Patent Law

Low Blow to MoFo

By Gary Odom and Jordan Kuhn

Last Wednesday, former Morrison & Foerster client Ecast sued MoFo for no mojo in Ecast's to-and-fro with Arachnid and Rowe, who had sued Ecast for jukebox patent infringement. Ecast, claiming legal malpractice, wants its money back: a "staggering" $4.8 million in attorneys fees for what it considers a hopelessly botched defense.

According to Law360, "the suit alleges several instances where MoFo's conduct "fell below the applicable standard of care," including failing to submit the complete opinion of Ecast's technical expert, which prompted the court to strike some portions of his testimony and bar the company from challenging or cross-examining Rowe's expert on those issues at trial."

Ecast's complaint:

Critical evidence was therefore ruled inadmissable at trial, thereby prohibiting Ecast from presenting a stronger and more cogent defense to Rowe's infringement allegations. Ecast's defense was so severely compromised, that Ecast had no reasonable chance of prevailing at trial.

Because of it, and other errors, including "failure to pursue appropriate discovery," the complaint claims, Ecast had no choice but to settle.

MoFo is also accused of hooking a gravy train onto Ecast. "What began almost immediately upon hiring [MoFo] was a seemingly endless transfer of this case file from one attorney to another in [MoFo]." The suit notes that in the first 23 months of preparing Ecast's patent defense, 48 attorneys, paralegals and staff billed for work on the matter.

Pouring salt on the wound of alleged errors in representation by MoFo, Ecast squawks that MoFo billed nearly twice the fee initially quoted. According to the complaint, Ecast then was forced to spend an additional $2.65 million on new counsel.

The suit seeks actual damages, plus damages for breach of fiduciary duty, interest and other costs.

MoFo spit on the spat, calling the allegations baseless, and casting Ecast as a deadbeat. "For quite some time, Ecast has owed Morrison & Foerster a substantial amount for past work. Ecast promised to pay those amounts on an agreed-upon schedule. Ecast and its current investors have apparently now decided to try to avoid honoring its promise to pay what it owes."

Full post as published by The Patent Prospector on April 14, 2009 (boomark / email).