Trading Techs. Int’l, Inc. v. eSpeed, Inc., No. 04 C 5312 (N.D. Ill. Jun. 13, 2008).
The Court held that its May 22 permanent injunction against defendant eSpeed (click here for the Blog’s post on the injunction) was a final judgment, which allowed for appeal to the Federal Circuit. Anyone reading the Blog’s recent posts regarding the Court’s permanent injunction against eSpeed, and eSpeed’s appeal of the injunction as well as plaintiff Trading Technologies’ ("TT") cross-appeal, might have assumed that the Court had entered a final judgment. eSpeed apparently did because it filed an appeal of the permanent injunction to the Federal Circuit (click here for the Blog’s post on the issues on appeal). TT filed its broader appeal shortly thereafter (which eSpeed objected to as untimely because the Court had not entered a final judgment on anything beyond the permanent injunction), but disagreed that the Court had entered a final judgment on any issue. TT, therefore, also filed an emergency motion requesting that the Court vacate its permanent injunction, rule on the parties’ cross-motions for attorney’s fees (the Court now has ruled on those motions, click here for the Blog’s post about that decision) and then reenter the permanent injunction along with final judgment.*
This may seem like irrelevant procedural posturing, but TT explains the appellate rules implications in its emergency motion:
The rules state that the first-filed notice of appeal is the appellant, but when both parties file an appeal on the same day, the plaintiff is deemed the appellant. F.R.A.P. 28.1. Where there is a cross-appeal, the appellant has the advantage of having higher word limits in its briefs and also files the first brief focused solely on the issues it seeks to appeal. The general rule is that a plaintiff, like TT here, has the right to be an appellant if it wants to appeal an issue.
The Court did not directly rule on TT’s motion, but effectively decided it by entering this Minute Order stating that its May 22 permanent injunction was a final judgment effective May 22. The Clerk, who subsequently entered final judgment on all issues effective May 22, and the parties — eSpeed filed a notice of appeal of all issues rather than its initial appeal of just the injunction — treated the final judgment as relating to all matters before the Court, which makes both parties’ appeals timely. According to TT’s above analysis, because TT filed its appeal after but on the same day as eSpeed, TT will be appellant and eSpeed will be the cross-appellant.
For those concerned that the Blog might be silent about this case for months, have no fear. The related cases continue and I will continue blogging about both the related cases and the appeal.