[00:00:29] Speaker 03:
Next case is Buckhorn, Corporated versus Orbis Corporation, 2014-17-11.

[00:00:40] Speaker 03:
We'll hear from Ms.

[00:00:41] Speaker 03:
Woods when she's ready.

[00:00:56] Speaker 01:
May it please the court.

[00:00:58] Speaker 01:
We're here today on a single issue, and that is whether Buckhorn may properly be held jointly and severally liable as a matter of law for a fee award made to Orbitz after remand by this court to the district court in the Northern District of Ohio, expressly instructing that court to determine the amount of a fee award

[00:01:25] Speaker 01:
based upon the fee-shifting language in the ROPAC-CITEC agreement, to which Buckhorn was never a party, received no benefit under.

[00:01:34] Speaker 05:
And he is a party.

[00:01:37] Speaker 05:
I'm a little confused, because I don't read the district court as having awarded fees under the ROPAC-CITEC agreement.

[00:01:45] Speaker 05:
I read the district court as having awarded fees under the PLA agreement.

[00:01:52] Speaker 01:
I'm sorry.

[00:01:53] Speaker 01:
Didn't I hear the last part of your question?

[00:01:55] Speaker 05:
read the district court is not awarding fees under the RX agreement.

[00:02:00] Speaker 05:
The district court said specifically it wasn't doing that, but rather under the PLA agreement.

[00:02:06] Speaker 01:
You're absolutely correct, Your Honor.

[00:02:08] Speaker 01:
And that is the error of law that the district court made.

[00:02:12] Speaker 01:
Because this court demanded it determine fees on the basis of a specific agreement.

[00:02:16] Speaker 01:
Instead, the district court wandered over into new territory on a completely independent and separate agreement.

[00:02:24] Speaker 01:
among separate parties that cannot be construed together with the ROPAC agreement.

[00:02:29] Speaker 01:
And it awarded fees on the basis of that separate patent license agreement, which the court acknowledged was not before it, had never been adjudicated, and was between separate parties.

[00:02:41] Speaker 02:
Of which Buckhorn is a party.

[00:02:43] Speaker 01:
Buckhorn's predecessor, parent company, Myers, is a party to that patent license agreement.

[00:02:49] Speaker 01:
You're correct, Your Honor.

[00:02:50] Speaker 05:
But Orvis is not.

[00:02:51] Speaker 01:
Sorry?

[00:02:52] Speaker 05:
But Orvis is not.

[00:02:54] Speaker 01:
Orvis is not.

[00:02:55] Speaker 01:
And that is the crux of this dispute.

[00:02:58] Speaker 01:
You have one agreement between Scholar and Orvis, or their predecessors, and you have a totally separate agreement between Scholar and Buckhorn.

[00:03:10] Speaker 01:
Those agreements were made 14 years apart in different states, among different parties, for different purposes,

[00:03:18] Speaker 01:
applying different laws with different venue clauses or forum selection clauses.

[00:03:24] Speaker 01:
Each of those agreements is an independent agreement.

[00:03:28] Speaker 01:
Each is fully integrated and contains explicit language to that effect.

[00:03:33] Speaker 01:
Those agreements do not intend to benefit third parties.

[00:03:38] Speaker 01:
And you cannot draft a fee-shifting provision in one agreement, the ROPAC agreement, and

[00:03:46] Speaker 01:
transported by some lead boat.

[00:03:48] Speaker 05:
That's not what happened.

[00:03:50] Speaker 01:
Well, Your Honor, I think that's exactly what happened.

[00:03:52] Speaker 05:
No, it's not what happened.

[00:03:53] Speaker 05:
What the district court did was impose liability under the PLA agreement.

[00:03:58] Speaker 01:
Yes, and the district court did that, acknowledging that that court had never had that agreement in front of it, that that agreement specifically says that it covers indemnification between Scholar and Buckhorn.

[00:04:15] Speaker 01:
Indemnification is different than fee-shifting.

[00:04:19] Speaker 01:
And you cannot simply say that solar is liable to orbits under the ROPAC agreement, and Boxhorn might be accountable to solar.

