personal service is effectuated, the 24-hour relinquishment period shall commence at the time of release from incarceration .
(2) S tate on its face that the respondent is prohibited from possessing, controlling, purchasing or receiving firearms under Delaware law.
a. A certification, under penalty of prosecution for false written statement under § 1233 of Title 11, that the respondent did not own, possess, or control any firearms at the time of the order and currently does not own, possess, or control any firearms.
b. A copy of a proof of transfer showing, for each firearm owned, possessed, or controlled by the respondent at the time of the order, that the firearm was relinquished to a police officer or a federally-licensed firearms dealer located in Delaware.
c. A certification, under penalty of prosecution for false written statement under § 1233 of Title 11, for each firearm owned, possessed, or controlled by the respondent at the time of the order, that the respondent is unable to obtain access to the firearm, specifying the location of the firearm and the reason why the respondent is unable to obtain access.
(f) If the respondent fails to file one of the documents pursuant to subsection (e)(3), the Court shall issue an Order, that shall identify, as particularly as possible, the location and description of the type of firearms owned, possessed, or controlled authorizing a law-enforcement officer to search for and seize the firearms in the locations described therein.
(g) The Court shall provide to the petitioner a copy of the documents the respondent files with the Court pursuant to subsection (e)(3) of this section within 48 hours of filing or, if the Court will not be open within 48 hours of the filing, the first day that the Court is thereafter open.
(h) A police officer, as defined in § 1911 of Title 11, or a federally-licensed firearms dealer located in Delaware taking possession of firearms relinquished by a respondent pursuant to an emergency lethal violence protective order under this section shall issue a proof of transfer to the respondent and to the Court which issued the emergency lethal violence protective order. The proof of transfer shall list the name of the respondent; date of the transfer; and make, model, and serial number of each firearm relinquished. The police agency identified in § 1911 of Title 11 or the federally-licensed firearms dealer located in Delaware shall dispose of the firearm or return the firearm to the respondent only subsequent to the expiration or termination of the lethal violence protective order in accordance with § 2311 of Title 11.
(i) No records, data, information, or reports containing the name, address, other identifying data of either the respondent, petitioner, or recipient of the relinquished firearms or which contain the make, model, caliber, serial number, or other identifying data of any firearm which are required, authorized, or maintained pursuant to this section, shall be subject to disclosure or release pursuant to the Freedom of Information Act, Chapter 100 of Title 29.
(j) An emergency lethal violence protective order issued under this section shall be served immediately upon the respondent by personal service, any form of mail, or in any manner directed by the Court, including publication, if other methods of service have failed or deemed to have been inadequate. A copy of the order shall also be given to the petitioner after the hearing, before leaving the courthouse.
(k) When an emergency lethal violence protective order has been issued, a full hearing in compliance with §5004A shall be held within 10 days. The Court may extend an emergency order as needed, but not to exceed 30 days, to effectuate service of the order or where necessary to ensure the protection of the respondent or others.
(a) A petitioner may request a lethal violence protective order by filing an affidavit or verified pleading, under penalty of prosecution for false written statement under §1233 of Title 11, alleging that the respondent poses a significant danger of causing personal injury to self or others in the near future by owning, possessing, controlling, purchasing or receiving a firearm. The petition shall also describe the number, types, and locations of any firearms presently believed by the petitioner to be owned, possessed or controlled by the respondent.
(b) Upon receipt of a petition for a lethal violence protective order, the Court shall order a hearing within 30 days.
(1) A recent threat of violence or act of violence by the respondent directed toward self or others.
(2) A recent violation of an emergency protective order issued pursuant to 10 Del. C. § 1043 or of an unexpired protective order issued pursuant 10 Del. C. § 1044.
(3) A pattern of violent acts or violent threats within the past 12 months, including threats of violence or acts of violence by the respondent directed toward self or others.
(4) The unlawful and reckless use, display, or brandishing of a firearm by the respondent.
(5) The history of use, attempted use, or threatened use of physical force by the respondent against another person.
(6) Any prior arrest of the respondent for a felony offense.
(7) Any history of a violation by the respondent of an emergency protective order issued pursuant to 10 Del. C. § 1043 or of a protective order issued pursuant to 10 Del. C. § 1044.
(8) Evidence of the abuse of controlled substances or alcohol by the respondent.
(9) Evidence of recent acquisition of firearms, ammunition, or other deadly weapons.
(e) At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent poses a significant danger of injury to self or others by owning, possessing, controlling, purchasing or receiving a firearm.
(f) If the Court finds that there is clear and convincing evidence to issue a lethal violence protective order, the Court shall issue a lethal violence protective order that shall be in effect for up to one year, unless terminated or renewed pursuant to § 5006A of this section.
(1) State on its face that all firearms owned by the respondent or in the respondent’s possession or control shall be relinquished immediately to a police officer if requested by the police officer upon personal service of the lethal violence protective order. If no request is made by a police officer, the relinquishment shall occur within 24 hours of personal service of the order at any staffed police station or a federally-licensed firearms dealer located in Delaware, unless the person is incarcerated at the time personal service is received, in which case the 24 hour relinquishment period shall commence at the time of release from incarceration .
(h) If the respondent fails to file one of the documents pursuant to subsection (g)(3), the Court shall issue an Order, that shall identify, as particularly as possible, the location and description of the type of firearms owned, possessed, or controlled authorizing a law-enforcement officer to search for and seize the firearms in the locations described therein.
(i) The Court shall provide to the petitioner a copy of the documents the respondent files with the Court pursuant to subsection (g)(3) of this section within 48 hours of filing or, if the Court will not be open within 48 hours of the filing, the first day that the Court is thereafter open.
