Saturday, July 2, 2022

Fifth Circuit treats Conti as nuisance, doesn't dignify motion for extension of time with prompt decision: Continental v. Avanci 'antitrust' case over automotive patent licensing is dead end

The reasonable and rational thing for automotive supplier Continental to do now would be to recognize that its meritless "antitrust" action against Avanci and some of its licensors (Nokia, Sharp, Optis) is--and always has been--an error. Conti has not convinced, and never will convince, a U.S. judge that it has standing and actionable claims under the Sherman Act. It's over (as the Fifth Circuit issued a revised panel opinion that throws out the case, just on a different, more case-specific basis). The sooner Conti comes to its senses, the better.

This here is a brief follow-up to a Thursday post, Continental and its counsel risk abuse-of-procedure sanctions from weary Fifth Circuit if they file another petition for rehearing. As I mentioned, the court gave flatly denied Conti's request for a 30-day extension to file another petition for rehearing en banc--and as I explained, the Fifth Circuit's published rules make it very clear that the number one problem of abuse of procedure faced by the court are all those en banc petitions, given that the fewest cases (less than 1%) are heard by the full court (and of the few that do make it there, a large percentage get there because of a judge, not a party, making the proposal). Conti and/or its counsel may get sanctioned, and in the present case there really would be a basis for that, as a decision designated as unpublished and non-precedential can hardly satisfy the criteria for a rehearing. Moreover, even if one disagreed with the district court and at least one of the panel judges (Circuit Judge Ho) on the question of antitrust standing for lack of injury, it is fair to say, at a minimum, that Conti cannot point to a pressing problem such as on the infringement litigation front.

The denial of Conti's motion for an extension of time was already a clear sign that the appeals court has had enough of this. Unfazed, Conti just brought another motion for an extension: as counsel for Avanci and its codefendants had told Conti's counsel they wouldn't oppose a 14-day extension, Conti thought the Fifth Circuit might grant a new motion.

But there's just radio silence from the court.

The judges left for a long weekend, right after which (as Monday is Independence Day) there is the statutory deadline for a rehearing petition. Unless there was just a logistical reason and the court informed Conti by telephone that the two-week extension would be granted (whic hI doubt), this leaves Conti and its lawyers with only two choices:

  1. Act like grown-ups, enjoy the weekend, and give up a strategically lost position. If all else fails, find a good psychotherapist to help you overcome the trauma.


  2. Go into crunch mode and produce another rehearing petition, which won't have any effect other than, potentially, sanctions and the embarrassment that goes with them.

There are strong reasons in favor of the first option. One of them is that former Chief Judge Stewart, who denied the first motion for an extension, doesn't have reading-comprehension problems, unlike Conti, which didn't even observe the court's clear instructions when filing its first rehearing petition (they had to refile in order to add some missing--but mandatory--elements). Judge Stewart saw that Avanci and its co-defendants wouldn't have opposed a 14-day extension. He could have granted a 14-day extension right away had he been so inclined.

Conti must know when it is not wanted. This here is such a case. The court is already treating Conti as a nuisance. Can't blame the judges, really.