[00:04:31] Speaker 05:
Why aren't you talking about the ROPAC agreement?

[00:04:33] Speaker 05:
It has nothing to do with it.

[00:04:34] Speaker 01:
All right, but I'm talking about the CLA, Your Honor.

[00:04:37] Speaker 05:
The district court didn't rely on the ROPAC agreement.

[00:04:40] Speaker 05:
Let's put that aside.

[00:04:41] Speaker 05:
The reveries concede.

[00:04:45] Speaker 05:
that the fees were not awarded under the ROPEC agreement.

[00:04:48] Speaker 05:
The question is whether they could be awarded under the PLA agreement.

[00:04:51] Speaker 01:
But fees cannot be directly awarded to ORBIS under the PLA agreement.

[00:04:57] Speaker 01:
ORBIS is not a party to that agreement.

[00:04:59] Speaker 01:
That agreement says that you'll have no third party beneficiaries.

[00:05:03] Speaker 01:
And there's absolutely no basis that you can make a direct fee award under the PLA from Buckhorn to ORBIS.

[00:05:12] Speaker 01:
Now there is a question out there which will be adjudicated in the New York court as required under the PLA that says we will determine whether Buckhorn has an indemnification obligation to Shuler.

[00:05:27] Speaker 01:
Indemnification is completely different from fee shifting.

[00:05:31] Speaker 01:
Indemnification means you've already paid the debt and now you're seeking someone else to reimburse you for that.

[00:05:38] Speaker 01:
Shuler hasn't paid and has not paid the fee award to Orbis.

[00:05:42] Speaker 01:
There was a small garnishment, but other than that, they've not paid it.

[00:05:47] Speaker 01:
And whether Buckhorn will be accountable under that indemnification language to Scholler is a question yet to be determined in a New York court under New York law.

[00:05:58] Speaker 01:
The district court in Ohio could not just leapfrog from that indemnification language and say, for a matter of expedience, we're going to hold Buckhorn directly accountable to Orbit.

[00:06:12] Speaker 01:
That is the error of law in this case.

[00:06:16] Speaker 01:
And that particular approach runs roughshod over basic principles of contract law.

[00:06:24] Speaker 01:
It ignores the concept of mutual consent.

[00:06:27] Speaker 01:
It also puts us on a very slippery slope with the American rule of law regarding fee shifting, which has to be a matter of specific contractual provision.

[00:06:39] Speaker 01:
There's no fee shifting language in the patent license agreement.

[00:06:44] Speaker 01:
And you now are grafting one obligation from one set of parties into a different set of parties in a different contractual basis of case.

[00:06:56] Speaker 02:
The basic argument, I take it, is that even though Buckhorn can be tracked all the way back to Zytek by the series of

[00:07:08] Speaker 02:
assignments and agreements, and Orbus can be tracked back to the original Zytec-ROPAC agreement.

[00:07:23] Speaker 02:
Your argument is the Zytec-ROPAC would not have allowed the suit that made Orbus liable

[00:07:34] Speaker 02:
or Buckhorn rather liable for the fees.

[00:07:40] Speaker 02:
That suit could not have been undertaken under the Zytek throwback arrangement?

[00:07:46] Speaker 02:
And your argument seems to be the only way you can get that suit is through the PLA agreement?

[00:07:53] Speaker 01:
Well, it's not the law for this issue, it's the actual payment of fees.

[00:08:00] Speaker 01:
What we're contending is that there are two independent contracts among different sets of parties.

[00:08:06] Speaker 01:
And you can impose an obligation to pay fees on Scholar to Orvis under the Roe-Pack Agreement.

[00:08:15] Speaker 01:
There's no dispute about that.

[00:08:17] Speaker 01:
That's what the district court really should have done.

[00:08:20] Speaker 01:
And there's some language to indicate that's what it was trying to do.

[00:08:24] Speaker 01:
But then when it was faced with Buckhorn, it said, well, it's not a party.

[00:08:29] Speaker 01:
So we can't impose fees under the Royal Packet Agreement.

[00:08:32] Speaker 01:
There's absolutely no legal basis to do that.

[00:08:35] Speaker 01:
So let me try to find a different way.

