CORCAMORE, LLC v. SFM, LLC — Oral Argument — Supreme Court Petition Tracker

0:15 Judge Reyna Councillor Thomason, you reserve two minutes of your time for rebuttal?

0:19 Appellant Attorney (Charles L. Thomason) That is correct, Your Honor.

0:20 Okay.

0:21 You may proceed, sir.

0:23 On behalf of Cork and Moore, may it please the Court, the importance of the unifying

0:27 interpretation of Lanham Act Section 14, along with a review of the Board's errors in the

0:35 Rule 37 sanction, as amplified by unwritten inherent powers, provide, I believe, strong

0:40 reasons to reverse on the Lanham Act issues and remand, and to vacate the sanctions order

0:46 instead of having a ruling on the merits.

0:51 Now, I'd like to start back with the beginning of the case.

0:55 At the outset, SFM filed an amended petition that pled assertions about Cork and Moore

1:02 and the use of its mark that were mistaken, that were unprovable.

1:06 And those allegations were controverted from the outset.

1:09 And they were protected.

1:10 They were particularly important to Section 14's standing if the Board chose to apply

1:16 the Lexmark two-prong standard, that is, redressability and causal nexus, as had been later applied

1:22 in the Belmora cases from the Fourth Circuit.

1:25 So the strategy of controverting the facts and raising the law in merits motions, coupled

1:32 with private overtures to settle the case, were the strategy chosen.

1:38 The strategy, of course, failed.

1:39 But the use of merits motions and then private settlement discussions—

1:46 Judge Chen This was the settlement where you wanted them to pay you money, right?

1:50 Appellant Attorney (Charles L. Thomason) In exchange for two registrations of long-standing marks, yes, Your Honor.

1:56 So there was going to be an exchange there.

2:00 Now when the Lexmark motion was made—that's the first motion challenging standing—the

2:06 Board simply said, Lexmark doesn't apply because it's a likelihood that you're going to be

2:10 fined.

2:10 That's a likelihood of confusion action under Section 43A, and this is a Section 14 likelihood

2:16 of confusion.

2:17 They went no further in terms of trying to analyze what the Fourth Circuit said were

2:21 the close wording, similar wording, in 43A and 14.

2:27 So then we had two further motions, so I'll call them the Belmora motions.

2:32 When I sent the settlement letter, I had no idea that Belmora was out there in the Eastern

2:37 District and was going to later be in the Fourth Circuit.

2:40 But two years later—that's the two years from the time the first Lexmark motion was

2:44 decided until the—

2:46 Judge Reyna There's two general issues here.

2:48 And just to bring a little bit more clarity to the argument, you're arguing that SFM lacks

2:54 standing to bring the cancellation application, correct?

2:57 Correct.

2:58 And then you're also arguing that the Board lacked authority to terminate the

3:02 proceedings or enter a default judgment as a form of sanction.

3:07 That's correct.

3:08 So let's go with the standard.

3:10 I'll read the admission first.

3:11 Appellant Attorney (Charles L. Thomason) Yes, Your Honor.

3:12 All right.

3:13 So the Board rejected Lexmark.

3:15 It then waited over a year and a half to see what the Fourth Circuit would do in the Belmora

3:20 cases.

3:20 And after receiving the ruling that supported Corkamore's argument in favor of Lexmark,

3:26 the Board simply said it would not consider it, and it moved on.

3:30 It did so because of this Court's decision in Cuba Tobacco.

3:34 The Board's view is that two cases, the two decisions are in conflict or irreconcilable,

3:40 and that both parties are liable.

3:40 I don't totally accept that, but that is their view.

3:44 And if you accept their view, it creates what I believe is a rather untenable situation.

3:49 If a party files a cancellation action in Alexandria in federal court, it must adhere

3:55 to the Fourth Circuit's ruling in Belmora.

3:57 You go two blocks away, as it were, to the TTAB office and you file a petition for cancellation

4:03 seeking exactly the same relief on exactly the same facts, and you could ignore Lexmark

4:08 and Belmora.