(j) A police officer, as defined in § 1911 of Title 11, or a federally-licensed firearms dealer located in Delaware taking possession of firearms relinquished by a respondent pursuant to a lethal violence protective order under this section shall issue a proof of transfer to the respondent and to the Court issuing the lethal violence protective order. The proof of transfer shall list the name of the respondent; date of the transfer; and make, model, and serial number of each firearm relinquished. The police agency identified in § 1911 of Title 11 or the federally-licensed firearms dealer located in Delaware shall dispose of the firearm or return the firearm to the respondent only subsequent to the expiration or termination of the protective order in accordance with § 2311 of Title 11.
(k) No records, data, information, or reports containing the name, address, other identifying data of either the respondent, petitioner, or recipient of the relinquished firearms or which contain the make, model, caliber, serial number, or other identifying data of any firearm which are required, authorized, or maintained pursuant to this section, shall be subject to disclosure or release pursuant to the Freedom of Information Act, Chapter 100 of Title 29.
(l) If the Court finds that there is not clear and convincing evidence to support the issuance of a lethal violence protective order, the Court shall dissolve any emergency lethal violence protective order then in effect.
(m) When the Court issues a lethal violence protective order under this section, the court shall inform the respondent that he or she is entitled to one hearing to request a termination of the order, pursuant to § 5006A of this section, and shall provide the respondent with a form to request such a hearing.
(n) In those cases where the respondent is not present for the hearing, a lethal violence protective order issued shall be served immediately upon the respondent, by personal service, any form of mail, or in any manner directed by the Court, including publication, if other methods of service have failed or deemed to have been inadequate. A certified copy of the order shall also be given to the petitioner after the hearing, before leaving the courthouse. If the order recites that the respondent appeared in person before the Court, the necessity for further service is waived and proof of service of the order is not necessary; in those cases, the respondent shall be given a copy of the order before leaving the courthouse.
§ 5005A. Enforcement; sanctions for violation of order.
(a) The provisions of 10 Del. Code § 1046, relating to entry of protective orders into the Delaware Justice Information System, and the enforcement of orders, shall apply to all lethal violence protective orders issued under this part, except that the lethal violence protective order need not identify a person protected.
(b) It shall be unlawful for a petitioner to file for a lethal violence protective order knowing the information in the petition to be false pursuant to §1233 of Title 11 which is class A misdemeanor.
§ 5006A. Termination and renewal.
(a) A person subject to a lethal violence protective order issued under this section may submit one written request at any time during the effective period of the order for a hearing to terminate the order.
(2) If the Court finds after the hearing that the respondent has met his or her burden, the Court shall terminate the order.
(b) A petitioner may request a renewal of a lethal violence protective order at any time within the three months before the expiration of a lethal violence protective order.
(1) The Court may, after notice and a hearing, renew a lethal violence protective order issued under this part if the petitioner proves, by clear and convincing evidence, that the respondent continues to pose a significant danger of causing personal injury to self or others in the near future by owning, possessing, controlling, purchasing or receiving a firearm.
(2) In determining whether to renew a lethal violence protective order issued under this part, the Court shall consider evidence of the facts identified in §5004A(c) and any other evidence of an increased risk for violence, including evidence of any of the facts identified in § 5004A(c).
(3) At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent continues to pose a significant danger of causing personal injury to self or others in the near future by owning, possessing, controlling, purchasing or receiving a firearm.
(4) If the renewal petition is supported by clear and convincing evidence, the Court shall renew the lethal violence protective order for up to one year.
(5) The renewal of a lethal violence protective order issued pursuant to this section shall have a duration of up to one year, subject to termination by further order of the Court at a hearing held pursuant to paragraph (a) of this section, or further renewal pursuant to this section.
§ 5007A. A Return and Disposal of Firearms.
§ 5008A. Nonpreclusion of remedies; limitation on liability.
(a) Nothing in this part shall preclude a petitioner or law-enforcement officer from removing weapons pursuant to other authority, or filing criminal charges when probable cause exists.
(b) There shall be no civil liability for any law enforcement officer who, in good faith, does not seek a lethal violence protection order.
(c) A law enforcement agency and/or federally-licensed firearms dealer shall be immune from civil or criminal liability for any damage or deterioration of firearms stored or transported pursuant to this section. This subsection shall not apply if the damage or deterioration occurred as a result of recklessness, gross negligence, or intentional misconduct by the law enforcement agency or federally-licensed firearms dealer.
The Superior Court shall have jurisdiction of proceedings under this part.
Section 3. This Act shall take effect one year from the date of its enactment.
This Act would allow the Superior Court to issue a lethal violence protection order where a family member or a law enforcement officer can show that the respondent poses a danger to self or others by owning, possessing, controlling, purchasing or receiving a firearm. The order would require respondent to refrain from exercising custody or control over firearms during the order’s duration. The order would also authorize law enforcement to search for and seize firearms in respondent’s possession provided petitioner can describe the type and location of said firearm with sufficient particularity. Such an order may be issued at an emergency, ex parte hearing, but a full hearing must then be held within ten days. The burden of proof at the full hearing is clear and convincing evidence. The protective order may last up to one year, and may be renewed upon petition, or terminated early if the respondent can show by clear and convincing evidence that such person is no longer a significant danger to self or others.


COPYRIGHT MATERIAL OMITTED Alfred R. Fabricant, Ostrolenk, Faber, Gerb & Soffen, LLP, of New York, NY, argued for plaintiff-appellant. With him the brief was Max Moskowitz.
John A. Artz, Artz & Artz, P.C., of Southfield, MN, argued for defendant-cross appellant. With him on the brief were John S. Artz and Robert P. Renke.
Before LOURIE, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.