[00:08:37] Speaker 01:
So it looked at the PLA and said, aha, Buckhorn is supposed to indemnify Scholar for its litigation.

[00:08:47] Speaker 01:
And that's all well and good, but that's a two-step process.

[00:08:50] Speaker 01:
You can't leap directly to say,

[00:08:53] Speaker 01:
that Buckhorn has to pay Scholar.

[00:08:58] Speaker 03:
Buckhorn is a subsidiary of Myers who was a party to the Scholar agreement.

[00:09:04] Speaker 02:
Right.

[00:09:05] Speaker 02:
Holds a license from Scholar.

[00:09:08] Speaker 02:
Right?

[00:09:10] Speaker 01:
Scholar license.

[00:09:10] Speaker 02:
The patent license agreement.

[00:09:13] Speaker 02:
Scholar license to 592 patents and Myers and Myers and Buckhorn are the same thing.

[00:09:19] Speaker 02:
Right.

[00:09:19] Speaker 01:
That's correct, Your Honor.

[00:09:20] Speaker 03:
And Myers agreed to pay

[00:09:23] Speaker 03:
shows expenses.

[00:09:25] Speaker 01:
Other than indemnification clause.

[00:09:27] Speaker 01:
Indemnification clause means you have to pay it upfront first, and then you seek reimbursement.

[00:09:33] Speaker 03:
That's your argument, that indemnification is different from fee shifting.

[00:09:37] Speaker 05:
Correct.

[00:09:38] Speaker 05:
Well, your point is that Orbis isn't a party to the PLA agreement and can't recover from anybody under the PLA agreement.

[00:09:46] Speaker 01:
That is absolutely correct, Your Honor.

[00:09:47] Speaker 01:
That's the second aspect of our argument.

[00:09:52] Speaker 01:
I see my time is up.

[00:09:53] Speaker 03:
Well, it's not up, but you wanted to reserve six minutes, and we'll save it for you for rebuttal.

[00:09:58] Speaker 01:
Yes.

[00:09:59] Speaker 03:
Thank you.

[00:10:00] Speaker 03:
Mrs. Devono?

[00:10:07] Speaker 04:
Good morning, Your Honors.

[00:10:08] Speaker 04:
May it please the Court?

[00:10:10] Speaker 05:
So how is it that Corvus, that's not a party to the PLA agreement, can recover under the PLA agreement?

[00:10:16] Speaker 04:
Yes, Your Honor, for several reasons.

[00:10:19] Speaker 04:
First of all, this appeal by Bakhorin is a rather brazen

[00:10:23] Speaker 04:
and related attempt to escape accountability for its own conduct in this case.

[00:10:31] Speaker 05:
You're not answering my question.

[00:10:33] Speaker 05:
Could you answer my question?

[00:10:35] Speaker 04:
Yes, sir.

[00:10:35] Speaker 05:
I did the answer.

[00:10:38] Speaker 04:
The answer to that is revealed in the district court's very thorough opinions.

[00:10:45] Speaker 04:
And there's two opinions that the district district

[00:10:48] Speaker 05:
How can it recover under an agreement to which it's not a party?

[00:10:51] Speaker 04:
The district court never explained that.

[00:10:54] Speaker 04:
This is not a contract question, Your Honor.

[00:10:57] Speaker 04:
This is a question of whether the district court in its discretion, and it is vested in the sound discretion of the district court, whether the district court can make a judgment

[00:11:08] Speaker 04:
jointly and separately liable against co-parties in a litigation.

[00:11:13] Speaker 05:
It specifically declined to award fees under section 285, right?

[00:11:19] Speaker 04:
That's correct.

[00:11:20] Speaker 05:
Okay, so where does its authority to award fees come from if it rejected 285 and it didn't rely, in your view, under the PLA agreement?

[00:11:31] Speaker 04:
It relied in

[00:11:35] Speaker 04:
for two reasons in its opinion that made it very clear.

[00:11:38] Speaker 04:
One, the district court relied upon the PLA agreement.

[00:11:43] Speaker 04:
And the district court, contrary to counsel's statement that the... Well, my question was, how can it rely on the PLA agreement when Orbis is not positive?