4:09 And similarly, the next step is, if Belmora had taken the decision from the TTAB to this

4:15 Court, what would have been the rule?

4:17 And if Corkamore had taken this case to the Eastern District of Virginia, then certainly

4:22 Lexmark would have been the rule.

4:23 So I don't believe that that's a situation that should be allowed to stand.

4:28 When Congress passed the review statute, 15 U.S.C. 1071, it created co-equal appellate

4:34 review jurisdiction in this Court and in the Fourth Circuit.

4:37 This Court under A.

4:38 Section A, the Fourth Circuit, under B, through cases that come from the Board to the Eastern

4:44 District of Virginia, into the Fourth Circuit.

4:46 So it is highly important that both circuits interpret the same Lanham Act statute uniformly

4:53 so that we have consistent results.

4:55 And to find uniformity, we would look to the Supreme Court.

5:00 And where?

5:00 In the Lexmark case.

5:02 So whether it's the holding in Lexmark or it's the use of the traditional methods of

5:06 statutory interpretation that are required.

5:08 However, following the Lexmark case, I urge the Court to consider how to reconcile the

5:14 Belmore case and the Cuban tobacco case.

5:16 Now what I've suggested is that Cuban tobacco really is about whether or not a Cuban company

5:21 is entitled to go to court or go to the Board and seek to cancel a registration.

5:27 It's really just gives a rather short discussion of the second prong.

5:32 And that's the issue here, is the likelihood of being damaged as a result of actual use

5:38 of the mark by the other party, in this case, Corkamore.

5:41 Now since at the starting point they had argued, or pleaded rather, facts about Corkamore that

5:47 are untrue, or cannot be proved, and they've had to kind of morph into some other version

5:53 of facts that are not in the complaint, I think the Board erred in sort of taking that

5:59 as true and dismissing Lexmark.

6:01 So Cuban tobacco, again, it's about whether or not this Cuban company, who's embargoed

6:06 from doing business in America.

6:08 Has a cause of action.

6:09 Court says yes.

6:10 The redressability prong, the first prong of Lexmark, is met.

6:14 The second prong is either not discussed, or it is distinctly different from this case.

6:19 The being damaged prong was about...

6:22 Judge Reyna What about 1064?

6:24 Did S&P plead sufficient facts under 1064 to ask for any...

6:30 Appellant Attorney (Charles L. Thomason) No, Your Honor.

6:31 They did not plead the two prongs of Lexmark, specifically the second prong.

6:36 Judge Reyna Outside of Lexmark.

6:37 I'm talking about 1064.

6:39 These are sufficient facts that were pledged.

6:42 Appellant Attorney (Charles L. Thomason) It depends on the interpretation of being damaged in that statute.

6:46 So if being damaged meant one thing in Lexmark and Belmora, being damaged has historically

6:52 meant just a reasonable belief.

6:54 Judge Reyna Being damaged, that's a standard under 1064?

6:58 Appellant Attorney (Charles L. Thomason) Yes, Your Honor.

6:58 That's a statutory term.

7:02 All right.

7:03 So I believe this Court has both review authority as well as supervisory authority.

7:10 I'm not sure.

7:10 I believe they have both review authority over proceedings in the TTAB.

7:12 And I would ask that it exercise its authority to distinguish Cuban tobacco as a case not

7:18 on point, while Belmora is on point, and remove any idea in the Board's mind that there is

7:24 a conflict between the two.

7:27 Now, I think the transitioning...

7:31 I think the further problem is that the motions that were made that addressed the merits by

7:36 Corkamore...

