SANCTIONED LAWYER GETS VINDICATION
Jean-Marc Zimmerman is going out of his way to talk about a recent court victory. A year after the New Jersey patent attorney was sanctioned for filing cookie-cutter infringement complaints � and ordered to spread word of that punishment � he’s now making sure the fact that the order was vacated last month also makes the rounds.
When Western District of Washington Judge Marsha Pechman sanctioned Zimmerman and his firm, she awarded their opponent almost $142,000 in fees and costs. She also ordered Zimmerman and his client, Eon-Net, to notify other targets of its infringement claims about her ruling.
On Sept. 27, the Federal Circuit U.S. Court of Appeals vacated the sanctions (.pdf), and Zimmerman made sure The Recorder � which had written about Pechman’s order � knew the score.
“I felt it important to get it out there � that there was no basis for the sanctions,” Zimmerman said last week. “There was support for the plaintiff’s position.”
His firm, Zimmerman, Levi & Korsinsky, had sued Flagstar Bancorp Inc. on behalf of Eon-Net. Flagstar was represented by Quinn Emanuel Urquhart Oliver & Hedges. Pechman concluded Zimmerman had, among other things, failed to conduct a “reasonable pre-filing inquiry.” She wrote (.pdf) that she was concerned that Eon-Net’s filings against various companies � near-identical complaints that sought quick, relatively inexpensive settlements � presented “indicia of extortion.”
Federal Circuit Chief Judge Paul Michel, Judge Alvin Schall, and U.S. District Judge Elaine Bucklo, who sat by designation, found Pechman’s assessment of the evidence “clearly erroneous.”
“There is really no dispute that Eon-Net’s counsel did examine portions of Flagstar’s Web site and, based on his experience, concluded that it worked in a manner that infringed [the patent],” their unpublished opinion reads.
The circuit sent the issue back to Pechman to reconsider. (Eon-Net had asked to have the case remanded to someone else.)
The appellate court also said that, while filing nearly identical complaints against companies then offering to settle on the cheap might indicate an improper purpose, there could be a more innocent explanation.
“A company may hold a patent on a widely used device or process that many different types of companies use,” the appellate opinion said.
Los Angeles-based Quinn Emanuel partner Jon Steiger reacted to the ruling by saying that “we are confident that with further proceedings the judge is going to come again to the same conclusion.”
The Federal Circuit panel also vacated Pechman’s summary judgment ruling in favor of Flagstar, but affirmed a denial of sanctions against Flagstar.
� Pam Smith
RAPIST GETS (MONEY) BREAK
While serial rapist Joseph Johnson Jr. lost his fight against being recommitted to a mental facility as a sexually violent predator, he might escape paying fees for having a court-appointed lawyer.
San Jose’s Sixth District Court of Appeal remanded his case to Santa Clara County Superior Court last week for a hearing that will determine whether Johnson actually has the finances to pay.
In an unpublished decision, Justice Richard McAdams ruled that Judge Alfonso Fernandez’s order to pay $23,000 in fees wasn’t supported by substantial evidence and didn’t reflect actual costs, adding that defense counsel hadn’t presented an itemized bill. Justices Patricia Bamattre-Manoukian and Wendy Duffy concurred in People v. Johnson, H029316 (.pdf).
The Sixth District said it had doubts Johnson could afford legal fees, even though Eleanor Childs, his younger sister in Vacaville, said she had set aside about $200,000 in proceeds from a real estate sale for Johnson’s use.
“[Childs'] testimony did not establish that defendant had a legal right to the money, or access to the money independent of her, or that she was willing to disburse any money to him while he was still confined,” McAdams wrote. “As far as could be determined from her testimony, if she changed her mind about giving defendant the money, [he] might or might not have any legal recourse.”
As for Johnson, the court’s ruling indicated that he has been incarcerated � again � for reasons “not related to the 2002 petition.”
� Mike McKee