[00:11:51] Speaker 04:
Your Honor, I would ask that you let me finish my answer.

[00:11:55] Speaker 04:
I'll let you finish your answer if you respond to my question.

[00:11:59] Speaker 04:
I am responding to your question, Your Honor.

[00:12:01] Speaker 04:
Buckhorn expressly relied

[00:12:04] Speaker 04:
on the PLA agreement to establish its standing to bring this suit in concert with Scholar.

[00:12:13] Speaker 04:
The fact is the PLA was in front of the district court at the commencement of the litigation.

[00:12:20] Speaker 04:
The litigation was started by Buckhorn alone.

[00:12:23] Speaker 04:
The motion to dismiss was filed because Buckhorn did not have standing to bring the suit without Scholar the owner.

[00:12:29] Speaker 04:
Buckhorn filed an affirmative motion in the district court saying it wanted the district court to order Scholar to become a party as a plaintiff, relying expressly upon the PLA.

[00:12:44] Speaker 04:
It quoted extensively from the PLA to the district court at the beginning of the litigation.

[00:12:50] Speaker 05:
How does that not purpose the right to recover under an agreement to which it's not a party?

[00:12:55] Speaker 04:
Your honor, the agreement says that it shall pay.

[00:13:00] Speaker 04:
It's not an indemnification provision.

[00:13:02] Speaker 04:
It says it shall pay the court.

[00:13:05] Speaker 02:
Which agreement are you talking about?

[00:13:06] Speaker 04:
The PLA agreement.

[00:13:08] Speaker 02:
But that goes back to the judge's question.

[00:13:10] Speaker 02:
Orbis isn't in the PLA agreement.

[00:13:13] Speaker 04:
And Buckhorn acted in concert with Scholder as a co-plaintiff.

[00:13:19] Speaker 04:
The basis for joint and several liability is not just solely contractual.

[00:13:24] Speaker 04:
The court looks at the conduct of the parties in a litigation.

[00:13:30] Speaker 04:
As this court has reviewed in several cases, in looking at the issue of joint and several liabilities, you look at the conduct of the parties, their relative importance in the case.

[00:13:42] Speaker 02:
Are you arguing that Scholar could have sued Orbis?

[00:13:47] Speaker 02:
And if Scholar sued Orbis, Scholar would clearly have been entitled to

[00:13:54] Speaker 02:
or not entitled, but clearly would have been liable.

[00:13:59] Speaker 04:
Oh, certainly, your honor.

[00:14:01] Speaker 02:
And in fact, this court... And your argument is that Buckhorn is standing in Scholar's shoes.

[00:14:05] Speaker 04:
In fact, they expressly told the district court that in their briefs, they expressly said, Buckhorn stands in the shoes of Scholar.

[00:14:14] Speaker 04:
And that's cited in our brief.

[00:14:16] Speaker 05:
Not for purposes of fees, they didn't cite that.

[00:14:18] Speaker 04:
They said for all purposes, Your Honor.

[00:14:20] Speaker 05:
For all purposes?

[00:14:21] Speaker 05:
Where does it say that?

[00:14:22] Speaker 04:
It did not limit, their statement did not limit that to qualify it.

[00:14:27] Speaker 05:
Where do they say they stood in their shoes for all purposes?

[00:14:28] Speaker 04:
Your Honor, it's in our brief and I don't have it in front of me right now, but it's in our brief and we cited it.

[00:14:35] Speaker 05:
Are you supposed to come to our argument with understanding your own brief?

[00:14:38] Speaker 04:
Yep.

[00:14:39] Speaker 04:
I understand, Your Honor, and I'll get you that cite in a second.

[00:14:43] Speaker 04:
And in this court's prior opinion, which is very significant, never challenged by Buckhorn, this court found that the fee-shifting provision was broad and reciprocal and applied to both appellees, both Buckhorn and Scholl.

[00:15:04] Speaker 04:
And in JA 227, this court says that the fee provision is reciprocal and appellees

[00:15:12] Speaker 04:
would have been able to collect fees and costs if they were the prevailing parties.