7:37 about Corker Moore, motions that controverted jurisdictional facts because standing has been

7:43 held to be jurisdictional, and that ask the board to apply federal court precedent cannot be deemed

7:49 frivolous or sanctionable bad faith. I believe they are objectively reasonable and should be

7:56 encouraged, that as well as settlement. Now, I want to focus in particular on a Rule 37b

8:02 sanction, which erroneously ruled, as a matter of fact, that certain supplemental discovery was

8:09 never sent and never received. And that's an erroneous finding that I think is foundational

8:15 to the Rule 37 sanction, and therefore, that sanction b should be reversed. So, here's the

8:21 Judge Reyna correct facts. And are these are... Apart from the merits that you're entering now, did the court

8:26 have authority to issue sanctions in this case? Under 37b, if it

8:31 Appellant Attorney (Charles L. Thomason) fits that, yes. But the foundational part was the finding on page, I think it's 87th, the

8:41 appendix, that the supplemental discovery, which was required by the order compelling

8:45 supplemental discovery, that that was never sent, never received. But there's no dispute that, on

8:51 the date due, that an envelope was postmarked to SFM's lawyers, it was delivered, they actually

9:00 received it, and inside of it, there was a letter that said,

9:02 it's undisputed that it contained several things. It contained Corker Moore's supplemental responses

9:07 to Rule 34 requests, which referred to the documents on the thumb drive. It included

9:14 supplemental responses to interrogatories. So, it was actually served, it was actually received,

9:20 and for the board to conclude that no responses and no documents were timely and actually served

9:25 and actually received is clearly erroneous. And for that reason, any sanction based on that erroneous

9:32 should be revert.

9:33 The regulation requires you to submit the discovery or serve it by email, right?

9:40 That is the general rule that was, became effective in 2017. And so, if I had to do

9:47 over again, and I had a way to email, you know, a 12 megabyte file, then...

9:52 Why didn't you use a file transfer site? That's what the other side did, right?

9:57 They do have, in their large firm, a section of their network, I assume, that allows that. I don't have that.

10:03 I'm a solo. I, you know, I use a paper calendar.

10:07 So, you are correct, Your Honor. I should have done better on that. I should have done better.

10:12 But I think moving then to my next argument about why the sanction is incorrect is because it was an abuse of discretion.

10:19 The court, the board did not consider the most relevant factors that must be considered before such a harsh sanction is imposed.

10:27 The first one being, there was no material non-disclosure. They did actually get the documents.

10:32 In fact, the documents.

10:33 Most of the documents.

10:34 Hadn't already been produced previously.

10:36 They just hadn't been, didn't have Bates numbers on them.

10:38 So, the supplemental production was a Bates stamp document.

10:41 So, there was no non-disclosure.

10:43 Secondly, there was no prejudice.

10:45 In fact, if you word search the court's final opinion, you will not find the word prejudice.

10:50 There is no finding of prejudice.

10:51 There's no prejudice tied to something material and not being disclosed.

10:55 And I think that makes this case stand quite distinct from cases this court has heard on.

11:00 Spoliation of evidence for people to destroy things that are material.

11:03 That were inequitable conduct cases where people do not disclose references.

11:07 Judge Chen Well, I guess the theory is, is if, if, you know, the, it sounds like the board concluded that you had been really doing everything you could to delay the proceeding and obstruct the progress of the proceeding.

11:23 I'm not saying you did, but let's just say that's the way they looked at it.

11:27 And the board had lost total confidence that you would ever comply with.

11:33 Their orders, their discovery orders and other orders.

11:36 Then, in that sense, the other side is prejudiced by, you know, your side's inability to actually follow the rules.

11:48 Appellant Attorney (Charles L. Thomason) The key point I think you mentioned there was delay.

11:50 So, the board found that I had delayed the case or Corker Moore had delayed the case.

11:54 If you actually look at the chronology again, the case is filed.

11:58 The Lexmark motion is filed.

12:00 It's decided in April of 2015.

12:02 And two years later.

12:03 They decide the Belmora case.

12:06 Or they decide what to do about Belmora.

12:08 So, you've got over a two-year time window, if you want to call it delay, that was occasioned by the Belmora cases and by the board's decision to stay the case pending the Fourth Circuit's ruling.

12:21 After that, they did not hear any of my motions.

12:23 They would not hear Corker Moore's motion to compel.

12:25 Despite multiple requests, they would not hear a motion for summary judgment.

12:29 They wouldn't hear any of the motions.

12:30 So, there was no suspension of the proceedings for the motions that were filed.

12:33 Because they just disallowed them.

12:36 So, then it goes to the end.

