Troutman Sanders LLP: Patent Litigation as MDL ... The Next Frontier?

Troutman Sanders LLP: Patent Litigation as MDL ... The Next Frontier?

By Robert Angle

On January 26, 2012, Bear Creek Technologies, Inc. ("Bear Creek") filed a Notice of Filing Motion for Multi-District Litigation pursuant to 28 U.S.C. § 1407, in Bear Creek Technologies, Inc. v. RCN Telecom Services, LLC, Civil Action No.: 2:11-cv-103 (RAJ/FBS).  This is an interesting new chapter in this long-running saga. 

Back on February 22, 2011, Bear Creek launched patent litigation against 23 different telecommunications companies in the EDVA, and the case was assigned to Judge Raymond A. Jackson in the Norfolk Division.  After numerous several months and numerous (340+) docket entries, Judge Jackson -- perhaps anticipating the AIA -- raised the issue of misjoinder sua sponte and pursuant to several motions to sever, and then proceeded to drop all of the defendants except RCN Telecom Services (the first named defendant in the case).  That August 17, 2011 Memorandum Opinion and Order can be found here

Undeterred, Bear Creek proceeded to file new actions against the former defendants in the EDVA (Bear Creek Technologies, Inc. v. Aptela, Inc. , 2:11-cv-00460 (RGD/TEM); Bear Creek Technologies, Inc. v. Primus Telecommunications, Inc., et al., 2:11-cv-00461 (HCM/FBS)), the North District of Georgia (Bear Creek Technologies, Inc. v. Cox Communications, Inc., 1:11-cv-03784 (AT)), and the District of Delaware (Comcast Cable Communications, LLC v. Bear Creek Technologies, Inc., 1:11-cv-00721-GMS (D. Del.); Charter Communications, Inc. v. Bear Creek Technologies, Inc., 1:11-cv-00722-GMS (D. Del.); Bear Creek Technologies, Inc. v. Vonage Holdings Corporation, et al., 1:11-cv-00723-GMS (D. Del.); Bear Creek Technologies, Inc. v. CSC Holdings, LLC, 1:11-cv-00724-GMS (D. Del); Bear Creek Technologies, Inc. v. Mediacom Communications Corporation, et al., 1:11-cv-00725-GMS (D. Del); Bear Creek Technologies, Inc. v. Qwest Communications International, Inc. et al., 1:11-cv-00726-GMS (D. Del.); Bear Creek Technologies, Inc. v. T-Mobile USA, Inc., 1:11-cv-00727-GMS (D. Del.); Bear Creek Technologies, Inc. v. 8x8, Inc., 1:11-cv-00728-GMS (D. Del); Bear Creek Technologies, Inc. v. AT&T, Inc., et al., 1:11-cv-00729-GMS (D. Del); and Bear Creek Technologies, Inc. v. Time Warner Cable, Inc., et al., 1:11-cv-00730-GMS (D. Del)).  

Perhaps liking what it found in Delaware, Bear Creek is now moving to have the EDVA cases and the Northern District of Georgia case transferred to the District of Delaware, and to have all of the cases consolidated for purposes of Multi-District Litigation.  A copy of the Notice filed by Bear Creek in the Bear Creek Technologies, Inc. v. RCN Telecom Services, LLC, Civil Action No.: 2:11cv00103 (RAJ/FBS) can be found here.

Plainly, Bear Creek did not intend to set out on this tortured path, but it may well achieve the consolidation of its claims against 28 different defendants by a different means.  Given the limitations of joinder under the AIA, perahps MDL will be the new pathway to consolidating cases against multiple defendants ... if Bear Creek's efforts are successful.

Copyright © 2011, Troutman Sanders LLP

Virginia IP Law

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