Legal Writing

Behind the Scenes of the ?Such As? Case

By Ken Adams

Thanks to the litigation in Lawler Mfg. v. Bradley Corp., recently I discovered the nuances of such as. That led me to write about such as in this post.

Yesterday I received a message from Wayne Turner, a litigation partner in the downtown Indianapolis office of Bingham McHale. I enjoyed Wayne’s message, and I thought you might too, if you found my such as post of interest. Here’s Wayne’s message:

As the lawyer who argued the Lawler v. Bradley case (but fortunately did not draft the agreement), I appreciated your reference to the inferential meaning of the absent comma?not the biggest point, but one the lower court treated as wholly insignificant. The main drivers in the case were probably that (a) the specifically mentioned products had been sold by Bradley before the patent infringement began (so this phrase was designed to “protect” them in particular), while the other products to which Bradley later tried to apply this contract term were mere accessories to the “new” infringing product, and (b) an Indiana Supreme Court case treated “such as” generally as a restrictive clause. Black’s (at least my 1983 edition) did as well.

Being from Indiana, we could not resist this basketball analogy in our brief on appeal:

If the Indiana Pacers negotiated a trade with the Washington Wizards for a player ?such as Antawn Jamison [21.6 ppg, 10.6 rpg] or Caron Butler [21.9 ppg, 4.6 ppg],? the Pacers would be shocked if Darius Songaila [5.6 ppg, 1.3 apg] arrived in Indianapolis the next day.[1] Bradley erects a straw-man when it characterizes Lawler?s position as being that ?emergency shower or eyewash? is an exclusive listing of products subject to reduced-royalty treatment. (Bradley Br. at 15.) The License Agreement provides reduced-royalty treatment to products of like or similar character to emergency showers and eyewashes. If Bradley were combining other, similar products to Lawler valves and applying the reduced-royalty treatment, Lawler would have no complaint?just as the Pacers would have no complaint if, under the above-mentioned agreement, they received (a healthy) Gilbert Arenas [22.4 ppg, 5.9 apg] instead of Jamison or Butler. The central point Lawler has repeatedly made is that generic piping and cabinet assemblies, which have no independent value or marketability, are not of like or similar character to emergency showers or eyewashes.

[1] All statistics current as of January 10, 2008, and available at http://www.nba.com/wizards/stats/index.html.

Full post as published by AdamsDrafting on July 18, 2008 (boomark / email).