12:37 And the last thing is, in time, the only thing that happens in the time between the motion compelling settlement of discovery and the final order is this ruling that it was never actually sent, actually never actually received.

12:50 So, I believe the last thing is the order itself, compelling discovery, specifically said, here's the lesser sanction.

12:57 It's not produced.

12:58 It's going to be procured.

12:59 That was the sanction that was warned.

13:01 There was no warning of the order itself.

13:03 There was no warning of the terminating sanction that the board ultimately entered.

13:07 That just comes out of their opinion.

13:09 The second aspect of the order compelling discovery says, and I quote, that we can, that any potential prejudice can be remedied by extending the period, by extending the discovery period as necessary.

13:23 Therefore, if they said, oh, well, you sent this by mail on Thursday, and we didn't get it until Saturday.

13:30 You sent it by mail on Thursday.

13:32 And then we had you email it to us.

13:34 On the next day, Friday, the attorney could have said, well, we'll give you more time.

13:39 We'll give SFM more time.

13:40 Judge Reyna You're into your rebuttal time.

13:41 Would you like to?

13:41 Okay.

13:41 Appellant Attorney (Charles L. Thomason) I'll conclude at that point.

13:43 Thank you, Your Honor.

13:43 Okay.

13:43 Thank you.

13:46 Judge Reyna Councillor Wilbur.

13:51 Appellee Attorney (Johanna Wilbert) The two issues before this court are straightforward and simple.

13:55 SFM had a right to petition the TTAB to cancel the Sprout Mark under Section 14 of the Lanham Act.

14:03 And second, the board acted within its authority when it sanctioned Corkamore for repeatedly

14:08 ignoring board orders and for other egregious behavior, turning first to issues dealing with the right to petition.

14:17 Corkamore's assertions about disputed facts regarding use distract from the properly pled basis for SFM's petition for cancellation.

14:26 Simply looking at the trademark registrations at issue provides a proper basis to petition the TTAB for cancellation.

14:33 Specifically here, SFM has pled that it owns trademark registrations for special purposes.

14:39 For Sprouts and for Sprouts Farmer's Market in connection with retail grocery store services.

14:44 It also pled that Corkamore owns a federal registration for Sprout for use in connection with vending machine services.

14:53 Vending machine services fall under international class of good 35, as does grocery store services.

14:59 As a result, we have registrations dealing with the same class of goods and dealing with nearly identical marks.

15:05 That is included in the amended petition.

15:07 Turning to the law that allows SFM the right to petition.

15:12 SFM's right to petition is governed by section 14 of the Lanham Act.

15:17 And section 14 of the Lanham Act states that the cancellation procedure is available to any person who believes that he or she will be damaged by the registrations.

15:28 This court recently in Empresa Cubana cited Lexmark and noted that Lexmark clarified issues sometimes discussed in terms of standing.

15:39 Which are more appropriately discussed and viewed as interpretation of statutory causes of action.

15:44 Here, the statutory cause of action is section 14 of the Lanham Act.

15:49 And that's a statute that must be interpreted as instructed by Lexmark.

15:53 As a result, Lexmark does not overrule or undermine section 14 jurisprudence.

16:00 Instead, the two can appropriately coexist with no conflict.

16:04 As the Federal Circuit did when it ruled in Empresa Cubana.

16:09 Judge Chen Think about the Fourth Circuit opinion, though.

16:10 It found otherwise, right?

16:13 Appellee Attorney (Johanna Wilbert) No.

16:15 Corcamore's reliance on Belmora is misplaced.

16:17 First, the ultimate holding of Belmora favors SFM.

16:21 And that Belmora had held that there was standing before the TTAB.

16:25 And that case found that the Lanham Act authorized a foreign manufacturer to bring a trademark cancellation.

16:32 Which ultimately supports SFM's right to bring its own cancellation.

16:36 Judge Hughes Well, and did the Fourth Circuit use ours?

16:39 Did it follow our standard?

16:39 Or did it follow the Lexmark articulation?

16:44 Appellee Attorney (Johanna Wilbert) Yes.

