On a different front, the IGEN case goes to the jury tomorrow. Here are a few posts from the Yahoo board for those that don't frequent those parts:
From a poster I don't know:
In a brief 20 second phone report from the court, IGEN's closing was described as, as good as you could possibly imagine, "they did us proud". IGEN is asking for 709.9 in compensatory damages, and 2-3 Billion in punitive damages. The defense starts shortly..
And here's Lawfighter's most excellent summary of jury instructions:
I attended today’s proceedings with a half dozen other shareholders. In addition to counsel, Igen was represented by its President, Rich Massey. Beginning at 2:25 p.m., Judge Messitte read the jury 78 pages of instructions on the law. He concluded at 4 p.m. and sent the jury home until 9:30 a.m. tomorrow. At that time, the jury will hear 2 hours of argument from Igen’s counsel, Brent Gurney, three hours from Roche’s counsel, attorneys Sennett and McKeown (with an intervening lunch break), and one hour of rebuttal from Igen’s Howard Shapiro. The jury will reconvene on Friday morning to begin deliberations. The following is a synopsis of what the judge told the jury. “You” means the jury. (The parenthetical comments are mine.)
You have been faithful in the discharge of your duty in this matter. It is now time for you to decide this case as the sole fact finder. You are bound to follow and apply the law as I explain it to you, but you are to determine the facts of this case.
Igen has the burden of proving its claims of breach of contract by Roche, and Roche has the burden of proving its counterclaims for breach of contract against Igen. If a party fails to meet his burden of proof, you must rule against that party. Meeting the burden of proof means establishing each and every element of a claim by a preponderance of the evidence. A preponderance means that something is more likely true than not. If the scales tip ever so slightly in favor of the claiming party, that party has proven that claim by a preponderance of the evidence and you should find in favor of that party.
The only exception to this preponderance rule concerns Igen’s claims for punitive damages. There, Igen must prove by clear and convincing evidence that Roche acted with actual malice toward Igen, or with fraudulent intent or an intent to injure Igen. This clear and convincing standard means that there is no substantial doubt in your mind. It is a more exacting standard than the preponderance standard, and less exacting than the standard of beyond a reasonable doubt that applies in criminal cases and is to be ignored by you here.
Where the parties have read Stipulations to you, such as with the Peter Homberg matter or the chronology of events in the Serono suit, you are bound to accept such agreements as being true. Otherwise, you are free to determine the credibility of the witnesses based on their demeanor, their bias, their interest in the outcome and any discrepancies in their testimony. It is normal for certain discrepancies to exist in the recollections of witnesses. But you should view a willful falsehood as a serious matter. You may consider a witness’s hostility, his or her motive, and if biased, you should view his or her testimony with caution. You should accord the testimony of expert witnesses whatever weight you think it deserves. Use your judgment and your common sense. If the experts disagree, you are the fact finder and you must decide the question.
Corporations, large or small, are to be treated with the same equality under the law as individuals. You are not to hold any negative opinion about Roche because it is a foreign corporation. You are to listen to the evidence and decide the case on the basis of that evidence and without regard to any sympathy you might have, and without regard to the consequences of your verdict. If you ignore that rule, you are less likely to reach a just verdict. You are to ignore any press accounts of this case or any discussions on the Internet.
(The Judge then gave an overview of the case and briefly summarized each of Igen’s 12 remaining claims and all 3 of Roche’s counterclaims. He explained that on Counts 2, 5, 10 and 12, he had already determined that Roche was in breach and was liable to Igen. The jury is only to decide what if any damages Igen is entitled to.)
You are also to decide if any of these breaches, or any other breaches that you might find Roche committed, are material breaches such that Igen can terminate the License Agreement. Materiality means an issue of substance, it goes to the very essence of the agreement, and to the fundamental purpose of the contract. Not every breach of an agreement is material, but a number of non-material breaches may together amount to a material breach that justifies termination of a contract. You are advised that if you find that Roche materially breached the License, Igen has agreed that it will not immediately terminate the License. The parties have agreed that any such termination will not occur unless and until Igen wins any appeal.
The purpose of awarding compensatory damages is to put the injured party in the same position it would have been in without the breach of contract. These compensatory damages are intended to compensate an injured party for losses actually sustained as a direct and proximate result of the breach. Any compensatory award must fairly and adequately compensate the injured party who has a duty to minimize or mitigate its own damages. You are not to award punitive damages for any breach of contract. If, as Igen has requested, you only award nominal damages of $1 or $10 for certain counts on which Igen has not claimed significant economic losses, you are advised that the mere fact that Igen only sought nominal damages on those counts does not mean that the breaches alleged in those counts are unimportant. They may be considered by you in determining whether Roche materially breached the License.
(The Judge again summarized Igen’s 12 claims and Roche’s 3 counterclaims making reference to the Special Verdict Form that the jury will complete. I will not restate the allegations here but will await the closing arguments to provide a summary of the main contentions. A shortened example follows.)
For example, in Count One, Igen has alleged that Roche failed to properly account for, record or pay all royalties due to Igen. You must first answer the question, “do you find that Roche breached one or more of its License obligations in that regard.?” If you answer yes, you must then answer the question, “did Igen sustain any damages as a result of that breach?” If the answer to that question is also yes, you must answer the final question, “in what amount?” If your answer to either of the first two questions is no, you must find for Roche on that count and move to the next issue.
(I will depart from my decision not to discuss the various claims asserted by each party only to address Igen’s claim for unfair competition.)
In Count 14, Igen has claimed that Roche engaged in unfair competition by continuing the Serono patent litigation even after Roche bought the patent from Serono. All persons in business may compete with one another using common honesty and fairness. In general, unfair competition is characterized by fraud, trickery or unfair practices. A mere breach of contract is not unfair competition. Here, Igen has alleged that Roche tried to exclude Igen from the market or damage Igen unfairly. While it is only the continuation of the Serono suit that may constitute unfair competition, you may also consider other evidence, such as Igen’s claim that Roche tried to depress Igen’s share price, as evidence of Roche’s motive if you decide to award punitive damages. Recently, Roche paid Igen $4.8 million in legal fees, but you must still decide if Roche practiced unfair competition. As for punitive damages, if you find by clear and convincing evidence that Roche acted with actual malice toward Igen, with ill will, fraud or an intent to injure, you should award punitive damages in an amount that will punish and deter Roche and others from committing similar actions. You must determine that amount which must be proportionate to Roche’s conduct and to the ability of the Roche Diagnostics Division to pay such an award.
(Please hold your questions about damages on Count 14, and the relationship between and the amount of compensatory and punitive damages. When we asked Igen’s counsel today, they said “it will all be explained tomorrow.” The jury paid very close attention to the Judge’s instructions on the matter of unfair competition.)
Finally, the Judge told the jury that while they deliberate, food will be brought in to them. As he said, “lunch is on us, and you don’t have to be unanimous in what you eat!” That brought sustained laughter.
For the non-lawyers on the board, I hope this has been helpful. For the lawyers, I know that you will recognize these posts as my best efforts to summarize lengthy instructions of law.
Tomorrow is going to be a very interesting day.
On the surface those look to me like pretty favorable instructions for IGEN. (But I'm no litigator). I still don't understand the issue of whether any of the compensatory damages are subject to tripling - maybe RCMac could shed some light (and maybe provide us some more comments).
I'm still amazed that Roche is letting this go to the jury.
Peter |
