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En Banc oral argument in In re Volkswagen II

By Michael Smith

I?m on my way back from attending the oral argument in the In re Volkswagen II case. I won?t provide a blow by blow of the comments and questions by the Fifth Circuit judges, but there are a few general things I can say. First, a number of the judges were skeptical that the standards for mandamus were present in this case, and some pointed out the fact situation in this case (VW proferred two affidavits from witnesses who claimed inconvenience, and unlike In re VW I in this case the third party defendant affirmatively stated that trial in the Eastern District was not a problem for him) was pretty thin for finding that Judge Ward?s decision was sufficiently wrong to justify mandamus relief. This type of questioning was much more prominent today than it was when I argued the case to the second panel last July.  Second, although there were a number of good questions about what the 1404 analysis requires, and specifically what weight the plaintiff?s choice of forum should receive, even the author of the second panel opinion, Judge Jolly, agreed that the plaintiff?s choice of forum is certainly a factor to be considered, and seemed to concede that to the extent the second panel?s opinion said in places that it was not, that wouldn?t be correct and wasn?t what he intended ? he intended for the panel opinion to reflect the law, and did not believe ? as Plaintiffs argued ? that it was an ?outlier? that was inconsistent with what the other circuits had held on the subject of the weight to be accorded the plaintiff?s choice of forum. To my surprise, although there were pointed questions from several of the judges, the only really ?negative? questioning for the plaintiff came from judges Jolly, Clement and Owen (who were the three members of the second panel) on the standards that should be applied to motions to transfer, and review of those motions and Chief Judge Edith Jones. In comparison to my experience at the second panel argument with these three judges, their questioning was of approximately the same tenor as last July ? but with the exception of Judge Jones, none of the other judges matched it ? in fact only about half the judges asked questions.
Judge Jones expressed a concern that Judge Ward?s venue opinions she had studied were inconsistent in saying whether the travel from Marshall to Dallas was sufficiently inconvenient to weigh in favor of/support/justify a transfer (I wasn?t really clear what she was saying on this point, although she was clearly expressing a concern about Judge Ward?s orders in a number of cases ? not just the one involved in this mandamus proceeding. I don?t know which opinions she is referring to, but I can say from experience that whether the convenience of Dallas-area witnesses supports a transfer in Judge Ward?s court depends heavily on what kind of case is involved and what the witness? testimony is, and how important it is to the case. I?ve had slip and fall and other cases transferred to Dallas, but products cases typically not for reasons I won?t go into here ? see Judge Davis? Network-1 opinion for a better explanation than I could ever give). What she was clear about, however was her concern that if cases that arose in Dallas could be heard in Marshall, Houston cases might start going to Lufkin or Beaumont to be heard. She also said ? and I hope I am relating it correctly ? that travel from Dallas to Marshall in ?deep East Texas? was not via an improved highway (my words ? I?m not sure what the term she used but the implication we heard was that the region wasn?t accessible by major highways). Of course travel between Dallas and Marshall is by Interstate 20, which is as improved as Texas highways get, so it?s possible I simply misheard what she was saying.
There was no mention made by either counsel or by any of the judges of patent cases being heard in the Eastern District, or the AIPLA or ad hoc committee briefs. The en banc court as a whole seemed focused completely (and appropriately, I might add) on whether the standards for mandamus relief were met in this case.

Full post as published by Eastern District of Texas Federal Court Practice on May 22, 2008 (boomark / email).