16:44 But when discussing Lexmark in Belmora, that's done in connection with the section 43 false association claim analysis.

16:53 And in the section of the decision that addresses the cancellation brought under section 14,

16:59 it doesn't get into which standard should apply.

17:02 Instead, it's a very short section of the decision.

17:04 And it said that

17:06 the district court improperly read a use requirement into the Lanham Act.

17:11 And for those reasons, it finds that there was standing.

17:15 So Belmora focuses on the use requirement, which is not present here and not at issue.

17:21 And third, Belmora is a Fourth Circuit case and it's not controlling on issues of the TTAB.

17:27 Thus, it was not a reversible error for the TTAB to decline to consider Belmora,

17:32 especially when the TTAB applied Federal Circuit precedent.

17:36 That is squarely on point.

17:39 And under the precedent that is on point,

17:41 SFM has standing.

17:43 SFM has at least two real interests in the proceedings.

17:46 First, SFM and its related grocery stores have a trademark registration.

17:51 In Cunningham v. Laser Gulf,

17:54 this court explained that registrations and the products sold under the mark they register

17:59 are sufficient and necessary to establish a direct commercial interest in standing to petition for cancellation.

18:07 Thus, under Cunningham v. Laser Gulf,

18:09 SFM has standing.

18:11 As a second basis for its interest in the proceeding,

18:14 SFM and its related companies operate grocery stores using the Sprouts and Sprouts Farmer's Mark registrations.

18:22 Under Section 15 U.S.C. 1055,

18:26 the use of a mark by a licensee or related companies inures to the benefit of the registrant.

18:31 Thus, SFM, as the registrant,

18:34 has a real interest in the reputation of stores using the mark.

18:37 Judge Reyna So let's assume you have standing.

18:40 What about the authority of the Board to issue sanctions in this case?

18:45 Appellee Attorney (Johanna Wilbert) Yes.

18:46 The Board has two grounds of authority for issuing the sanctions it issued in this case.

18:51 First, it has express authority under Trademark Rule 2.120.

18:57 Trademark Rule 2.120 allows the Board to issue sanctions in discovery disputes.

19:04 And that rule explicitly incorporates

19:07 Federal Rule of Civil Procedure 37.

19:10 Federal Rule of Civil Procedure 37 identifies default judgment as a sanction that can be entered.

19:17 Judge Chen And we endorse that in Benedict, right?

19:20 Appellee Attorney (Johanna Wilbert) Yes.

19:21 Benedict is an example where this Court has held that the dismissal of a cancellation,

19:26 actually under less egregious circumstances,

19:29 is an appropriate sanction.

19:31 So when the Board issued its sanction here,

19:33 it was relying on express rules,

19:36 as well as this Court's authority.

19:38 Thus, it was not an abuse of discretion.

19:41 Something else to point out is that

19:44 there is not a requirement to find that

19:48 the documents not produced were material.

19:51 What the rules say is that if you have repeated violations of a Board order

19:57 and lesser sanctions are not appropriate,

20:00 further sanctions can be issued.

20:02 So here's the question.

20:03 Was there a repeated violation of a Board order?

20:06 And this can be addressed by looking through the appendix.

20:12 And if we turn to the table that's outlined by the Board,

20:16 which is at 87,

20:18 the Board, in a detailed way, identifies multiple violations.

20:22 Judge Reyna You said 87?

20:24 Appellee Attorney (Johanna Wilbert) Appendix 87.

20:26 And it carries over to 88.

20:29 The Board identified what it found to be multiple violations of its order.

20:34 Thus, the sanction was not,

20:36 based on one misproduction of documents.

20:41 The first example that the Board cites

20:44 is that it ordered Respondent to appear for a 30v6 deposition.

20:48 Respondent refused to appear for that deposition,

20:50 despite the Board's order to do so.

20:53 The Board, in its decision, also notes

20:56 that when Petitioner attempted to reschedule the deposition,

20:59 Corkamore served objections and again refused to appear,

21:02 despite the previous order to show up for the deposition.

21:05 That's one example that would support this sanction.

