Category: News Feeds

The Eastern District of Texas has long been known as the forum of choice for patent holders looking for a payday. While the past few years have seen the Eastern District get displaced from its pedestal as the most popular patent court — based primarily on TC Heartland’s major shift in patent venue law, as well as the rise of the Western District as an attractive forum for patent holders with the ability to sue defendants in Texas — the district still retains a favorable impression as a plaintiff-friendly choice, especially for nonpracticing entities. It is a bit unusual, however, to see the Eastern District of Texas as the selected forum for a much broader, albeit nonpatent, IP dispute involving a couple of Silicon Valley-based combatants. But unusual does not mean never — and we now have a juicy IP battle involving two high-profile grocery delivery companies to savor.

The first salvo was fired by perhaps the best-known name in grocery delivery, Instacart. While I suspect that Instacart’s popularity has gone up recently due to customer concerns about shopping in grocery stores during the Covid-19 pandemic, the sensibility around the grocery delivery space indicates an expectation of even more growth going forward. With a key driver of that growth being improved technology, just as it is for a host of companies looking to leverage technology to provide services for customers. But with increased commercial potential comes increased competition, putting a premium on Instacart being able to maintain its lead over rivals. Key to that effort for Instacart is the strength of its technical platform, as well as the goodwill it has generated from its brand-building efforts. At the same time, when a well-funded challenger arises that appears to have appropriated material from Instacart to get a head start in the ongoing race, aggressive litigation steps are both expected and called for.

And aggressive litigation steps are exactly what Instacart has recently taken, in a move that has garnered a significant amount of (welcome, considering the importance of controlling the narrative around litigation filings against competitors) media attention. From its announcement that it had filed a complaint against competitor Cornershop, to making strongly worded accusations that Cornershop had engaged in a “systematic effort to steal Instacart’s IP,” to moving for a preliminary injunction — Instacart has chosen the all-out-war route from the outset in an attempt to hobble a dangerous competitor. Even though Cornershop responded to Instacart’s cease-and-desist letter in just one day, with a representation that it had “ceased the activities” it was accused of, that was not enough to avert the lawsuit and preliminary injunction filing just two days later. The aggressive timing becomes a lot more understandable, however, when one factors in that: 1) Cornershop is owned by services-via-app behemoth Uber, and 2) had recently launched service in Texas and Florida, marking its first foray into direct competition with Instacart.

At the heart of Instacart’s complaint is that it has solved a critical problem facing grocery delivery services, namely that good images of every product for sale at any given grocery store simply don’t exist. To address that problem, Instacart claims that it empowered regular people to help fill gaps in the images database for each retailer with its Mobile Photo Studio, which allows regular users to upload images of products to Instacart for processing and eventual inclusion in Instacart’s product catalog. Indeed, “Instacart claims it spent “tens of millions of dollars” and “and a tireless amount of effort” to build its catalog, which features items from more than 30,000 stores across its footprint.” Unsurprisingly, Instacart claims copyright ownership in many of the images contained in its catalog, while complaining vigorously that Cornershop has disregarded its legal rights in those images as part of a sustained campaign to “scrape” Instacart’s catalog as the basis of its own.

In fact, Instacart accuses Cornershop of a systematic campaign to profit off the sweat equity and financial investment that went into building Instacart’s catalog. From lifting of images, to changing of file names to mask the origin of the files, to soliciting engineers with experience in “advanced scraping” — Instacart’s complaint tells a media-friendly story of a competitor looking to take advantage of the market leader’s investments for its own benefit as it looks to launch in the critical United States market. At the same time, we can expect that Cornershop, and its parent Uber, will mount a vigorous defense to Instacart’s claims while quickly pivoting toward increased investment in building out Cornershop’s catalog free of any further accusations of impropriety. Instacart’s preliminary injunction motion, if granted, could go a long way toward forcing Cornershop’s hand in that direction.

