Indivior v. Dr. Reddy’s (Fed. Cir. 2018) [DrReddysOrder]
This “case” is actually a consolidation of 14 filed-appeals that collectively stem from six different district court cases involving three sets of appellants. In his consolidation order, the Federal Circuit Clerk Peter Marksteiner wrote:
The above-captioned appeals appear to be related. We consolidate the appeals, and thus one set of briefs should be filed for the appeals.
Order of November 1, 2017.
Rather than filing a single consolidated brief, the appellant’s filed three (Dr. Reddy’s; Teva + Watson; and IntelGenX + Par). Although each brief individually complied with the Federal Circuit’s 14,000 word limit — relied upon co-appellant briefs by incorporating-by-reference arguments made by co-appellants. For instance, Dr. Reddy’s brief explains: “The asserted claims of the ’514 patent are invalid as indefinite. DRL adopts by reference Par’s arguments on this issue.” The patentee then asked for extra space in its brief to respond to all of the arguments.
In a new (non-precedential) order, the clerk has attempted to resolve the issue by striking the briefs filed and demanding a single joint opening brief <18,000 words and then allowing the patentee to also file an expanded responsive brief.
One problem with the Court’s approach here is that it made no determination as to whether the incorporation-by-reference was problematic in this situation. In particular, Federal Rule Appellate Procedure 28(i) permits incorporation by reference in consolidated cases involving multiple appellants or appellees. In a parallel case, the 8th Circuit indicated that incorporation-by-reference in this situation does not count toward the word-limit. In re Target Corp. Customer Data Security Breach Litig., 855 F.3d 913 (8th Cir. 2017) (“Nothing in Rule 28(i) suggests that parts of briefs adopted by reference should be treated as literally incorporated into a party’s principal brief for wordcount purposes.”). In Microsoft Corp. v. DataTern, Inc., 755 F.3d 899 (Fed. Cir. 2014), the Federal Circuit barred a party from incorporating-by-reference (finding the incorporated argument waived). However, that case did not fall under R. 28(i) and so is distinguishable from this situation.
The motion briefing is worth pulling from PACER (and posting if convenient for Dennis). As far as I can tell, the appellants did what the rules allow them to do and what FedCir practice has always been (allow appellants represented by separate counsel to file separate full-length briefs, as Pilgrim notes), and their motion briefing explained why. As Dennis notes, this order doesn’t say anything one way or the other about whether the opening briefs were proper; it just orders a complete do-over of the briefing, with vastly compressed word limits, for no reason other than that the motions judge felt like ordering that. The order may as well have said “because we can, see FRAP 2.” If the FedCir wants to change its rules and start forcing separately-represented parties to join briefs, it should post a proposal and invite comments. To do it this way does nothing other than put parties on notice that they’re subject to the whims of the motions judge.
“what the rules allow them to do”
Combined with
“for no reason other than that the motions judge felt like ordering that.”
When such places convenience over justice is an unjustified level of arbitrariness.
Word limits without regard to a multiplicity of issues (including separate parties) strikes me as an exercise of arbitrary power.
I can see where verbosity may be desired to be constrained on an individual topic, but when the penalty of forfeiture is present for arguments not presented/preserved runs into a situation wherein a multiplicity may adversely affect all arguments or waiver of those not “fitting in” results, we appear to have placed justice behind convenience.
There are three different sets of defendants represented by three different law firms, but they are now required to file a single joint brief. This does not seem consistent with the court’s usual practice of permitting parties represented by separate counsel to file their own separate briefs. Cf. Practice Note to FCR 28 (requiring consolidated brief where the same law firm represents multiple parties). What if the parties have differing positions and interests? Doesn’t this interfere with the parties’ right to choose their own counsel?
Yes it may not be easy [just as many joint defenses are not easy using different firms]. Three different sets of attorneys can have three different sets of egos and writing styles besides the possible differences in what they or their clients G.C. may consider important, both in general and in their different client’s interest. What if one firm insists on making an argument so weak that the other firms thinks it may impact the credibility of their whole brief?
Dennis:
Because the CAFC still requires parties to use the antiquated process of printing and submitting many paper copies of briefs, rather than electronic filing of briefs, the CAFC clerk has caused a huge waste of money not only in reconfiguring the briefs, but also in reprinting them. Ask not for whom the dead trees toll, …
Bob,
Not so. The Federal Circuit requires both electronic filing and paper copies. Parties on appeal should be glad they require printed copies. The judges and clerks pay more attention to what is written when they are reading the hard copy.
For those who practice regularly before the Federal Circuit, this order should come as no surprise. On its face, it appears to be in tension with FRAP 28(i). But nothing in FRAP 28(i) is mandatory, or even that FRAP 28(i) allows multiple briefs that essentially allow a party to expand the word count.
See footnote 2 from DDR Holdings, LLC v. Hotels. Com, LP, 773 F. 3d 1245 (Fed. Cir. 2014): “Microsoft Corp. v. DataTern, Inc., 755 F.3d 899, 910 (Fed.Cir.2014) (co-parties in non-consolidated appeals cannot use incorporation pursuant to FRAP 28(i) to exceed word count limits prescribed by FRAP 32(a)(7)).”
I’m not saying that the Federal Circuit’s approach is necessarily correct. We would have to see the briefs and motion here to make that decision. Dennis, you should post those.
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