Barry Barnett, Esq.

Barnett is a Fellow in the American College of Trial Lawyers, a partner in Susman Godfrey’s Dallas and New York offices, and a graduate of Yale University and Harvard Law School. With three decades of trial work representing both plaintiffs and defendants, Barnett is a master strategist in complex commercial litigation.

Commercial Appeals Roundup

By Barry Barnett

June 30, 2020

Contempt action for violation of bankruptcy discharge order belonged in court despite arbitration clause. https://ca2.uscourts.gov/decisions/isysquery/c8b45000-e918-438d-9027-23e88f01dfe4/1/doc/19-648_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/c8b45000-e918-438d-9027-23e88f01dfe4/1/hilite/ DACA survives. https://supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf Lawyer who won judgment on Argentine bonds had lien on proceeds of settlement he didn’t participate in and could sue Argentina under commercial activity exception to FSIA. https://ca2.uscourts.gov/decisions/isysquery/1bd29564-b123-43fd-8ae1-9878c9c0a597/2/doc/19-595_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/1bd29564-b123-43fd-8ae1-9878c9c0a597/2/hilite/ Arbitration clause required that arbitrator arbitrate arbitrability. https://opn.ca6.uscourts.gov/opinions.pdf/20a0184p-06.pdf Monopolization claim against giant in niche packaging market didn’t state viable patent fraud, sham litigation, or bundling predicates. https://ecf.ca8.uscourts.gov/opndir/20/06/183167P.pdf Class false…

The Contingency

Commercial Appeals Roundup

By Barry Barnett

June 15, 2020

Death of contract didn’t kill arbitration clause. http://media.ca1.uscourts.gov/pdf.opinions/19-1865P-01A.pdf Lack of detail in proof of patent and trademark claims’ weakness doomed winning defendants’ request for attorneys’ fees. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-1454.OPINION.6-8-2020_1600475.pdf… Contractor suing for improper early termination couldn’t use past profits to estimate future ones. http://ca5.uscourts.gov/opinions/pub/19/19-30395-CV0.pdf Man who wanted picture of dollar sign strangling Uncle Sam on postage stamps can sue USPS for discrimination. https://cadc.uscourts.gov/internet/opinions.nsf/651D46BC0EA8EFAC85258582005175A4/$file/19-5168-1846267.pdf Southwest’s contract of carriage didn’t promise passenger it wouldn’t run out of de-icer and…

The Contingency

Commercial Appeals Roundup

By Barry Barnett

June 8, 2020

This week’s Commercial Appeals Roundup actually covers a fortnight of appeals court rulings, from May 18 to June 5. Eyeballing the total number (24) makes me think the courts’ output has slowed only a little as a result of COVID-19. Subject-matter-wise, the courts: spoke on 7 IP issues, dealt with securities and pension claims in 4, decided arbitration questions in 3, considered commercial contract claims in 2, upheld 1 big price-fixing jury award, and resolved…

The Contingency

Commercial Appeals Roundup

By Barry Barnett

May 18, 2020

Appeals courts kept churning out rulings in the commercial sphere last week, but even more than usual dealt with IP issues—10 of 12 by my count, with one oil and gas and one class action rounding out the dozen. The Supreme Court Itself spoke up, ruling in a trademark death-match that the end of previous phase of the feud didn’t preclude the Hatfields from upholstering a new defensive weapon. That trickle will turn into a…

The Contingency

Commercial Appeals Roundup

By Barry Barnett

May 12, 2020

Decisions by appeals court have started to slow as the judges work through backlogs and adjust to remote oral arguments, remote conferences, and home offices with yappy dogs and bitey cats. The Week of May 4 produced 7 opinions that rated tweets on @contingencyblog, most of them dealing with intellectual property. Your Commercial Appeals Roundup, featuring a blurb for each of those rulings, appears below. Be well. * * * * Party that brought…

The Contingency

Commercial Appeals Roundup

By Barry Barnett

May 4, 2020

Here are the Commercial Appeals Roundups for the weeks of April 20-24, 2020 and April 27-May 1, 2020. The Roundups describe a key aspect of precedential appellate rulings by the U.S. Supreme Court, the 13 U.S. Courts of Appeals, and the highest appeals courts in Delaware, New York, and Texas and provide links directly to the relevant court’s opinion. Week of April 20 Extension of drug patent term didn’t apply to inactive variation of active ingredient.…

The Contingency

Commercial Roundup: Appeals

By Barry Barnett

April 20, 2020

Here’s the Commercial Roundup: Appeals for the week of April 13-17, 2020. As you’ll see, it went heavy on intellectual property and procedure, the latter including rulings on arbitration awards and class (de)certification. Have a great week. We’ll see you again next Monday. Be well. Voluntary dismissal without prejudice didn’t trigger right to fees for non-existent “prevailing party”. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-1134.Opinion.4-13-2020_1568488.pdf Double recovery that didn’t appear on face of arbitration award didn’t allow court to set it…

The Contingency

Commercial Roundup: Appeals Week of 4-6-20

By Barry Barnett

April 13, 2020

Lack of unjust enrichment from infringement of party bus trademarks supported denial of profits disgorgement under Lanham Act. https://ecf.ca8.uscourts.gov/opndir/20/04/182990P.pdf Delaware choice of law clause in employment contract trumped forum (Massachusetts) law. http://media.ca1.uscourts.gov/pdf.opinions/19-1611P-01A.pdf Diverse defendant could “snap” remove case before plaintiff served non-diverse defendant. http://ca5.uscourts.gov/opinions/pub/18/18-31184-CV0.pdf Stipulation of dismissal with prejudice doesn’t preclude award of fees under Rule 54. http://cafc.uscourts.gov/sites/default/files/opinions-orders/19-1136.Opinion.4-7-2020_1564942.pdf Tort claims for software glitch that burned up steam turbine fall to economic loss rule. http://ca5.uscourts.gov/opinions/pub/19/19-10238-CV0.pdf Public-use…

The Contingency

Commercial Roundup: Appeals for Week of 3-30-20

By Barry Barnett

April 6, 2020

The Contingency is slow off the mark this Monday, but it’s not because federal and state appellate courts reduced their output due to COVID-19 last week. That may change as social distancing measures postpone live hearings, but so far so good. Be well. Article III standing test required more than risk of misdiagnosis or mistreatment from errors in healthcare software. http://media.ca1.uscourts.gov/pdf.opinions/19-1429P-01A.pdf Mortgage holder could collect 24 percent default interest. http://ca2.uscourts.gov/decisions/isysquery/5378c71a-e4ff-4498-afd3-2abcb48ab297/1/doc/17-2903_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5378c71a-e4ff-4498-afd3-2abcb48ab297/1/hilite/ Providing business card with fax…

The Contingency

Commercial Roundup: Appeals for Week of 3-23-20

By Barry Barnett

March 30, 2020

COVID-19 didn’t slow the appellate courts last week, as you can see from the 16 entries below. Be well. Race must “motivate” decision not to make contract under 42 U.S.C. 1981. https://supremecourt.gov/opinions/19pdf/18- Fifth Circuit will rehear case on constitutionality of CFSB en banc. http://ca5.uscourts.gov/opinions/pub/18/18-60302-CV1.pdf… and http://ca5.uscourts.gov/opinions/pub/18/18-60302-CV0.pdf You can’t sue states for copyright infringement. https://supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf Arbitrators didn’t act in bad faith by not explaining dismissal. http://media.ca1.uscourts.gov/pdf.opinions/18-2057P-01A.pdf Business necessity defense raised individual questions in ADA case against…

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