Rosco, Inc. ("Rosco") appeals the decision of the United States District Court for the Eastern District of New York finding Rosco's design patent, United States Design Patent No. 346,357 ("the '357 patent"), invalid as functional and obvious, finding that Rosco abandoned its claim that Mirror Lite Company ("Mirror Lite") inequitably procured its utility patent, United States Patent No. 5,589,984 ("the '984 patent"), and rejecting Rosco's claims under 15 U.S.C. § 1125(a) of tortious interference with business relations, misrepresentation, and common law trademark infringement. Rosco, Inc. v. Mirror Lite Co., 139 F. Supp. 2d 287 (E.D.N.Y. 2001). Mirror Lite cross-appeals the district court's decision that the claims of the '984 patent are invalid. Because the district court erred in finding the '357 patent invalid as functional and obvious; finding the claims of the '984 patent invalid under 35 U.S.C. §§ 102(e) and 102(g); and finding that Rosco abandoned its inequitable conduct claims, we reverse in part, vacate in part, and remand. On remand, the district court should make findings and conclusions on all relevant issues as required by Federal Rule of Civil Procedure 52. Fed. R. Civ. P. 52. We affirm the district court's rejection of Rosco's claims under 15 U.S.C. § 1125(a) of misrepresentation and common law trademark infringement.
Rosco and Mirror Lite are competitors in the school bus mirror market. This dispute involves "cross-view" mirrors, which are convex, three-dimensional, curved surface mirrors mounted on the front fender of a school bus, enabling the bus driver to view the front and passenger side of a school bus. Rosco filed a complaint on November 19, 1996, and amended the complaint on December 27, 1996 (the "Rosco I case"). A second civil action was subsequently filed by Rosco in October 1999 (the "Rosco II case"). Mirror Lite asserted a counterclaim in the second action. The two cases were consolidated.
Each party owns a patent that it alleged was infringed by the other. Rosco raised a variety of other claims.
Rosco's '357 design patent relates to an oval, highly convex cross-view mirror with a black, flat metal backing. Rosco applied for the patent on April 14, 1992, and the patent issued on April 26, 1994. Rosco alleged that Mirror Lite infringed the '357 design patent. Mirror Lite argued that the '357 design patent was invalid as functional and therefore was not infringed.
Mirror Lite's '984 utility patent relates to an oval cross-view mirror with a varying radius of curvature along the major axis of the convex ellipsoid mirror lens. Mirror Lite filed the parent application that led to the '984 patent on September 9, 1992. The '984 patent issued on December 31, 1996. Rosco requested declaratory judgment that all claims of the '984 patent were invalid as anticipated under 35 U.S.C. § 102(a), invalid for failure to name the true inventor under 35 U.S.C. § 102(f), invalid as previously invented by another under 35 U.S.C. § 102(g), and unenforceable due to Mirror Lite's inequitable conduct in procuring the patent.1 Mirror Lite counterclaimed that Rosco infringed the '984 patent.
Rosco also alleged that Mirror Lite: engaged in tortious interference with business relations by procuring the '984 patent through inequitable conduct; engaged in misrepresentation by publishing disparaging statements about Rosco's mirrors; and engaged in common law trademark infringement by using the marks "Eagle Eye" and "Mini Eagle Eye" to compete with Rosco's "Hawk Eye" and "Mini Hawk Eye" products.
In the Rosco I case, Mirror Lite moved for summary judgment on all claims, and the district court granted summary judgment as to Rosco's claim of tortious interference with business relations. Rosco, 139 F. Supp. 2d at 294-95. The court denied Rosco's motion for reconsideration on August 19, 1999. Id. However, the court later effectively granted reconsideration and reinstated the claim of tortious interference with business relations. Id. at 304 n. 14.
After a bench trial, the district court: found the '357 design patent invalid as functional and obvious under 35 U.S.C. § 103; found the claims of the '984 patent invalid under 35 U.S.C. §§ 102(e) and 102(g); did not reach Rosco's claim for design patent infringement because it found the '357 patent invalid; did not reach Mirror Lite's claim of patent infringement because it found the '984 patent claims invalid; did not address the validity of the '984 patent under 35 U.S.C. §§ 102(a), 102(f), and 103; found that Rosco abandoned its inequitable conduct claims; and rejected Rosco's claims of misrepresentation and common law trademark infringement.
The parties timely appealed. We have jurisdiction under 28 U.S.C. § 1295(a) (1).
This case presents an example of the need for clear findings of fact and conclusions of law. Federal Rule of Civil Procedure 52(a) requires that " [i]n all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon." Fed. R. Civ. P. 52(a). We have noted the importance of compliance with these requirements, recognizing that one of the purposes of Rule 52(a) is to "provide the appellate court with an adequate basis for review." Gechter v. Davidson, 116 F.3d 1454, 1458, 43 USPQ2d 1030, 1033 (Fed. Cir. 1997); see also Pretty Punch Shoppettes, Inc. v. Hauk, 844 F.2d 782, 784, 6 USPQ2d 1563, 1565 (Fed. Cir. 1988) (" [T]he trial court must provide sufficient factual findings such that we may meaningfully review the merits of its order."). Here, the district court failed in several instances to make sufficient findings of fact and conclusions of law to provide the necessary predicate for judicial review.
We note also that the parties in this case have made prolix, confusing, and contentious arguments, which no doubt made it particularly difficult for the district court to address the issues with clarity and precision. We trust that, on remand, counsel will provide the necessary assistance to the district court by appropriately narrowing the issues and coherently explaining their respective positions.
"A patent shall be presumed valid." 35 U.S.C. § 282 (2000). To overcome this presumption of validity, the party challenging a patent must prove facts supporting a determination of invalidity by clear and convincing evidence. Apotex USA, Inc. v. Merck & Co., 254 F.3d 1031, 1036 (Fed. Cir. 2001), cert. denied, 534 U.S. 1172, 122 S. Ct. 1196, 152 L. Ed. 2d 136 (2002) (citing Am. Hoist & Derrick Co. v. Sowa & Sons, Inc., 725 F.2d 1350, 1360, 220 USPQ 763, 770 (Fed. Cir. 1984)).
