Trading Techs. Int’l., Inc. v. eSpeed, Inc., No 04 C 5312, Slip Op. (N.D. Ill. Aug. 20, 2007) (Moran, Sen. J.).*
Judge Moran granted in part plaintiff Trading Technologies’ (“TT”) motion to bifurcate inequitable conduct from the rest of the trial – in another opinion issued on the same day, the Court denied defendant eSpeed’s motion to bifurcate willfulness and damages from the liability phase of the trial. The Court noted that bifurcation is the exception not the rule, but that Fed. R. Civ. P. 42(b) allows the Court to bifurcate trials for convenience, to avoid prejudice or when bifurcation benefits expediency and economy. The Court also explained that bifurcating inequitable conduct does not violate the Seventh Amendment, citing Gardco Mfg., Inc. v. Herst Lighting Co., 820 F.2d 1209 (Fed. Cir. 1987).
TT sought an inequitable conduct bench trial after the conclusion of the jury trial. eSpeed asked the Court to try inequitable conduct before the jury and have the jury issue an advisory verdict pursuant to Fed. R. Civ. P. 39(c). The Court observed that there was substantial case law supporting both TT’s and eSpeed’s positions, showing the discretion the Court has on the issue. But the Court followed the reasoning of Judge Norgle in THK Am., Inc. v. NSK, Ltd., 1996 WL 33398071 (N.D. Ill. 1996). Judge Norgle bifurcated inequitable conduct, but heard the evidence of inequitable conduct each day after the jury was dismissed as the inequitable conduct evidence came up. The Court reasoned that this form of bifurcation prevented the jury from hearing potentially prejudicial evidence, while allowing witnesses not to have to return for additional days of testimony.
Trial is set to start in this case the week of September 10. Between now and then expect to see several more opinions in this case and its related cases. Additionally, I have some other obligations that week, but am planning to blog some of the trial. Stay tuned.