Wild Inaccuracies in CAFC’s Opinion on Reines

This is the only post before I do a full analysis of the Reines opinion, but word needs to get out: it’s wrong.  I’m shocked — baffled is a better word actually — at what the Court did.

I’ll begin with this passage from the Court’s “en banc” opinion (more on that later) since it’s the easiest thing to deconstruct for you so far.  The court wrote:

It [the email in Ex. 38] suggested that his special relationship with the court should be taken into account. Respondent touted his role as chair of this court’s Advisory Council, and stated that his “stature” within the court had helped “flip” a $52 million judgment in favor of his client and that he “would love to help [the recipient of his message] do the same.” Reines Ex. 38.

The court did not quote email exhibit 38. In fact, the Court both misrepresents what the email says, and its “interpretation” makes absolutely no sense.  Here is the material text of Exhibit 38:

Paul, I saw the unfortunate verdict in ND Cal in the Power Integrations case. I call to offer assistance in two ways. I can help in the district court. No one knows this court better or has a better relationship with the bench. I have chaired the ND Cal Patent Rules committee for many years and am viewed as an authority on all-things-patent by this bench. You will have maximum credibility. Second, I am a leading Federal Circuit advocate. Just yesterday Chief Judge Rader sent me an email reporting how impressed the Federal Circuit judges were in appeals I argued Tuesday. In one of those cases I helped flip a $52 million verdict. I would love to help you do the same. Yesterday’s email [from Chief Judge Rader] is below. Please keep it to Fairchild. I have served the Federal Circuit as Chair of its Advisory Council for many years. That obviously speaks to my stature at that court.

Where to begin.  Putting to the side the fact that it obviously doesn’t say what the court said — he did not say his stature helped flip a jury verdict — it also cannot be reasonably read that way:  he refers to an oral argument that had just occurred two days prior, and says he helped flip the verdict.  Wow!  How did he know 2 days after argument that the case had been reversed?

It hadn’t been two days. He had “flipped” the verdict in a JMOL before the district court.  The Federal Circuit’s characterization of the evidence — and this seems to be the key piece — is flatly wrong.  This is outrageous.

And there is more.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

25 thoughts on “Wild Inaccuracies in CAFC’s Opinion on Reines

  1. 7

    I think the Court fairly summarized the e-mail, then came to a wrong conclusion. It does describe a relationship that not many attorneys have with judges of the Federal Circuit, and that may be a “special” relationship. However, the ethics rules forbid implying the ability to improperly influence the Federal Circuit: The rules do not forbid suggesting that through extensive contact with the Federal Circuit you would be viewed as a trustworthy advocate (more so than someone that appears before the Federal Circuit one every decade). I think that is what the e-mail suggests. The Court drew an inference that it suggested an ability to get the Court to grant relief not warranted, but that inference is not so strong that it supports sanctions.

    1. 6.1

      I would expect if we did a poll of businesspersons who would be in a position to receive such an email, they’d say the same thing.

    1. 4.1

      I don’t know California law, but I bet it has an exception when there is a pre-existing relationship between the lawyer and the solicited party.

  2. 3

    David,

    You expect the recipient of the email to not link together the immediately preceding sentence about the Federal Circuit and the “flipping” of the verdict. That doesn’t seem reasonable. Furthermore, a completely reasonable interpretation of the email is that the verdict was flipped at the district court and the Federal Circuit affirmed the flip in two days (which of course would not be unheard of given the quick turnaround often seen with a Rule 36 affirmance).

    But regardless, the truth of Reines’ emails is immaterial. What matters is what perception it would cause in the mind of a reasonable, objective reader. Would a reasonable person, upon receipt of this email, think that Reines was implying some sort of special relationship? That is the question that matters.

    1. 3.1

      But regardless, the truth of Reines’ emails is immaterial. What matters is what perception it would cause in the mind of a reasonable, objective reader. Would a reasonable person, upon receipt of this email, think that Reines was implying some sort of special relationship? That is the question that matters.

      Absolutely right.

    2. 3.2

      Furthermore, a completely reasonable interpretation of the email is that the verdict was flipped at the district court and the Federal Circuit affirmed the flip in two days (which of course would not be unheard of given the quick turnaround often seen with a Rule 36 affirmance).

      Just as reasonable an interpretation is that Mr. Reines assumed (and wanted the client to assume as well) that the flip would be affirmed, given the judge’s recounting of internal court discussions of the oral arguments and the effusive praise of his performance. That’s not an unreasonable assumption, given Judge Rader’s email, which goes to show how out-of-order the e-mail. The case was still pending, for goodness sake!

    3. 3.3

      If he “flipped” the verdict at the CAFC, it would not be Rule 36. That’s my point. The Federal Circuit’s statement is false. Read what they said, and read what Reines wrote.

      1. 3.3.1

        David,

        Respectfully, whether you know that there’s no way this email could be taken as true when details are investigated is immaterial. What matters is what impression that email was intended to convey, and how it would have been read by a reasonable person. Do we expect the reasonable person to understand operating procedures at the Federal Circuit and know how long it takes for a case to turn around? (As much as you or I may be familiar with patent law and its inner workings, I would not presume others to know, nor would I presume they care.) Do we also expect the reasonable person to investigate claims like this, or would we expect the reasonable person to take from this email that Reines was implying a special relationship.

        Respectfully, I feel you are missing the forest for the trees.

  3. 2

    Hey David, Want to mention you’re a recent Rader clerk when penning your apologia?

    If you can’t see the impropriety in these emails you have no business writing an ethics column.

    1. 2.1

      Already did that, Anon, already did that.

      I’m not apologizing but this is absolute misrepresentation. If you’re going to discipline a lawyer for saying his stature flipped a jury verdict, you better have that. They don’t. They did what judges condemn litigants for doing: they cropped the quotes, juxtaposed words, and misrepresented the email. It’s shocking.

      I don’t care one whit about Mr. Reines. I care about the law.

      1. 2.1.1

        David, people knowing a lot about a case can see that judges do a lot of what you say the court does here. They seemingly misrepresent the facts. But do they really? Or do they simply misunderstand the facts?

        I don’t think judges are deliberately dishonest. Do you?

    2. 2.2

      Sister anon,

      If you are going to don the moniker, try to do it justice and not belabor a well known point.

      Thanks.

      1. 2.2.1

        What’s the “well-known” point that was being “belabored”?

        Lots of people read this blog for the first time. They have no idea who David is and they certainly would have no reason to believe he clerked for Rader — and no doubt admires Rader and considers Rader a personal friend — unless the relationship is disclosed.

        It seems like such disclosure is resaonable and requires minimum effort. And David understands that, apparently.

  4. 1

    “I have chaired the ND Cal Patent Rules committee for many years and am viewed as an authority on all-things-patent by this bench. You will have maximum credibility. Second, I am a leading Federal Circuit advocate. Just yesterday Chief Judge Rader sent me an email reporting how impressed the Federal Circuit judges were in appeals I argued Tuesday. In one of those cases I helped flip a $52 million verdict. I would love to help you do the same. Yesterday’s email [from Chief Judge Rader] is below. ”

    Sounds like a scandal to me.

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