Rosco's '357 design patent shows a highly convex, curved-surface, three-dimensional oval mirror with a black, flat metal backing. In May 1992, Rosco began manufacturing the mirror of the '357 patent under the name "Eagle Eye."
Rosco alleged that Mirror Lite infringed the '357 patent by manufacturing and selling a duplicate of Rosco's mirror under the name "Hawk Eye." Mirror Lite argued that the '357 patent was invalid as functional. The district court found the '357 design patent invalid as functional. Rosco, 139 F. Supp. 2d at 296.
We apply a stringent standard for invalidating a design patent on grounds of functionality: the design of a useful article is deemed functional where "the appearance of the claimed design is `dictated by' the use or purpose of the article." L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1123, 25 USPQ2d 1913, 1917 (Fed. Cir. 1993) (citing In re Carletti, 51 C.C.P.A. 1094, 328 F.2d 1020, 1022, 140 USPQ 653, 654 (CCPA 1964)). " [T]he design must not be governed solely by function, i.e., that this is not the only possible form of the article that could perform its function." Seiko Epson Corp. v. Nu-Kote Int'l, Inc., 190 F.3d 1360, 1368, 52 USPQ2d 1011, 1017 (Fed. Cir. 1999). "When there are several ways to achieve the function of an article of manufacture, the design of the article is more likely to serve a primarily ornamental purpose." L.A. Gear, 988 F.2d at 1123, 25 USPQ2d at 1917 (citations omitted). That is, if other designs could produce the same or similar functional capabilities, the design of the article in question is likely ornamental, not functional. Invalidity of a design patent claim must be established by clear and convincing evidence. Id.
The district court found that because the mirror's oval shape, the asserted point of novelty of the '357 patent, "of necessity dictates its function," the '357 patent was invalid as functional.2 Rosco, 139 F. Supp. 2d at 296. The court based its determination of functionality on its findings that the mirror of the '357 patent offered a unique field of view (when compared to Mirror Lite's Bus Boy mirror); that Rosco represented to the Patent and Trademark Office that its mirror provided a superb field of view; and that Rosco marketed the mirror of the '357 patent as more "aerodynamic" than other cross-view mirrors. Id.
The mere fact that the invention claimed in the design patent exhibited a superior field of view over a single predecessor mirror (here, the Bus Boy) does not establish that the design was "dictated by" functional considerations, as required by L.A. Gear. The record indeed reflects that other mirrors that have non-oval shapes also offer that particular field of view. Similarly, nothing in the record connects the oval shape of the patented design with aerodynamics, and the record shows that other non-oval shaped mirrors have the same aerodynamic effect.
Mirror Lite has not shown by clear and convincing evidence that there are no designs, other than the one shown in Rosco's '357 patent, that have the same functional capabilities as Rosco's oval mirror. Under these circumstances it cannot be said that the claimed design of the '357 patent was dictated by functional considerations. We reverse the district court and hold that the '357 patent claim was not shown to be invalid on functionality grounds.
The district court in a footnote further found the '357 patent claim invalid as obvious, stating simply that "the '357 Patent is invalid as obvious." Rosco, 139 F. Supp. 2d at 296 n. 5. No findings to support this holding of obviousness were made. A finding of obviousness cannot be made without determining whether the invalidating prior art shows or renders obvious the ornamental features of the claimed design. OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1404, 43 USPQ2d 1641, 1646 (Fed. Cir. 1997).3 Because the district court failed to make the necessary findings as to obviousness, we remand for compliance with Rule 52. Should the district court find the '357 patent not invalid, the issue of whether that patent was infringed would have to be addressed by the district court.
Mirror Lite's '984 patent claims an oval cross-view mirror with a varying radius of curvature along the major axis of the lens. Rosco sought a declaratory judgment that the '984 patent claims were invalid under 35 U.S.C. §§ 102 and 103, and that the '984 patent was unenforceable on grounds of inequitable conduct.
(a) a mirror lens having a reflective outer surface and a non-reflective rear surface, the mirror lens comprising a mirror body which terminates in an oval perimetral edge, the edge surrounds the reflective surface and the non-reflective surface of the mirror lens, the mirror body being a substantially convex ellipsoid having a major axis and a minor axis which intersects with the major axis, the major axis having a varying radius of curvature, which radius decreases from the intersection with the minor axis to the perimetral edge.
'984 patent, col. 4, ll. 21-31 (emphasis added). Claim 1 thus requires a "varying radius of curvature" along the major axis of the lens. Rosco argued that if the prior art disclosed the varying radius of curvature, then claim 1 is invalid. It made the same argument with respect to dependent claims 2-3 and 6-8. The district court agreed. Rosco, 139 F. Supp. 2d at 302.
When determining the validity of the claims of a patent, each claim must be separately considered: Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim.... The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting invalidity.
35 U.S.C. § 282 (2000) (emphasis added). Here, the district court found claims 1-3 and 6-8 of the '984 patent invalid without explicitly addressing and analyzing each claim, apparently addressing only independent claim 1.4 There is no evidence that Mirror Lite conceded that those claims stand or fall with independent claim 1. The district court erred by not separately addressing each claim, and on remand should do so. Because we find that the district court's grounds for finding invalidity are not substantiated, we need not consider the claims individually here.
The district court found that the '357 patent inherently disclosed the invention of the '984 patent under 35 U.S.C. § 102(e), such that one skilled in the art would read the '357 patent as disclosing a mirror with varying radius of curvature: "the '357 Patent shows a mirror with a varying radius of curvature based on the inherent nature of such a characteristic." Rosco, 139 F. Supp. 2d at 301. The district court concluded that "one skilled in the art could produce the results claimed in the '984 Patent simply by practicing the '357 Patent, i.e., the result flows naturally from the express disclosures of the '357 Patent whether or not others are aware of it." Id. at 300. In reaching this conclusion, the district court relied on Benjamin Englander's5 testimony that "Rosco would have preferred to have a mirror that had a constant radius of curvature, ... [but] the vacuum thermoforming process used to manufacture such mirrors of necessity yields a mirror with a varying radius of curvature." Id. at 301-02. Noting that " [t]his evidence was not contradicted at trial," the court concluded that "anyone practicing the '357 patent by attempting to manufacture it would, on the uncontradicted evidence at trial, come up with a mirror with a varying radius of curvature." Id. at 301.
