Trading Technologies v. eSpeed: Judgment Stayed Pending Appeal

Posted on July 31, 2008 by R. David Donoghue

Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. Jul. 24, 2008) (Moran, Sen. J.).*

Judge Moran granted defendants’ (collectively “eSpeed”) motion to stay judgment pending appeal without requiring a supersedeas bond for the full amount of the judgment, pursuant to Fed. R. Civ. P. 62(d). Plaintiff Trading Technologies (“TT”) argued that the volatility and instability of the financial industry warranted a bond. But the Court held that the evidence proved that eSpeed was currently financially sound and had more than sufficient funds available to make payment, such that the cost of a bond would be a waste of money. The Court noted that eSpeed (which recently merged with an affiliate, BCG Partners) had $340M in first quarter revenues, $150M in shareholder equity and $200M in cash or cash-equivalents on hand. The Court did, however, note that TT could monitor eSpeed’s financial situation and return to the Court if eSpeed later looks like it might become unable to pay.

*  Click here for much more on this case in the Blog's archives.

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Trading Technologies v. eSpeed: No Attorney's Fees

Posted on June 18, 2008 by R. David Donoghue
Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312, Slip Op. (N.D. Ill. May 22, 2008) (Moran, Sen. J.).*

Judge Moran denied the party's cross motions for attorney's fees. Plaintiff Trading Technologies (“TT”) argued that the case was exceptional. But the Court held that it was not for the following reasons:

  • eSpeed's refusal to admit infringement was reasonable. A defendant requiring plaintiff to make its proofs does not alone make a case exceptional.
  • eSpeed's decision not to agree to an interlocutory appeal of claim construction and noninfringement decision was not grounds to make the case exceptional. Although eSpeed argued against an interlocutory appeal, the Court made the ultimate determination.
  • eSpeed's pursuit of its inequitable conduct claim, which it lost after a bench trial, did not make the case exceptional. In the Court's opinion regarding inequitable conduct, the Court ruled for TT, but noted that eSpeed's case was not frivolous – click here to read the Blog's post about that opinion.
  • The jury's willfulness finding did not make the case exceptional. This was especially true because the Court overturned the jury's willfulness decision based upon In re Seagate – click here to read the Blog's post about that case.

The Court noted that neither party in this case acted more outrageously than the other. Counsel for both parties were zealous advocates that pushed, but did not go beyond, the envelope.

eSpeed argued that the Court should award it attorney's fees, pursuant to Fed. R. Civ. P. 37(e)(2), for proving that a particular use of a software package was commercial and not experimental, a fact that TT denied in a request for admission. The Court chose not to rule on TT's and eSpeed's respective procedural arguments regarding whether TT was required to admit the use was commercial. Instead, the Court denied attorney's fees because of the Court's earlier ruling that failure to disclose the commercial use in question to the Patent Office was not inequitable conduct because the use occurred before the critical date. And, as with eSpeed's decision to hold TT to its proofs, the Court would not punish TT for holding eSpeed to its proofs on inequitable conduct.

* Click here to read this opinion and click here to read much more about this case in the Blog’s archives.

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