Quote:
Originally Posted by mountainmiester
And let's not forget the CCBill case where they lost there too.
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In fairness to P10, let's
also not forget that in at least one case (P10 v. VISA), they were effectively cut off at the knees by the court and not permitted to take the case to trial, despite seeming to have a fairly strong case.
A district court dismissed that case, at which point it was kicked up to the 9th circuit court of appeals. A panel of judges upheld that decision in a 2-1 vote.
According to the dissenting judge on the appellate panel (Alex Kozinski, who is also the chief judge of the 9th), the other two members of the panel engaged in some pretty questionable interpretative gymnastics in order to avoid reversing the district court's dismissal of the case.
Here's how Kozinski summed up his dissent:
Quote:
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This is an easy case, squarely controlled by our precedent in all material respects. Fairly applying our cases to the facts alleged by Perfect 10, we should reverse the district court and give plaintiff an opportunity to prove its case through discovery and trial. In straining to escape the strictures of our caselaw, the majority draws a series of ephemeral distinctions that are neither required nor permitted; the opinion will prove to be no end of trouble.
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Anybody who is interested in hearing more can read
the opinion and come to their own conclusions. For what it is worth (which, admittedly, ain't much) I find Kozinski's analysis the more persuasive of the two.
This isn't to say that P10 necessarily would have prevailed in its case against VISA and the other defendants involved; just that I agree with Kozinski that P10 had established a case that was sufficiently strong to proceed, and the court should have granted P10 the opportunity to take it to trial.
In other words, at least one of Norm's previous "bites at the apple" might have been improperly interrupted before he actually had the chance to sink his teeth in. ;-)