We disagree. Under the doctrine of inherency, if an element is not expressly disclosed in a prior art reference, the reference will still be deemed to anticipate a subsequent claim if the missing element "is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill." Cont'l Can Co. v. Monsanto Co., 948 F.2d 1264, 1268, 20 USPQ2d 1746, 1749 (Fed. Cir. 1991). "Inherent anticipation requires that the missing descriptive material is `necessarily present,' not merely probably or possibly present, in the prior art." Trintec Indus., Inc. v. Top-U.S.A. Corp., 295 F.3d 1292, 1295, 63 USPQ2d 1597, 1599 (Fed. Cir. 2002) (quoting In re Robertson, 169 F.3d 743, 745, 49 USPQ2d 1949, 1950-51 (Fed. Cir. 1999)). The vacuum thermoforming process, however, is not specified in the '357 patent. Thus, the question is not whether the manufacture of the mirror using this process inherently results in a varying radius of curvature along the major axis, but whether one skilled in the art would read the '357 patent as inherently disclosing the invention of the '984 patent, that is, whether one skilled in the art would read the '357 patent as showing a mirror of varying radius of curvature along the major axis. There is no evidence in the record to support a finding that one skilled in the art would so read the '357 patent. Englander's testimony only purports to establish that mirrors manufactured using the vacuum thermoforming process yield a varying radius of curvature along the major axis, but does not purport to establish that the mirror of the '357 patent can only be manufactured by that particular process. At oral argument, counsel for Rosco could not identify any evidence that one skilled in the art would read the '357 patent as inherently disclosing a mirror with varying radius of curvature along the major axis. We accordingly reverse the district court's conclusion that the '984 patent is invalid under section 102(e).
The district court also found claims 1-3 and 6-8 of the '984 patent invalid under section 102(g) in view of Rosco's pre-1992 products, finding that Rosco made the invention of the '984 patent before the '984 critical date. A patent is invalid under section 102(g) (2) if "before the applicant's invention thereof the invention was made in this country by another who had not abandoned, suppressed, or concealed it." 35 U.S.C. § 102(g) (2) (2000); Dow Chem. Co. v. Astro-Valcour, Inc., 267 F.3d 1334, 1339, 60 USPQ2d 1519, 1522 (Fed. Cir. 2001). Prior invention by another invalidates a claimed invention under section 102(g) (2) if the prior inventor either reduced the invention to practice first, or conceived of the invention first and subsequently reduced the invention to practice. However, " [i]t is well-settled that conception and reduction to practice cannot be established nunc pro tunc. There must be contemporaneous recognition and appreciation of the invention...." Estee Lauder Inc. v. L'Oreal, S.A., 129 F.3d 588, 593, 44 USPQ2d 1610, 1614 (emphasis in original) (citing Breen v. Henshaw, 472 F.2d 1398, 1401, 176 USPQ 519, 521 (CCPA 1973); see also Dow Chem. Co. v. Astro-Valcour, Inc., 267 F.3d 1334, 1341, 60 USPQ2d 1519, 1523 (Fed. Cir. 2001) (" [T]here is no conception or reduction to practice where there has been no recognition or appreciation of the existence of the [invention]."). The question is whether Rosco actually recognized and appreciated a mirror with varying radius of curvature along the major axis of the lens. Though the issue is disputed, particularly with regard to trial exhibit 110, we may assume for present purposes that the earlier Rosco product did in fact have a varying radius of curvature along the major axis of the lens. But there is no evidence that this feature of the invention was recognized and appreciated.
At oral argument we requested Rosco's counsel to identify any evidence that, at the time of invention, Rosco recognized that the mirror it designed had a varying radius of curvature along the major axis, even though Rosco intended to design a mirror with constant curvature along the major axis that would not distort the images in the mirror lens. Counsel pointed to the testimony of Englander, who was asked: "When you came up with the idea of this oval mirror, did you have any part of your idea, did it relate to this concept of varying curvature?" Englander answered: "The varying curvature, in my mind, it was automatic because this is the process of producing these lenses which has to have, by nature, a various curvature." Englander's testimony is self-interested and lacks corroboration. It is well established that a party claiming his own prior inventorship must proffer evidence corroborating his testimony. Sandt Tech. Ltd. v. Resco Metal & Plastics Corp., 264 F.3d 1344, 1350, 60 USPQ2d 1091, 1094 (Fed. Cir. 2001). Englander's testimony is insufficient to constitute clear and convincing evidence that Rosco conceived the invention of the '984 patent before the '984 critical date. We therefore reverse the district court's conclusion that the '984 patent is invalid under section 102(g).
The district court did not decide whether the '984 patent was invalid under sections 102(a), 102(f), or 103, stating that " [s]ince the '984 Patent is invalid under 35 U.S.C. § 102(e) and (g), there is no need to consider claims of its invalidity under 35 U.S.C. §§ 102(a), (f), or 103." Rosco, 139 F. Supp. 2d at 303 n. 13. On remand, the district court should analyze the validity of each claim and should consider validity under sections 102(a), 102(f), and 103.
Finally, the district court rejected Rosco's claim that the '984 patent was unenforceable for inequitable conduct, stating that "Rosco is not entitled to judgment that the '984 patent was inequitably procured." Rosco, Inc. v. Mirror Lite Co., No. CV-96-5658 and CV-99-6211, at 2 (E.D.N.Y. Feb. 21, 2001) (final judgment). The district court made no findings or conclusions supporting this result, and did not expressly consider this claim.6 Again we hold that a remand is required for necessary findings and conclusions as to each claim.
