Black & Decker Inc. v. Robert Bosch Tool Corp., No. 04 C 7955, 2006 WL 3883937 (N.D. Ill. Dec. 27, 2006) (St. Eve, J.).
Judge St. Eve denied defendant’s emergency motion to prohibit plaintiff from sending Rule 65(d) notice letters regarding the Court’s permanent injunction to defendant’s customers (more on this case and the injunction in the Blog’s archives). But before analyzing defendant’s emergency motion, the Court first addressed defendant’s prior motion to clarify the injunction which the Court previously denied. In the motion to clarify, defendant stated that it had sold approximately 150,000 infringing radios to various resellers prior to being enjoined. Defendant argued that those resellers should be free to sell their supplies of infringing radios. The Court denied the motion because it was first raised in a sur-reply brief regarding plaintiff’s motion for a permanent injunction without presentation of any detailed facts, legal argument or supporting case law.
Even in its motion to clarify, defendant “failed to adequately develop [its] argument with specific facts and relevant case law.” The Court warned that counsel served as both client advocates and officers of the Court. As the latter, the Court stated that:
[I]t is incumbent on trial counsel to assist the court and to fully and fairly represent the legal issues in the case within the applicable statutory and common law framework relevant to the factual dispute before the court for resolution.
Accordingly, [defendant’s] counsel-as officers of the court and advocates for their client-had the responsibility to raise the issue of the 145,377 [radios] in a cogent manner at the first possible opportunity and not in its motion to clarify or in a sure-reply. The Court cannot anticipate every relevant argument counsel should make on behalf of its clients nor is it the Court’s role to do so.
(citations omitted). Having addressed defendant’s prior motion to clarify, the Court acknowledged that its permanent injunction did not enjoin third parties, such as defendant’s customers, but noted that a Rule 65(d) notice letter regarding the enjoined conduct was the required first step before plaintiff could bring contempt proceedings against defendant’s customers for aiding and abetting any violation of the injunction by defendant. The Court also quoted the text of the notice letter and held that, while it could have used more precise language in parts, it did not direct the recipient to stop sales or state that the recipient was enjoined by the Court’s injunction. Additionally, any lack of precision in the letter’s wording was fixed by the inclusion of the permanent injunction itself.