21:09 The Board continues and identifies other details of its order

21:14 that Corkamore did not apply with.

21:16 So, the notion that this was unfairly based on one errant email

21:21 or one set of documents is just not true,

21:24 and it misrepresents the Board's very careful analysis and decision.

21:28 Further, the issue of whether a lesser sanction would have been appropriate.

21:33 The idea that more time should have been given,

21:35 or that there was a lesser sanction that would have changed this case.

21:39 Well, the Board addressed that as well.

21:43 The Board issued the first sanction in this case,

21:46 which starts at Appendix 16,

21:50 and the sanction is discussed in that order denying a motion to dismiss

21:54 at Appendix 23.

21:57 This first sanction was violated.

22:00 Judge Hughes Is there a restriction on being able to file papers or motions?

22:04 Appellee Attorney (Johanna Wilbert) It is.

22:05 Judge Hughes Okay.

22:06 Appellee Attorney (Johanna Wilbert) That sanction was violated,

22:08 and the Board issued a reminder of that first sanction,

22:10 which can be found at Appendix 29.

22:13 That sanction was ultimately lifted in the case,

22:15 but then a second sanction was entered.

22:19 The second sanction was for abuse of discovery in filing frivolous motions,

22:25 and that can be found at Appendix 71.

22:28 That was violated,

22:29 and before issuing any type of draconian order,

22:32 the Board reiterated the second sanction,

22:34 which can be found in its decision,

22:36 at pages 73 through 74.

22:39 In that same order,

22:41 it notes the objection to the case schedule was a violation of its sanction,

22:46 and again,

22:46 reminds Council what needs to be done to comply with the order.

22:50 So there were two earlier sanctions issued.

22:53 Both sanctions were violated,

22:55 and the Board provided reminders of that violation.

22:58 When the bad behavior continued,

23:00 a third Board sanction was issued,

23:02 which is why we're here today.

23:04 So the idea that there were repeated,

23:06 repeated violations of Board sanctions is present here,

23:11 and there's a reasonable basis to believe that lesser sanctions would not be appropriate.

23:17 That itself is one basis to support this final judgment.

23:22 Judge Hughes The other side says,

23:23 well, the order in granting the motion to compel,

23:27 Judge Chen the Board suggested there could be a sanction like preclusion or something like that.

23:34 Appellee Attorney (Johanna Wilbert) Yes, there are lesser sanctions along the way that the Board suggested,

23:38 but in looking at its decision,

23:43 particularly pages 87 and 88,

23:45 it identifies that there are multiple violations.

23:48 So the lesser solution that you've brought up would not be appropriate for the violation of not showing up to a deposition.

23:56 That's never been rectified.

23:57 Judge Reyna So how would you say this case compares to our case in Benedict?

24:04 Appellee Attorney (Johanna Wilbert) From what I understand of the facts in Benedict,

24:06 I believe these violations are more reasonable.

24:09 They're more egregious.

24:09 While it's true that the discovery violations are similar to those in Benedict,

24:14 the Board's inherent authority section in its decision also identifies quite egregious behavior

24:20 that I don't believe was here,

24:21 was present in Benedict.

24:23 Some of that egregious behavior includes hanging up on counsel during meet and confers,

24:29 refusing to meet and confer,

24:31 outright refusing to read or open emails from petitioners' counsel for years.

24:36 That behavior is summarized

24:39 by the Board at Appendix 89,

24:41 and I think here we have Benedict really focused on the discovery violations

24:46 under Trademark Rule 2.120,

24:49 but this case we also have the sanction for the egregious behavior that the Board found,

24:56 and that is discussed in the Board's decision at Appendix 89 through 91,

25:01 and that is a completely separate ground for issuing the sanction of a dismissal here.

25:08 Unless the Court has any further questions,

25:11 SFN asks that you affirm the Board's decision.

25:14 Okay.

25:15 Thank you.

25:16 Appellant Attorney (Charles L. Thomason) Thank you.

25:17 Judge Reyna Mr. Thomason, you have a little bit under two minutes.

25:25 Appellant Attorney (Charles L. Thomason) Thank you very much.