If on remand the district court finds any of the '984 patent claims not invalid and not unenforceable, the issue of whether those claims were infringed would have to be addressed by the district court.
[T]he Court informed counsel for both parties that the summary judgment opinion ... did not dispose of Rosco's claim of tortious interference with business relations ... and invited the parties to submit briefing on this issue. Rosco has not pursued this cause of action at all in either of its two post-trial briefs. Therefore, the Court must consider that Rosco has abandoned this cause of action.
Rosco, 139 F. Supp. 2d at 304 n. 14. At oral argument Mirror Lite, with commendable candor, agreed that this claim had not been abandoned, because Rosco had in fact briefed the issue in its post-trial brief. We agree, and remand for findings and conclusions relating to this claim based on the record established at trial.
The district court dismissed on summary judgment Rosco's claim that Mirror Lite engaged in unfair competition under 15 U.S.C. § 1125(a) by publishing disparaging statements about Rosco's oval mirror, Rosco, Inc. v. Mirror Lite Co., No. CV-96-5658, at 30 (E.D.N.Y. June 2, 1999) (order granting summary judgment in part) and denied reconsideration. Rosco alleged that Mirror Lite misrepresented Rosco's oval mirror to consumers by publishing various statements, such as that Rosco's mirror did not comply with federal safety standards and that school bus owners must replace their mirrors with mirrors of "identical appearance" to comply with federal safety standards. To establish misrepresentation under 15 U.S.C. § 1125(a), a plaintiff must show that the statement at issue is either (1) literally false as a factual matter; or (2) although literally true, it is likely to deceive or confuse customers. Nat'l Basketball Assoc. v. Motorola, Inc., 105 F.3d 841, 855, 41 USPQ2d 1585, 1597 (2d Cir. 1997). The plaintiff must also prove that the "defendant misrepresented an `inherent quality or characteristic' of the product." Nat'l Assoc. of Pharm. Mfrs. v. Ayerst Labs., 850 F.2d 904, 917, 7 USPQ2d 1530, 1540 (2d Cir. 1988) (citation omitted).
The district court dismissed Rosco's unfair competition claim after finding these statements "literally true," and that they were not "implicitly false" so as to cause confusion. Rosco, Inc. v. Mirror Lite Co., No. CV-96-5658, at 27-28 (E.D.N.Y. June 2, 1999) (order granting summary judgment in part). We affirm the district court. Rosco did not offer evidence of clear untruth or implied untruth sufficient to defeat summary judgment. We uphold the district court's grant of summary judgment as to this claim, because there is no genuine issue as to the truth of those statements.
The district court rejected Rosco's claim that Mirror Lite infringed its "Hawk Eye" and "Mini Hawk Eye" common law marks in violation of 15 U.S.C. § 1125(a): "Rosco has produced no evidence in the form of consumer surveys, advertising expenditure, or unsolicited media coverage that `Hawk Eye' and `Mini Hawk Eye' have attained secondary meaning. Nor has Rosco established a likelihood of confusion, given the sophistication of the purchasers in the school bus mirror market."7 Rosco, 139 F. Supp. 2d at 303-04.
Rosco asserted its claim under 15 U.S.C. § 1125(a), section 43(a) of the Lanham Act. Unregistered marks receive essentially the same protection as registered marks: " [T]he Court interprets this section [§ 43(a)] as having created a federal cause of action for infringement of unregistered trademark or trade dress and concludes that such a mark or trade dress should receive essentially the same protection as those that are registered." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 776, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992) (Stevens, J., concurring). McCarthy notes: "When section 43(a) is used as a federal vehicle for assertion of traditional claims of infringement of trademarks, ... the courts have used as substantive law the traditional rules of trademarks and unfair competition law," and concludes that "the test of liability is likelihood of confusion." 4 McCarthy on Trademarks and Unfair Competition § 27:18 at 27-32 (4th ed.2002). See also New West Corp. v. NYM Co. of Cal., 595 F.2d 1194, 1201, 202 USPQ 643, 649 (9th Cir. 1979) (" [U]nder [§ 43(a)] the ultimate test is whether the public is likely to be deceived or confused by the similarity of the marks.... Whether we call the violation infringement, unfair competition or false designation of origin, the test is identical — is there a `likelihood of confusion'?").
To prevail on a claim for common law trademark infringement under section 1125(a), a party must show likelihood of confusion. This is required by the statute itself: section 1125(a) is triggered by a use that "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association" of the user with the senior user. 15 U.S.C. § 1125(a) (2000). Rosco does not challenge the district court's finding that it failed to show likelihood of confusion.
Finally, we have considered Mirror Lite's procedural objections and find them to be without merit.
6) whether Rosco has shown that Mirror Lite engaged in tortious interference with business relations through inequitable conduct in procuring the '984 patent.
AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART, and REMANDED.
The district court deemed Rosco's complaint amended to add claims of patent invalidity under 35 U.S.C. § 102(e) (inherently anticipated by prior art) and 35 U.S.C. § 103 (invalid as obvious)Rosco, 139 F. Supp. 2d at 300.
The district court's finding in this respect appears to be inconsistent with its earlier summary judgment decision, in which it noted: "A review of the other cross-over mirrors on the market reveals that several different styles of cross-over mirrors exist .... It cannot be said that the oval shape and flat backing are dictated by function."Rosco, Inc. v. Mirror Lite Co., No. CV-96-5658, at 15 (E.D.N.Y. June 2, 1999) (order granting summary judgment in part).