[00:15:16] Speaker 05:
So what we have here is... Yes, but on page 224, our opinion also said that SAS was the only premium with obligations under the fee provision, right?

[00:15:29] Speaker 04:
As a matter of contract, when you look at only the four corners of that agreement, not when you look at the conduct undertaken by the respective plaintiffs in this case and the fact that

[00:15:41] Speaker 04:
that Buckhorn, as recognized by the district court, Buckhorn was the lead plaintiff.

[00:15:46] Speaker 04:
Buckhorn was responsible for the case.

[00:15:48] Speaker 04:
Buckhorn was in charge of the case.

[00:15:50] Speaker 04:
Buckhorn was the only party that collected damages in the case.

[00:15:54] Speaker 04:
And under that conduct, the district court very properly exercised its discretion and determined that

[00:16:04] Speaker 04:
that the fee award and the judgment should be joint and several as to both buckhorn and shoulder.

[00:16:12] Speaker 03:
How does this case relate to the New York action?

[00:16:15] Speaker 03:
Your honor, thank you.

[00:16:16] Speaker 03:
Which is going to interpret the PLA agreement.

[00:16:19] Speaker 03:
Which was the basis of the trial court's decision here.

[00:16:23] Speaker 04:
Yes, and thank you very much for that question.

[00:16:25] Speaker 04:
The trial court again answered that question very explicitly in its opinion

[00:16:33] Speaker 04:
And it is at docket 313, which is at JA-42 and JA-43.

[00:16:46] Speaker 04:
And the court expressly notes, I'm sorry, Your Honor, it's in the original.

[00:16:52] Speaker 03:
I think you're talking about A-32, referring to

[00:17:01] Speaker 04:
I'm actually talking about docket 291.

[00:17:08] Speaker 04:
I apologize.

[00:17:09] Speaker 04:
It's at JA 260 and JA 261 in which the district court in those two pages specifically addressed that very issue and said that the determination between Buckhorn and Schuler

[00:17:25] Speaker 04:
how they fight among themselves as the groups ultimately going to be responsible for sharing in the obligation.

[00:17:32] Speaker 04:
That's going to be decided by the New York court because Buckhorn has filed a case alleging that Scholar breached that contract, thereby Buckhorn being able to collect damages against Scholar, i.e.

[00:17:45] Speaker 04:
the damages, it asserts, is the fees that it says in the New York case, it's jointly and separately liable to pay the ordinance in this case.

[00:17:53] Speaker 02:
Why doesn't the indemnity provision satisfy your needs rather than this?

[00:17:59] Speaker 04:
Well, because, Your Honor, I have a collection problem against Scholar.

[00:18:02] Speaker 04:
Scholar is a foreign company.

[00:18:04] Speaker 04:
They've already taken all their money out of their accounts as to the party that's in this action.

[00:18:10] Speaker 04:
They have no liquid assets in the United States.

[00:18:12] Speaker 04:
And in fact, they rent a building in the US, but they don't own it.

[00:18:17] Speaker 04:
So I have

[00:18:18] Speaker 04:
no way of collecting the judgment against Shulman.

[00:18:21] Speaker 04:
And Buckhorn knows that.

[00:18:22] Speaker 04:
Buckhorn here not only has the assets, Myers has backed them up, and they've posted a $3 million bond to cover this appeal.

[00:18:30] Speaker 04:
So the question here is, should the plaintiff, who is the judgment creditor, be penalized because Buckhorn is trying to run from its obligation that the district court properly noted this was Buckhorn's case all along?

[00:18:47] Speaker 04:
They were the lead plaintiff.

[00:18:49] Speaker 04:
All of the fees that were incurred in this case were incurred by Buckhorn.

[00:18:54] Speaker 05:
If SAS recovers against Buckhorn in the New York courts, gets a judgment, why can't you attach that judgment?

[00:19:02] Speaker 04:
SAS is not suing Buckhorn in the New York court.

[00:19:04] Speaker 04:
Who's the litigation in New York?

[00:19:06] Speaker 04:
Buckhorn has sued SAS, alleging that there was a breach of a contract between Buckhorn and SAS.

