Risk Update

Conflicts — Side-switching Unscreenable Conflict Allegation in Lacrosse Glove Patent Scuffle, Judged Removed After Pro-Trump Public Communications

Posted Dan Bressler

“Practus Faces DQ Bid In Lacrosse Glove Patent Fight” —

  • “Sporting goods company STX LLC has asked a Delaware federal court to disqualify Practus LLP and one of its attorneys from representing competitor StringKing Inc. in a patent infringement case related to lacrosse gloves, arguing that the firm has a conflict of interest.”
  • “In a filing on Monday [1/5] in the U.S. District Court for the District of Delaware, STX asserted that Practus should be barred from representing StringKing because one of its partners previously represented an STX affiliate in the prosecution of an application to the U.S. Patent and Trademark Office that ‘matured into’ the patent in suit.”
  • “‘This side-switching places Practus on the opposite side of the same matter and triggers an unwaivable former-client conflict’ under ethical rules, STX argued.”
  • “In an answer to STX’s patent infringement complaint, StringKing has asserted counterclaims ‘full of vitriol and unfounded allegations against STX and its patent prosecution counsel,’ including ‘claims related to inequitable conduct, invalidity, false marking and unfair competition,’ the filing said.”
  • “Those claims are ‘based on supposed fraudulent actions taken at the [USPTO], including during prosecution of the asserted patent’ by S. Scott Lloyd, who is now a partner at Practus, STX said.”
  • “‘Because StringKing now attacks that same patent, Mr. Lloyd’s conflict is imputed to every lawyer at Practus, and no ethical screen can cure it,’ STX argued.”
  • “STX contends that Practus and its partner Jesse Camacho should be barred from representing StringKing in the case ‘to protect STX’s confidences, preserve the integrity of these proceedings and maintain public confidence in the bar.'”
  • “Since he prosecuted the application related to the patent at issue in the litigation, Lloyd ‘accessed confidential information concerning claim strategy, inventor communications, prosecution history positions and patent scope, all of which bear directly on infringement, validity, enforceability and damages issues in this litigation,’ STX said.”
  • “His access to STX’s confidential information regarding the patent at issue ‘could be used to STX’s detriment here,’ the company said.”
  • “Practus and Camacho should be disqualified per an ethics rule that prohibits a lawyer from representing another client in ‘a substantially related matter’ in a way that is materially adverse to the interests of a former client, STX said.”
  • “That is the case in this instance, STX said, as Lloyd had an attorney-client relationship with its affiliate and Practus now represents StringKing, which has interests that ‘are materially adverse to STX.'”
  • “‘The only question is whether the current matter is the same or substantially related to Mr. Lloyd’s prior representation,’ STX said. ‘It is, and it is not a close question.'”
  • “Given StringKing’s counterclaims, Camacho is now ‘in the posture of accusing his own partner’s prosecution conduct of being fraudulent, creating a direct and unwaivable conflict that threatens the integrity of these proceedings,’ STX asserted.”
  • “STX alleges that StringKing’s Flyer 1 lacrosse glove infringes ‘on one or more of the claims of the ‘930 patent.'”
  • “But in its counterclaims, StringKing argues that the patent is invalid ‘for incorrect inventorship’ and unenforceable for multiple reasons, including that misrepresentations were made to the Patent and Trademark Office during the application process.”

“Supreme Court removes recalled judge amid bar group complaints about column, podcast” —

  • “The Illinois Supreme Court on Monday rescinded its decision to return a retired Cook County judge to the bench, where he was to help address a backlog of cases. Judge James R. Brown was one of seven retired circuit court judges from Cook, Will, and Pope counties who were recalled last month to help address a judge shortage in Cook County by handling cases in the high-volume traffic division.”
  • “In late December, two local bar associations petitioned the state’s highest court to reverse Brown’s recall. Brown had served as a judge for 18 years and received endorsements from every bar group in the county during his tenure, including both organizations that sought his removal.”
  • “Early Monday morning, the Supreme Court issued a one-sentence order rescinding Brown’s reappointment without elaboration.”
  • “The Cook County Bar Association, which identifies itself as the nation’s oldest bar association of Black lawyers and judges, announced its opposition to Brown’s appointment in December, citing a column he authored in September for John Kass News, a news and commentary website run by former longtime Chicago Tribune columnist John Kass.”
  • “The association alleged Brown’s column and a subsequent appearance on Kass’ podcast violated the Illinois Code of Judicial Conduct. According to the state, the code sets standards for the ethical conduct of judges and judicial candidates. Brown’s supporters noted that he was neither a judge nor a judicial candidate when the column and podcast were published.”
  • “In his column, Brown argued there was ‘renewed faith in the American justice system’ following what he characterized as an era of political ‘lawfare’ and ‘progressive prosecutors’ who ‘blatantly violated their oath to uphold the law.'”
  • “In seeking Brown’s removal, the bar association objected to multiple passages from the column, titled ‘His Judgement Cometh and That Right Soon,’ including assertions that ‘justice awaits those who brazenly and viciously demonized the 77 million Trump supporters’ and that ‘accountability, in one form or another, is coming to the George Soros-funded progressive prosecutors who waged lawfare against President Trump.'”
  • “The group also cited other portions of the column, including references to a United States Supreme Court nominee who ‘could not articulate the definition of ‘woman’ at her confirmation hearing’ and an assertion that ‘American citizens have been senselessly murdered by illegal aliens.'”
  • “In a statement approved by its executive committee, the Cook County Bar Association said Brown’s writing ‘undermines confidence in the entire justice system’ and ‘erodes confidence, promotes harmful and divisive discourse, and damages the respect for our justice system.'”
  • “In 2014, the last time Brown ran for retention, every bar association in the county recommended him for retention. The Chicago Council of Lawyers, which is now calling for his removal, said he was ‘considered to be a diligent judge with a good demeanor. He is reported to be prompt in starting his call, and is praised for being fair to all parties. The Council finds him Qualified for retention to his current position.'”