See In re Haruna, 249 F.3d 1327, 1335, 58 USPQ2d 1517, 1522 (Fed. Cir. 2001) ("The obviousness of a design `is determined by ascertaining whether the applicable prior art contains any suggestion or motivation for making the modifications in the design of the prior art article in order to produce the claimed design.'") (quoting Hupp v. Siroflex of Am., Inc., 122 F.3d 1456, 1462, 43 USPQ2d 1887, 1891 (Fed. Cir. 1997)); Durling v. Spectrum Furniture Co., 101 F.3d 100, 103, 40 USPQ2d 1788, 1790 (Fed. Cir. 1996) (The inquiry under section 103 is "whether the claimed design would have been obvious to a designer of ordinary skill who designs articles of the type involved.").
Also, the district court failed to explicitly mention claims 4, 5, and 9, instead concluding: "the '984 patent is declared invalid."Rosco, 139 F. Supp. 2d at 303. On remand, the district court should consider these claims.
Three other claims under 15 U.S.C. § 1125 were originally asserted in the district court: Rosco alleged that Mirror Lite infringed its alleged common law trademark rights in its product numbering system; infringed the trade dress of its "Hawk Eye" mirrors; and infringed its alleged common law trademark rights in the "Eagle Eye" mark. It is not clear whether Rosco's common law trademark claim as to its product numbering system is at issue on appeal, but we find no error with the district court's rejection of that claim. As for the trade dress claim, the district court concluded that Rosco abandoned its trade dress claim in light of the Supreme Court's decision in Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 216, 120 S. Ct. 1339, 146 L. Ed. 2d 182 (2000). Rosco does not argue to the contrary. Finally, the district court found that Rosco abandoned its claim that its alleged common law trademark rights in the "Eagle Eye" mark were infringed. We do not understand this ruling to be challenged on appeal.


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROY COCKRUM, ET AL ., Plaintiffs, v. Case No. 1:17-cv-1370-ESH DONALD J. TRUMP FOR PRESIDENT, INC. ET AL ., Defendants. REPLY IN SUPPORT OF DEFENDANT DONALD J. TRUMP FOR PRESIDENT, INC.’S SPECIAL MOTION UNDER THE D.C. ANTI-SLAPP ACT TO DISMISS THE FIRST AMENDED COMPLAINT Jeffrey Baltruzak JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 jbaltruzak@jonesday.com Michael A. Carvin Counsel of Record Vivek Suri JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879-3939 macarvin@jonesday.com vsuri@jonesday.com Counsel for Donald J. Trump for President, Inc. TABLE OF CONTENTS Page Table of Authorities ...................................................................................................... ii Argument ...................................................................................................................... 1 A. The District of Columbia Anti-SLAPP Act applies in federal court ............... 1 B. The Anti-SLAPP Act applies to this case ........................................................ 2 C. The Anti-SLAPP Act does not entitle Plaintiffs to take discovery ................. 4 Conclusion ..................................................................................................................... 6 Certificate of Service i TABLE OF AUTHORITIES Page(s) CASES Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015) ................................................................................. 1 Competitive Enterprise Institute v. Mann, 150 A.3d 1213 (D.C. 2016) .................................................................................... 1, 4 Deripaska v. Associated Press, No. 17-913 (Oct. 17, 2017) ........................................................................................ 1 Viles v. Ball, 872 F.2d 491 (D.C. Cir. 1989) ................................................................................... 4 STATUTES D.C. Code § 16-5501 ................................................................................................... 2, 3 D.C. Code § 16-5502 ................................................................................................... 2, 4 OTHER AUTHORITIES Fed. R. Civ. P. 26 ............................................................................................................ 4 ii ARGUMENT In their opposition to the Campaign’s special motion to dismiss under the District of Columbia’s Anti-SLAAP Act, Plaintiffs assert that the Act does not apply in federal court (and in any event does not cover this case). As we noted in our opening brief, we recognize that this Court did not apply the Act in Deripaska v. Associated Press, No. 17-913 (Oct. 17, 2017); we have presented the anti-SLAPP motion primarily to preserve the defense. We briefly address Plaintiffs’ arguments below. A. The District of Columbia Anti-SLAPP Act applies in federal court Plaintiffs invoke the D.C. Circuit’s decision in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015), refusing to apply the D.C. Anti-SLAPP Act in federal court. Plaintiffs never deny, however, that the D.C. Circuit addressed a particular interpretation of the Act that the D.C. Court of Appeals later rejected in Competitive Enterprise Institute v. Mann, 150 A.3d 1213, 1238 n.32 (D.C. 2016). Plaintiffs instead assert that “the applicability of the Anti-SLAPP statute in federal court” is for federal courts, not D.C. courts, to determine. (Opp. 5.) That is true, but beside the point. The D.C. Court of Appeals may not be final authority on whether the Anti-SLAPP Act applies in federal court, but it is the final authority on what the Act means in the first place. And that court has now held that the Anti-SLAPP Act does not mean what the D.C. Circuit thought it meant in Abbas. As a result, no binding precedent addresses whether the D.C. Anti-SLAPP Act, as currently interpreted, applies in federal court. For the reasons explained in our opening brief, the Act does apply. 