[00:19:14] Speaker 04:
And there's no counterclaim?

[00:19:15] Speaker 04:
No counterclaim has been filed, Your Honor.

[00:19:18] Speaker 04:
And so the question is, can the district court in its discretion exercise its discretion and impose joint federal liability in favor of a judgment creditor?

[00:19:29] Speaker 04:
And the answer is yes.

[00:19:30] Speaker 04:
If this court reviews it for an abusive discretion standard, there has been no showing by Buckhorn that there's been an error of law applied by the district court.

[00:19:41] Speaker 05:
We have no authority for the notion.

[00:19:43] Speaker 05:
that someone who's not a party to a peace-shifting agreement can recover under that agreement.

[00:19:47] Speaker 04:
You have no case.

[00:19:48] Speaker 05:
Your Honor, the district court did not limit its decision to that holding as it did upon... What case supports the idea that a party, someone who is not a party to a peace-shifting agreement can recover under the peace-shifting agreement?

[00:20:00] Speaker 04:
Your Honor, the issue here is the joint... You're not answering my question.

[00:20:04] Speaker 05:
What case... You don't.

[00:20:06] Speaker 05:
What case says that a party who is not a party to a peace-shifting agreement can recover under the agreement?

[00:20:13] Speaker 04:
Your Honor, under the agreement, no.

[00:20:16] Speaker 04:
And the district court properly said, I am not awarding fees under that contract.

[00:20:22] Speaker 04:
The issue argued by Buckhorn is the wrong issue.

[00:20:26] Speaker 04:
The issue here is not whether there's a fee-shipping provision in a contract.

[00:20:31] Speaker 04:
The issue here is whether the district court can impose joint civil liability for a judgment.

[00:20:39] Speaker 04:
And I would also point out, Your Honor,

[00:20:41] Speaker 04:
that if you examine the provisions of the PLA, the provisions at issue, which are at JA93, allocation of expenses, this provision is basically talks about cost.

[00:21:04] Speaker 04:
Who shall be responsible for cost in any litigation?

[00:21:10] Speaker 04:
It defines costs, like some federal statutes, to include attorneys fees.

[00:21:17] Speaker 04:
So therefore, one way of looking at this, although the district court didn't address it in particular, is this is a question of cost being imposed and the law being how does costs get allocated and what's the rule when a district court is imposing costs on co-plaintiffs or co-defenders?

[00:21:38] Speaker 04:
And under the Sixth Circuit, and as recognized by this court in the Ortho case, that the district court has discretion to either allocate costs or the default rule, barring some kind of particular conduct, is to make costs jointly and severally liable against the co-parties, which is what the district court did here when it examined the fact that Buckhorn was the party that

[00:22:08] Speaker 04:
controlled this litigation, instigated it, and was the one who was solely in charge of the case, and caused the attorney's fees to be incurred, and was the only one that could incur damages.

[00:22:23] Speaker 04:
And as this court held in the prior appeal, had Butthorn won, they would have had the right to speak attorney's fees against Orbis.

[00:22:35] Speaker 04:
That's what this court held.

[00:22:37] Speaker 04:
It is the law of this case.

[00:22:39] Speaker 04:
And Buckhorn never, never has challenged that provision.

[00:22:45] Speaker 04:
I would like to address one thing of a procedural nature, which is another significant thing on this issue.

[00:22:52] Speaker 04:
Buckhorn never appealed the court's initial order, which is docket 291, in the notice of appeal.

[00:23:00] Speaker 04:
The notice of appeal only referenced

[00:23:04] Speaker 04:
the two orders determining the amount of the fees and the order of the judge denying reconsideration.

[00:23:12] Speaker 04:
Now, this court, with all due respect under those circumstances, has only limited jurisdiction to review either the amount of the fees or whether the court's denial of reconsideration was an abuse of discretion because Buckford never appealed from Docket 291

[00:23:33] Speaker 04:
which was the order in which the court imposed joint several liability initially.

[00:23:39] Speaker 04:
Now, Buckborne abandoned the orders on the amount of fees because there's no argument in this appeal anymore in this case as to any challenge to the amount of reasonable fees awarded by the court.

