Mystery motion seeks to set aside take-nothing judgment in patent-infringement case; supplemental response notes 5th Court decision vacating arbitration award in separate case

It’s hard to tell exactly why CEATS Inc. is trying to set aside a take-nothing judgment that Leonard Davis, chief judge of the Eastern District of Texas, signed on March 27 in CEATS, Inc. v. Continental Airlines Inc., a patent-infringement case. That’s because the company filed a motion to set aside the verdict under seal on Aug. 18.

But an unsealed supplemental response to that motion from three of the defendants in the case sheds some light on CEATS’ reasons: allegedly that the court-appointed mediator in the patent infringement case, Robert Faulkner, and a law firm representing a defendant, Fish & Richardson, did not reveal the facts relative to a previous arbitration in which they both had participated in a different case and that Dallas’ 5th Court of Appeals had vacated a year earlier.

First, some background: In a June 28, 2011, opinion in Karlseng v. Cooke, the 5th Court vacated an arbitration award because arbitrator Robert Faulkner failed to disclose that former Fish & Richardson partner Brett Johnson previously had given him a ticket to an NBA basketball game and a wine basket and paid for expensive meals, among other things.

Fast-forward to the matter of the mystery motion. Faulkner was also a court- appointed mediator in CEATS, and Fish & Richardson represents Continental Airlines in the case, according to the Public Access to Court Records [PACER], the federal courts’ online filing system. Johnson did not make an appearance in the CEATS case, according to PACER.

“CEATS contends that the final judgment should be set aside because counsel at Fish & Richardson P.C. and the Court-appointed mediator, Judge Robert Faulkner, did not disclose facts related to and recounted in the Dallas Court of Appeals opinion in Karlseng v. Cooke,” according to a supplemental response to CEATS’ motion filed by defendants Alaska Airlines, Horizon Air Industries and JetBlue Airways.

The supplemental response argues that the jury’s finding in the case should not be disturbed. It notes, “Klemchuk Kubasta LLP entered an appearance on behalf of Alaska [which the motion uses to refer to Alaska Airlines and Horizon Air] and JetBlue on August 24, 2011. . . . As of August 24, 2011, Fish & Richardson P.C. no longer represented Alaska and JetBlue in this litigation. . . . CEATS does not contend that any conduct by Klemchuk Kubasta LLP justifies relief from the final judgment. . . . Defendant AirTran Airways, Inc. has never been represented by Fish & Richardson P.C. in this litigation. . . . CEATS does not contend that any conduct by any lawyer that has ever represented AirTran Airways, Inc. justifies relief from final judgment.”

Michael Nadel, a partner in the Washington D.C. office of McDermott Will & Emery who represents CEATS, declines comment on the motion but refers to a protective order issued in the case. “Generally in the Eastern District of Texas, the court orders how things are filed under seal, and we always abide by that protective order,” Nadel says.

Tom Melsheimer, the managing partner of the Dallas office of Fish & Richardson who represents defendant Continental Airlines in the CEATS case, declines comment, also citing the protective order in the case. Continental, and a number of other defendants including Alaska Airlines, Horizon Air Industries and Jet Blue, also filed a response under seal to the motion, which includes an affidavit from Melsheimer.

Casey Griffith, a senior partner in Dallas’ Klemchuk Kubasta who represents Alaska Airlines, Horizon Air Industries and JetBlue Airways in the case, did not immediately return a call for comment.

-- John Council

Comments

[steven mulvihill]

Why has there been no followup to this story. the karlseng cooke case resulting in tens of millions of dollars being overturned should sound alarms in every courtroom in america. What has happened to our system of fair play in courts.

[Anonymous]

I wonder how many other cases are out there involving Faulkner and Fish & Richardson. It would be interesting to hear what opposing counsel in those cases have to say about Faulkner and Fish & Richardson.