Ultimately, Instacart’s filing heralds the start of what will likely be a years-long fight for supremacy in the grocery delivery space. For now, it appears that at least part of the battle will take place in an East Texas courtroom, with the promise of both sides fighting vigorously in support of their legal claims. It is definitely too soon to predict which side will prevail — either in court or in the battle for customer attention — but there is at least precedent for an Uber-backed company buying its way out of significant IP trouble, in the form of the Waymo trade secret battle in the recent past. For now at least, Instacart is hoping that the court will deliver it an injunction to help seal the message that Cornershop is the stale alternative to Instacart’s fresh and reliable service.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

Over at The Washington Post, Radley Balko has been continually updating a piece where he offers evidence that the “criminal justice system is racist.” Here are just a few of the examples Balko provides:

A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”

In March of 2019, researchers compiled and analyzed data from more than 100 million traffic stops in the United States. What they found: Police were more likely to pull over black drivers. The researchers were able to confirm racial bias by measuring daytime stops against nighttime stops, when darkness would make it more difficult to ascertain a driver’s race. As with previous studies, they also found that black and Latino drivers are more likely to be searched for contraband — even though white drivers are consistently more likely to be found with contraband. They also found that legalization of marijuana in Colorado and Washington has caused fewer drivers to be searched during a stop, but that it did not alter the increased frequency with which black and Latino drivers are searched.

To put it mildly, there is a lot evidence out there that the criminal justice system treats people differently by race. Yet, as Michelle Alexander has explained, the Supreme Court has effectively closed the courthouse doors to claims of race discrimination via two cases: McCleskey v. Kemp, 481 U.S. 279 (1987) and United States v. Armstrong, 517 U.S. 456 (1996).

In McCleskey, the Court held that racial bias in sentencing could not be challenged under the Fourteenth Amendment’s equal protection clause unless clear evidence of conscious, discriminatory intent was presented. In support of his claim, Warren McCleskey had presented a study, called the Baldus study, of more than 2,000 murder cases in Georgia (the state in which the defendant, McCleskey, was convicted). Acknowledging that numerous factors besides race can impact the judgment of juries, prosecutors, and judges when it comes to sentencing, the Baldus study took into account 35 nonracial variables. Nevertheless, even with those variables, the study found that defendants charged with killing white victims were 4.3 times more likely to receive the death penalty than defendants charged with killing black victims. Although the Court accepted these racial disparities as valid, and that “[t]aken to its logical conclusion” McCleskey’s claim “throws into serious question the principles that underlie our criminal justice system,” the Court nevertheless held that demonstrated patterns of race discrimination were not enough, and that McCleskey needed to show an admission that a prosecutor or judge acted because of racial bias. As any defense attorney will tell you, the problem with such a standard is that a plethora of procedural rules shield prosecutors from scrutiny. Moreover, the Armstrong decision made obtaining such evidence effectually impossible.

In Armstrong, the defendant, Christopher Armstrong, was charged with conspiracy to distribute 50 grams of crack cocaine. At the time, federal law punished crack offenses a hundred times more severely than offenses involving powdered cocaine (don’t get me started on that), whereas state penalties for crack cocaine were far less severe. The federal public defenders handling Armstrong’s case, however, had begun to notice a disturbing trend in the federal crack cases they handled: all the defendants were black. Indeed, in the previous three years that particular public defenders office had handled 53 crack cases, yet not one defendant was white, despite the fact that most crack users were (and are) white.

The suspicion was that white defendants were being diverted by federal prosecutors to the state system, where, again, the penalties were far less severe. Like the McCleskey case, the statistical evidence was absurdly damning. In order to prove the intent requirement, Armstrong asked the Supreme Court for discovery in order to obtain evidence — evidence that was in the sole possession and control of prosecutors — of prosecutorial racial bias. The Court denied this request for discovery, because of course they did. And in one of the most tragically ironic rulings I know of, demanded that Armstrong produce, in advance, the very evidence of racial bias by prosecutors he could only obtain through discovery. In other words, proving race discrimination in the criminal justice system is a giant catch-22, where defendants are required to produce evidence they are procedurally blocked from obtaining.