1 B. The Anti-SLAPP Act applies to this case The D.C. Anti-SLAPP Act applies to any claim that “arises from an act in furtherance of the right of advocacy on issues of public interest.” D.C. Code § 16-5502(b). The publication of the DNC emails was an act in furtherance of the right of advocacy on issues of public interest. Therefore, the D.C. Anti-SLAPP Act covers this case. Plaintiffs’ assertions to the contrary are unpersuasive. Plaintiffs implicitly concede that the disclosure, taken as a whole, addresses “issues of public interest”: The emails discuss “public figures” (such as Secretary Clinton and Senator Sanders), in addition to numerous issues of “economic” and “community” well-being. D.C. Code § 16-5501(3). Plaintiffs can claim only that snippets of information in particular emails “about individuals’ sexuality, health, personal information, and social security numbers” do not fit the Act’s definition of “public interest.” (Opp. 8.) In other words, Plaintiffs want courts to sift through defendants’ speech line by line, sorting each statement in each email into buckets for “public interest” (Act applies) and “private interest” (Act does not apply). That is simply wrong; as we showed in our opening brief, the Anti-SLAPP Act requires the court to assess the speech in the aggregate. (Mem. 14.) For example, the statute applies if the defendant’s “act” furthers the right of advocacy on public issues. § 16-5502(b). Accordingly, the court must evaluate the entire “act” of publication, rather than separately parsing each line that the defendant has published. Similarly, the statute directs courts to consider whether the defendant’s “statements” are “directed primarily” toward public rather than private issues. D.C. 2 Code § 16-5501(3). That, again, shows that the court should concentrate on the primary purpose of the defendant’s “statements” taken as a whole. (And Plaintiffs do not deny that the WikiLeaks disclosure, taken as a whole, is “directed primarily” toward public rather than private affairs.) Plaintiffs never engage with these arguments and do not explain why they believe the statute calls for line-by-line review rather than holistic analysis. Plaintiffs next argue that “no case from a D.C. Court” has ever applied the AntiSLAPP Act to a case like this one. (Opp. 7.) Even if that were true, that would be no reason not to apply the statute here. At best, Plaintiffs’ argument establishes only that the issues presented here have not come up in the D.C. courts since the District enacted its Anti-SLAPP Act just seven years ago. But the fact that the issue has not come up in that short time in no way suggests that Plaintiffs’ view is right. Plaintiffs also claim that applying the Anti-SLAPP Act here would mean that a political operative’s emails “can be hacked.” (Opp. 9.) That is incorrect. The AntiSLAPP Act protects “written or oral statement[s]” (§ 16-5501); it does not protect conduct. The Act applies here because this case is only about the publication of the DNC emails, and there can be no dispute that disclosing emails is speech. If a plaintiff had sued instead for the illegal acquisition of the emails, the Act would not apply because hacking into someone else’s email account is conduct, not speech. Applying the statute here would not protect “hack[ing].” 3 C. The Anti-SLAPP Act does not entitle Plaintiffs to take discovery Plaintiffs, last of all, ask the Court to allow discovery before ruling on the antiSLAPP motion. The very purpose of the Anti-SLAPP Act, however, is to “protec[t]” speakers from “expensive and time consuming discovery.” Mann, 150 A.3d at 1230. As a result, the Act allows a court to order discovery only “when it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome.” D.C. Code § 16-5502(c)(2). Plaintiffs insist that this heightened standard does not even apply in federal court, on the theory that it conflicts with Rule 26. That is incorrect. Rule 26 does not grant litigants an unconditional right to take discovery. Quite the contrary, the rule allows courts to impose “limitations on discovery.” Fed. R. Civ. P. 26(f)(3)(E); see Viles v. Ball, 872 F.2d 491, 494 (D.C. Cir. 1989) (“The district court has broad discretion … to allow or deny discovery”). Nothing in the rule requires a district court to disregard the D.C. Anti-SLAPP Act when deciding whether to grant discovery on D.C.-law claims. The anti-SLAPP standard is thus compatible with Rule 26, and the Court should apply that standard in this case. Plaintiffs cannot satisfy the Anti-SLAPP Act’s standard for targeted discovery. First, Plaintiffs’ request for discovery has no “target.” They identify no discrete categories of documents they believe will help them prove their case. They candidly admit their desire to launch a fishing expedition into all the documents that the Campaign has collected “in responding to inquiries from Congress and the Department of Justice.” (Opp. 10.) Plaintiffs may be curious about what the Campaign has produced, 4 but they do not explain why the Campaign’s productions to others will shed light on the specific issue here: the publication of the DNC emails. Second, Plaintiffs have not shown that it is “likely” that targeted discovery would enable them to defeat the anti-SLAPP motion. Even with targeted discovery, Plaintiffs’ claims would still fail for a variety of reasons: Plaintiffs have failed to establish diversity jurisdiction, failed to establish personal jurisdiction, failed to establish venue, failed to show that D.C. substantive law governs their claims, failed to fulfill the elements of the public-disclosure and intentional-infliction torts, and failed to overcome the First Amendment. Plaintiffs have not explained how targeted discovery would help them overcome any of those problems. Third, discovery would be “unduly burdensome.” Plaintiffs claim that the Campaign need only turn over the documents that it has “already collected” in response to inquiries from Congress and the Special Counsel. (Opp. 10.) But Plaintiffs are not entitled to receive every single document that Congress and the Special Counsel have sought—particularly since the production is confidential. Conversely, Plaintiffs might ask for some documents that Congress and the Special Counsel have not sought. Thus, the Campaign cannot simply turn over the same documents it has already produced to Congress and the Special Counsel; it would have to review thousands of documents all over, to determine whether they fit within Plaintiffs’ (as yet unspecified) discovery requests. That is unduly burdensome. The Court should therefore deny Plaintiffs’ request for discovery. 5 CONCLUSION The Court should dismiss Plaintiffs’ claims for public disclosure of private facts and intentional infliction of emotional distress in accordance with the D.C. AntiSLAPP Act. Dated: December 29, 2017 Respectfully submitted, /s/ Michael A. Carvin Michael A. Carvin (DC Bar No. 366784) Counsel of Record Vivek Suri (DC Bar No. 1033613) JONES DAY 51 Louisiana Avenue, NW Washington, DC 20001 (202) 879-3939 macarvin@jonesday.com vsuri@jonesday.com Jeffrey Baltruzak (PA Bar No. 318156) JONES DAY 500 Grant Street, Suite 4500 Pittsburgh, PA 15219 (412) 391-3939 jbaltruzak@jonesday.com Counsel for Donald J. Trump for President, Inc. 6 CERTIFICATE OF SERVICE I certify that on December 29, 2017, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send a notice of electronic filing to all registered parties. Dated: December 29, 2017 /s/ Michael A. Carvin Michael A. Carvin Counsel for Donald J. Trump for President, Inc.