Monday, November 25, 2013
Reply brief in Lexmark v. Static Control
Lexmark's Reply Brief, to finish out the set. Obviously I disagree, but I'll limit myself here to one argument I think is disingenuous to the point of misleadingness: the equation of antitrust treble damages and fees, which are mandatory and punitive ("shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee," 15 U.S.C. § 15) with Lanham Act damages and fees (which allow but do not require the court to increase a damage award up to three times over what the plaintiff proved as actual damages, as long as that's reflecting the court's assessment of the true damages and "not a penalty," and only provide for a fee award in "exceptional" cases, 15 U.S.C. § 1117).