Now let’s compare this catch-22 standard in race discrimination cases with proving religious discrimination. Recently, four members of this current Supreme Court argued that differential treatment of large churches during a deadly pandemic from “dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods” nevertheless demonstrates “indisputably clear” discrimination by the government. Of course, that argument lost, but it is worth noting how close it came to winning, and how ridiculously more lax such a standard — where any differential treatment by the state amounted to per se discrimination — is compared to proving discrimination by race.

In cases where religious discrimination has been found, however, the standard is arguably no less lax. In Espinoza v. Montana Dep’t of Revenue, the Supreme Court held that Montana’s state constitutional provision prohibiting taxpayer funding of religious schools discriminates against religion. The important point to keep in mind, however, is that Montana was not treating private schools differently based on their religious character. Both secular and religious schools were being denied state funding under the rationale of the state’s constitution. In other words, there was no differential treatment or denial of access to public funds based on religion at all, and therefore no conceivable burden was being placed on free exercise. Nevertheless, the Court insisted, without providing any example of how, Montana was conditioning “the availability of benefits upon a recipient’s willingness to surrender [its] religiously impelled status.’ ” Again, Montana was treating all nonreligious and religious entities the same, yet the Court conjured discriminatory treatment out of thin air.

Furthermore, entirely missing from the Court’s analysis in Espinoza was clear proof of conscious discriminatory intent (as is required in proving race discrimination) by anyone who crafted the Montana constitutional provision at issue or implemented it. The best the Court could do was discuss the Blaine framework of the 19th century that anyone can plainly see bears no relationship to Montana’s 1970s constitutional provision at issue in Espinoza that wiped away the old framework.

The bottom line is any comparison of the religious discrimination standard with race reveals an absurdly lopsided doctrine in favor of religion. There is simply no logical or legal justification for why race discrimination should require proof of intent in every circumstance, including instances where statistical evidence reveals grotesque levels of disparity, but religious discrimination can be assumed to occur even when no discriminatory treatment or intent can be presented. Like all gross disparities, these patterns reveal a bias, a bias this Court should be ashamed of when it comes to both standards.

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Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

When you hear that the NALP Foundation and the University of Texas School of Law’s Center for Women in Law recently conducted a study on the experiences of women of color in law schools, you’d probably think that The Jabot podcast — dedicated to issues of diversity in the legal profession — would be all over that. But it pretty quickly came to my attention that despite the no doubt good intentions of the study, there was something pretty important missing — specific data about Native American women in law school.

In this week’s episode of The Jabot, I speak with Thomasina Real Bird, Angelique EagleWoman, Paulene Abeyta, Christina McDonogh, and Aidan Graybill about the exclusion of Native voices in the The Center for Women in Law and The NALP Foundation’s study, “Women of Color – A Study of Law Student Experiences.” We discuss what NALP gets wrong in their study, why the NALP response to the criticisms isn’t sufficient, and the unique issues facing Native American law students and what work is needed to address them.

Additional Reading:
– Native women law students excluded from so-called “Women of Color in Law Schools” study
– Native American Attorney Study

The Jabot podcast is an offshoot of the Above the Law brand focused on the challenges women, people of color, LGBTQIA, and other diverse populations face in the legal industry. Our name comes from none other than the Notorious Ruth Bader Ginsburg and the jabot (decorative collar) she wears when delivering dissents from the bench. It’s a reminder that even when we aren’t winning, we’re still a powerful force to be reckoned with.

Happy listening!

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Banks are expected to be on the lookout for a lot of things their customers shouldn’t be doing, at least not through their bank accounts. Money laundering, for example, or bilking sovereign wealth funds of billions of dollars, or serving sellers of that evil and still very-much-illegal-on-the-federal-level weed, uh, weed. Now, they’ve got to keep an eye out for an equally sinister and immoral action: supporting democracy.

