Monday, July 11, 2022

Antisuit Damages?

Both Law360 and FOSS Patents have posted articles discussing (and linking to) Apple's filing in the U.S. District Court for the Eastern District of Texas of what it titles an "Emergency Motion for Relief Against Ericsson's Attempt to Use Secret, Ex Parte Actions in Bogota, Colombia to Subvert Proceedings in This Court."  To state the matter concisely, according to Apple the action in the E.D. Texas may determine the terms of a global FRAND license; but in April 2022, Ericsson obtained an ex parte preliminary injunction from a court in Colombia, which enjoins Apple Colombia S.A.S. from selling allegedly infringing products in that country and forbids it from seeking an anti-antisuit injunction elsewhere.  The Colombian court decided last week to keep the preliminary injunction in place.  In response, Apple has filed the present motion in the Texas court for an order requiring Ericsson to "indemnify Apple from any fines, fees, penalties, and costs it incurs as a result of the Colombian injunction."  Apple compares the situation to the Samsung v. Ericsson dispute from early last year, in which Samsung obtained an antisuit injunction from a court in China and Ericsson sought an anti-antisuit injunction in the E.D. Texas. A possibly closer analogy is the Microsoft v.  Motorola litigation from nearly a decade ago, in which Motorola obtained a judgment in Germany while the U.S. FRAND litigation was pending, and the U.S. court enjoined its enforcement.  A potential concern there was that the German injunction would force Microsoft to give in before the U.S. action was adjudicated. (Apple cites Motorola later in its motion.)  

Whether the request for indemnification successfully avoids the Colombian court's order forbidding Apple from seeking an anti-antisuit injunction remains to be seen, as the FOSS Patents article discusses.  It's also a little unclear to me whether Apple's motion is a request for antisuit damages, in the sense of requesting damages for an alleged wrongful exclusion from the Colombian  market or other consequential damages.  It specifically refers only to "fines, fees, penalties, and costs," though it also states that Ericsson should "take financial responsibility for the consequences here of its action in Colombia" (emphasis in original).   In any event, I took a quick look at Thomas Raphael's book The Antisuit Injunction (Oxford Univ. Press  2d ed. 2019), which has a brief discussion at pages 333-34 of whether a court "in its discretion [can] grant damages in lieu of an [antisuit] injunction under section 50 of the Senior Courts 1981" Act.  According to Raphael,  the issue is unsettled under English law, with "conflicting authorities on the question of whether it is a precondition for the award of damages . . . that a claim for damages would exist at common law (or equity) in respect of the wrong in question once it has occurred."  Of course, English law doesn't apply in this case, but  Raphael also cites an article by Daniel Tan, Damages for Breach of Forum Selection Cases, Principled Remedies, and Control if International Civil Litigation, 40 Tex. Int'l L.J. 623, 646-47 (2005), which argues that U.S. courts have authority to award damages for breach of forum selection cases "in addition to, or in lieu of, injunctive relief," while leaving open the question of whether they should do so.  Anyway, I haven't researched this area of law carefully, but for now it strikes me as somewhat uncharted territory.

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