Norwegians in American Courts: Strangers in a Strange Land Paul B. Klaas Partner-in-charge (International) Dorsey & Whitney LLP Minneapolis/London

2 Norwegians in American Courts [Nordmenn i de amerikanske domstolene]

4 UNITED STATES JUDICIAL SYSTEM FEDERAL COURTS STATE COURTS Minneapolis New York Hennepin County District Court Hennepin County District Court Supreme Courts Supreme Courts District Courts District Courts Courts of Appeals Courts of Appeals Minnesota Court of Appeals Minnesota Court of Appeals Minnesota Supreme Court Minnesota Supreme Court Appellate Divisions Appellate Divisions Court of Appeals Court of Appeals Magistrate Judges District Judges Attorney General Attorney General PTO ? ? ? ? U.S. Senate U.S. House of Representatives United States Supreme Court United States Supreme Court Executive Branch (President) Executive Branch (President) Legislative Branch SEC

5 PREPARATIONLITIGATION  Prior Art Search?  Experts?  Infringement / Validity Analysis?  Defensive Legal Opinion?  Design Around? forum battle? Appeal [ $, Injunction] Y v. X (Declaratory Judgment) Y v. X (Declaratory Judgment) Trial Verdict And Judgment Verdict And Judgment Answer (denials) or Motions to Dismiss Answer (denials) or Motions to Dismiss SETTLEMENT ? Expert Discovery Expert Discovery Fact Discovery Fact Discovery Markman Hearing Markman Hearing Summary Judgment Summary Judgment "Initial Disclosures" "Initial Disclosures" Preliminary Injunction Preliminary Injunction X v. Y (Infringement) X v. Y (Infringement) UNITED STATES PATENT LITIGATION

6 American Astonishments Notice pleading Class actions Discovery “Aggressive” lawyers Mercenary expert witnesses Contingent fees + rare or no fee-shifting Jury trials

7 Notice Pleading Fed. R. Civ. P. 8(a): A pleading that states a claim for relief must contain…a short and plain statement of the claim…and a demand for the relief sought.

8

9 Class Actions Fed. R. Civ. P. 23 An individual suing as representative of all others similarly situated, unless the others “opt out”

10 NUMEROSITY

11 COMMONALITY

12 TYPICALITY

13 FED. R. CIV. P. 23(B)(3) Notice and Opportunity to Opt Out Common Questions Predominate Superiority Manageability

14 Discovery Oral depositions Written depositions Written interrogatories Requests for production of documents Physical and mental examinations Requests for admission Subpoenas

15

16

17

18

19

20 Rock, Paper, Scissors [Stein, Papir, Saks] Rock [Stein] Paper [Papir] Scissors [Saks] ======

21 Rock, Paper, Scissors [Stein, Papir, Saks] BREAKS SURROUNDS CUTS

22 Depositions

23 Aggressive Lawyers

24 Aggressive lawyers

25

26 Mercenary expert witnesses

27 Fees Contingent fees Almost no fee-shifting (“Loser pays” only by statute or contract)

28 Jury trials Criminal prosecutions Civil actions seeking money damages

29