Bankers at Credit Suisse Group AG, HSBC Holdings Plc, Julius Baer Gruppe AG and UBS Group AG, among others, are broadening scrutiny under their programs that screen clients for political and government ties and subjecting them to additional diligence requirements, these people said.

The designation, called politically exposed persons, can make it more difficult or altogether prevent people from accessing banking services, depending on what the bank finds about the person’s source of wealth or financial transactions.

* The top lawyer at Ford is headed to Coca-Cola. They must have better “fizz” benefits. [Detroit Free Press]

* Whole Foods workers have filed a class action against the grocery store chain for allegedly discriminating against employees for wearing Black Lives Matter masks. [Boston Globe]

* An attorney donated touch-free thermometers to his local courthouse so that officials could more accurately screen for COVID-19. [WPXI News]

* A Florida teachers union has filed a lawsuit to attempt to stop the reopening of schools in the Sunshine State next month. [Fox News]

* A judge is accused of electronically “muzzling” defense counsel during a virtual court hearing by pressing a mute button. Bet some judges wish they had that ability during in-person proceedings… [Courier Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Back in 2014, Jeff Immelt had an idea: He would cap what would by then be a nearly two-decade run at General Electric’s helm by transforming the 120-year-old industrial conglomerate into a cutting-edge software shop. The Mill River Valley would rival Silicon Valley when it came to big-data innovation. Sure, GE didn’t know the first thing about digital technologies, the cloud, etc., but it knew a whole lot about the things those things connected to and controlled. By 2020, GE Digital would be bringing in $15 billion a year in revenue.

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to data collected by Law.com’s 2020 Go-To Law School Ranking, which tracks the number of Class of 2019 grads who wind up working at the 100 largest law firms, which law school in the Go-To top 10 has the least expensive tuition?

Hint: Tuition will only(?) cost you $52,016 at this elite law school and still 49 percent of grads wind up at large law firms.

See the answer on the next page.

While many law students around the country are still staring down a bar exam next week because Mola Ram demands his ritualistic sacrifice, some states had already pushed the bar exam to September.

Alas, a date that was once seen as an abundance of caution is now looking as dangerously optimistic and the bar examiners in Georgia have seen enough to know to call it.

The new plan is for an October online exam as many jurisdictions are adopting. Online exams aren’t a panacea and kick up concerns over technology infrastructure, examinee privacy, and proctoring procedures. But it does come with the perk of not exposing examinees to a deadly virus so that’s fair enough comparative advantage at this point.

While UBE jurisdictions have been reticent to move online given the NCBE’s hostage-taking arguments, Georgia doesn’t have that problem. The next step will be the various UBE jurisdictions realizing that they also aren’t beholden to the NCBE’s mandates. If they want a portable bar exam score, they can approach professional licensing authorities in nearby states and negotiate reciprocity themselves. It’s literally how we used to do it all the time.

If state legislatures could be bothered to clear the document of bills banning Sharia law, or requiring high school sports athletes to stand for the national anthem, or any one of the hundreds of nonsense distractions they debate daily and just consider how to best regulate the legal profession in an economically intertwined regional and national market we could get attorneys portable licenses from well-regulated law schools without requiring antiquated bar exams at all.

Dare to dream.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Sometimes the wisest legal strategy is a PR nightmare. Sometimes the best public relations move can violate the law. And sometimes a lousy legal strategy will lead to widespread public condemnation, but the Trump administration steers full speed ahead into the iceberg anyway because they’ve been inhaling the putrid exhalations of the wingnutosphere so long they can hardly tell which way is up.

This is one of those times.

After Homeland Security shock troops got caught throwing racial justice protestors in Portland, Oregon into the back of unmarked vehicles and driving them to an undisclosed location for questioning, Acting DHS Secretary Chad Wolf, best known as the architect of the child separation policy, took to the airways to defend his agency.