[00:23:52] Speaker 04:
So the only issue in front of this court, with all due respect is, was the district court's

[00:24:00] Speaker 04:
denial of reconsideration, and abuse of discretion.

[00:24:04] Speaker 04:
Now, the standard for that in the Sixth Circuit is, did the district court, in denying reconsideration, was there a change in the law?

[00:24:13] Speaker 04:
Was there new evidence?

[00:24:15] Speaker 04:
Was there a manifest injustice?

[00:24:18] Speaker 04:
None of that has been shown to this court.

[00:24:21] Speaker 04:
Therefore, I respectfully submit that this court's jurisdiction is limited

[00:24:27] Speaker 04:
to reviewing the motion and the denial of reconsideration.

[00:24:32] Speaker 04:
And therefore, because of that, there's no basis to overturn the district court.

[00:24:38] Speaker 04:
Thank you very much.

[00:24:40] Speaker 03:
Thank you.

[00:24:40] Speaker 03:
Mr. Bonhomme, Ms.

[00:24:41] Speaker 03:
Woods has some more bubble time.

[00:24:54] Speaker 01:
Thank you.

[00:24:55] Speaker 01:
Let me make it perfectly clear.

[00:24:56] Speaker 01:
Buckhorn is not trying to escape its liability.

[00:25:00] Speaker 01:
In fact, it initiated the case in New York to bring this issue to a head and resolve the indemnification issues with Scholar and Buckhorn.

[00:25:10] Speaker 01:
Buckhorn did start that case.

[00:25:14] Speaker 01:
There's no counterclaim in that case yet because the time for filing such a response of pleading has not yet arisen in that case.

[00:25:21] Speaker 01:
So whether there will be a counterclaim

[00:25:23] Speaker 01:
by Scholar is yet to be seen.

[00:25:26] Speaker 01:
But let me turn now to this issue of whether or not Buckhorn stands in the shoes of Scholar.

[00:25:33] Speaker 01:
Yes, Buckhorn did rely on the patent license agreement for its standing to initiate this infringement case under its assignment of that patent.

[00:25:43] Speaker 01:
That was perfectly proper.

[00:25:45] Speaker 01:
It does not mean that Buckhorn stands in the shoes of Scholar

[00:25:51] Speaker 01:
with respect to a separate agreement, the ROPAC agreement, which is what they're trying to impose here.

[00:25:57] Speaker 01:
Nor does it mean that ORBIS stands in shoulder shoes under the patent license agreement.

[00:26:05] Speaker 01:
You simply cannot graph these two agreements together in the manner that the district court did.

[00:26:12] Speaker 01:
Let's also consider this particular mandate of this court was to determine the amount of fees under the ROPAC agreement.

[00:26:20] Speaker 01:
This court's mandate of remand said nothing about finding a new basis under the patent license agreement or exporting the indemnification provisions in that separate agreement into the fee issue, which had never been raised.

[00:26:38] Speaker 01:
Every time that Orbitz raised its claim for fees, six times it briefed this issue.

[00:26:45] Speaker 01:
every single time, it said Scholar was liable to it under the ROPAC size agreement.

[00:26:51] Speaker 01:
It said also on several occasions that Buckhorn may have to indemnify Scholar for these fees.

[00:27:00] Speaker 01:
But that's an issue to be decided between Buckhorn and Scholar in New York, not by the Ohio District Court.

[00:27:08] Speaker 01:
And if we look specifically at the orders of the Ohio District Court, the two fee orders

[00:27:13] Speaker 01:
which are found at Joint Appendix 37 and Joint Appendix 15, the first and second scene orders.

[00:27:20] Speaker 01:
On both orders, the district court references that Orbis is seeking fees under the ROPAC agreement.

[00:27:29] Speaker 01:
Then it goes off on this tangent under the patent license agreement when it actually explains what it did when Buckhorn asked us to clarify how there could be joint and separate liability

[00:27:41] Speaker 01:
under the Rope Hatch-I-Tac agreement.

[00:27:44] Speaker 02:
Ms.

[00:27:44] Speaker 02:
Wood, I'm a little puzzled.