25:26 I just wanted to mention the Benedict case that the Court just asked about.

25:30 In Benedict, the pro se plaintiff did not answer any discovery whatsoever, ever, for two years.

25:36 It did not respond to a motion to compel.

25:38 It did not comply with the motion to compel.

25:40 To me, that would probably be egregious and would explain what Benedict says.

25:45 I think a better...

25:46 A good example, too, is Council's SFM's brief cites the case R. Bruton,

25:52 and the R. Bruton case is something I'm not that familiar with,

25:56 which was interference practice.

25:57 There was some requirements.

25:58 Something had to be done by a certain date.

25:59 The question was, you didn't do it, so what's the appropriate sanction?

26:02 In R. Bruton, the sanction was default and dismissal.

26:06 R. Bruton, though, cites a Gerritsen case that had similar facts

26:11 where there was no sanction because there was no prejudice.

26:14 There was no discussion of a lesser sanction.

26:17 Judge Chen Can you explain your side of the story on the deposition

26:19 and how the deposition never ended up happening,

26:23 even after over a year that it was noticed?

26:27 Appellant Attorney (Charles L. Thomason) The deposition was noticed originally and didn't occur.

26:34 Then there's an order that says you'll have the deposition.

26:37 Then both parties served deposition notices.

26:41 It led to a stalemate.

26:43 They would not produce anybody, so I said I wouldn't produce anybody.

26:46 I then opted for settlement discussions.

26:49 There's settlement discussions the week leading up to when the deposition date is.

26:53 The settlement discussions did not result in a settlement.

26:57 I filed a motion for protective order.

26:59 The board, in 75 minutes...

27:03 Judge Hughes Same day they denied it.

27:04 Appellant Attorney (Charles L. Thomason) I wasn't aware of it.

27:06 It was at lunch hour.

27:07 They sent an email out.

27:08 I didn't know it was there.

27:09 It was over and done with in 75 minutes.

27:11 In real answer to your question, what's really going on is I mismanaged the stalemate.

27:17 It was a stalemate where no party was going to do what the other party was requesting.

27:22 Their strategy was accepted by the court.

27:25 I'm not defending that.

27:27 I'm saying I could have done better and should have done better on that.

27:29 The order says we can extend the period.

27:32 Judge Reyna Isn't the difference here between this case and Benedict is that

27:36 here you actually violated sanctions orders.

27:40 Appellant Attorney (Charles L. Thomason) By filing documents?

27:41 Judge Reyna No, the court issued a sanction order and you violated that one and then a second one.

27:47 Appellant Attorney (Charles L. Thomason) Those two that I think you're referring to both said no unpermitted filings.

27:53 So violated by filing a request to make a motion I did not believe was egregious or contumacious.

28:01 I made a formal written request.

28:03 May I file a motion?

28:05 And they said no, that violates the order.

28:07 Even asking on a piece of paper is a violation of our sanctions order.

28:11 So again, in hindsight, I shouldn't have done that.

28:14 I really took it as similar to courts where you pre-file motions

28:19 and then the magistrate calls you up and says let's talk about this.

28:22 Don't waste your time with this motion and he never scheduled it.

28:25 So you submit it.

28:26 If you look at my request for a motion to compel, I said let's have a conference.

28:31 I'm available for a conference.

28:32 If there's anything else you need for the conference, let me know.

28:34 But I submitted all the paperwork that had been required.

28:37 So in other instances I did.

28:38 But I do take exception when the court says that it was frivolous.

28:41 A frivolous motion when I asked the board to follow Bill Moore.

28:46 I think it's not frivolous to ask for permission to do something

28:51 even if that's not what exactly the order said.

28:54 And I did call the interlocutory attorney and tried to set things up.

28:59 So in closing, I would just say the board has no inherent authority.

29:04 And I would cite file USC 558B.

29:07 The last thing is in submitting the case,

29:11 the issue is on the record with the court.

29:13 I want to thank the court for giving me this opportunity to discuss it today.

29:22 Judge Reyna Our next case is Apple Inc. v. Unilock 2017 LLC, number 19-1636.