“Earlier this week, I called not only the mayor but the governor,” Wolf told a sympathetic Sean Hannity on Friday. “I offered DHS support to help them locally address the situation that’s going on in Portland. And their only response was, ‘Please pack up and go home.’ And that’s just not gonna happen on my watch.”

Which is big talk for a lobbyist with zero law enforcement experience and no legal background who happened to be the last guy standing after everyone else got fired and couldn’t even get confirmed to his position.

The “situation” Wolf refers to is 50 days of protests and scuffles with police, with minor property damage to federal buildings in downtown Portland. But with Trump threatening to “take over” Democratic cities to control everything from protestors to crime generally, the DHS swung into action to implement the president’s dystopian plan.

The legal justification for the crackdown appears to be a pasted together amalgam of 40 U.S.C. § 1315, which empowers federal agents to protect federal property, and a June 26 Executive Order about protecting sacred Confederate monuments. The order was largely ignored at the time, since it was larded with nutbaggery about imagined Marxists who “have sought to impose that ideology on Americans through violence and mob intimidation” and warnings about wild-eyed extremists clamoring for “many existing religious depictions of Jesus and the Holy Family [to] be purged from our places of worship.”

As constitutional lawyer Steve Vladeck points out, 40 U.S.C. § 1315 only empowers federal agents to arrest citizens for federal crimes which those agents have witnessed or have probable cause to believe have been committed. This would not extend to unleashing squads of heavily armed men to round up random protestors for detention and interrogation, as they are purported to have done with 29-year-old Mark Pettibone last week.

“It was basically a process of facing many walls and corners as they patted me down and took my picture and rummaged through my belongings,” Pettibone told Oregon Public Broadcasting. “One of them said, ‘This is a whole lot of nothing.’”

After being Mirandized and declining to answer questions without a lawyer present, Pettibone was released without charge or documentation. DHS later acknowledged that it had detained Pettibone, with Acting Homeland Security Deputy Secretary Ken Cuccinelli telling NPR that agents “believed they had identified someone who had assaulted officers or a position – a federal building there, the courthouse. Upon questioning, they determined they were – they did not have the right person, and that person was released. So – but all that questioning took place out of reach of a mob that had been gathering in one point, so that’s how that concluded.”

So a bunch of storm troopers jump out of a van and chase down a few stragglers walking home from a protest, they catch some skinny white dude dressed in black — just like everyone else! — and decide that they need to question him about some unspecified federal crime, remove him from the scene because of a “mob,” and then get to detain him without charge? Sounds legit.

On Saturday, Oregon Governor Kate Brown sued D.H.S., C.B.P., the U.S. Marshals Service, and the Federal Protective Service, seeking to enjoin them from warrantless detention of citizens exercising their First Amendment right to protest and walk down the street unmolested in the United States of America.

Portland Mayor Ted Wheeler decried the federal government’s escalation, which is making a tense situation far worse.

“My residents don’t know who a federal officer is, or a local police officer or a county deputy or a state patroller. They don’t know and they don’t care. It’s all the same to them,” he told Oregon Public Broadcasting. “On Friday night, after the federal police starting gassing people about 300 people came to my house and wanted to know why I allowed our police officers to gas people, which of course I didn’t and they didn’t. But it’s a distinction without a difference in the eyes of the public, and I believe the president and his people know that.”

And then came the moms.

On Saturday, a few dozen mothers showed up at the federal courthouse to to shield protestors from federal agents.

Last night, there were hundreds.

Would DHS really pepper spray hundreds of middle aged mothers? They would!

They also managed to beat the crap out of a navy veteran asking them to uphold their oath to the constitution in a video that wound up going viral.

And apparently, they plan to do a whole lot more of it. The Chicago Tribune reports that DHS will be sending 150 troops to Chicago this week to see if they can make a bad situation there even worse.

Spoiler Alert: They can, and they will.

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Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.