[00:27:48] Speaker 02:
Your request for clarification was hardly a request for clarification because if you go back to the motion that you all made in 2013 to get dismissed from, Nikki Buckhorn wanted to be dismissed,

[00:28:04] Speaker 02:
The trial court said, despite Buckhorn's argument that it has no obligation for attorney's fees, the unambiguous language of the PLA, pursuant to which Scholar agreed to become a nominal plaintiff in this proceeding, requires Buckhorn to pay any fees that may ultimately be awarded to Orbis.

[00:28:24] Speaker 02:
And then the court actually goes on to the next page and says,

[00:28:30] Speaker 02:
Shoulder lacks any reasonable ability to respond to the Orbit's fee request as an effective outside fiddle litigation.

[00:28:37] Speaker 02:
Accordingly, the court finds that Buckhorn's dismissal and absolution from any responsibility for its litigation of this matter is not just.

[00:28:45] Speaker 02:
Now, you knew that back in 2013.

[00:28:49] Speaker 01:
We absolutely did, Your Honor.

[00:28:51] Speaker 01:
And I have a couple of things I'd like to say in response to that.

[00:28:53] Speaker 01:
First of all, the ruling on that Rule 21 motion

[00:28:59] Speaker 01:
It had to do with joiner.

[00:29:01] Speaker 01:
It did not establish joint and several liabilities.

[00:29:03] Speaker 05:
It's not an appealable order.

[00:29:05] Speaker 01:
I know.

[00:29:05] Speaker 01:
We didn't appeal it, Your Honor.

[00:29:07] Speaker 01:
We didn't appeal it.

[00:29:09] Speaker 01:
We can appeal it.

[00:29:10] Speaker 05:
But the point is that order... You couldn't appeal until the fees were imposed on you.

[00:29:15] Speaker 05:
You appealed when the fees were imposed on you.

[00:29:16] Speaker 01:
That's exactly what we did, Your Honor.

[00:29:18] Speaker 01:
There wasn't even a fee motion pending at the time of this order.

[00:29:22] Speaker 01:
That fee motion was filed several months later.

[00:29:25] Speaker 01:
And the court goes on to say that it declined

[00:29:30] Speaker 01:
to decide this issue between Shiller and Buckhorn, because it says, and I quote, on JA 261, therefore this court declines to make a declaratory decision or grant Shiller's request, because this is a matter to be resolved between Buckhorn and Shiller in a New York court under New York law.

[00:29:52] Speaker 01:
And that is exactly why we did not raise that issue in our appeal, because it's irrelevant.

[00:30:00] Speaker 01:
And the bottom line here is that there is no contractual basis for fee shifting imposing this liability directly on Buckhorn here.

[00:30:14] Speaker 01:
Whether we'll have liability to identify Scholar is for another court another day.

[00:30:21] Speaker 01:
And that case is being litigated.

[00:30:24] Speaker 01:
But it is wrong to remake contract law, to run roughshod over principles of mutuality, to get on the slippery slope of changing the American rule for attorney's fees, and to do all this because Orbis has an election problem or because the district court thought it was more expedient.

[00:30:44] Speaker 01:
For this reason, the decision should be reversed.

[00:30:47] Speaker 01:
Thank you.

[00:30:47] Speaker 03:
Thank you, Ms.

[00:30:48] Speaker 03:
Woods.

[00:30:49] Speaker 03:
We will take the case under the advisement.

[00:30:53] Speaker 04:
Thank you very much.

[00:30:54] Speaker 04:
May I provide the site to the court that Judge Dyke asked about?

[00:30:57] Speaker 03:
I guess you can provide the site, yes.

[00:30:59] Speaker 03:
I'm sorry?

[00:30:59] Speaker 04:
Yes, you may provide the site with no argument.

[00:31:02] Speaker 04:
No, no, no, no.

[00:31:03] Speaker 03:
Just a number.

[00:31:04] Speaker 04:
It's on page 27 of the Red Bleed that the record just got its number, 15-1, at taste test.

[00:31:11] Speaker 03:
Thank you very much.

[00:31:18] Speaker 04:
The accountable court is adjourned until tomorrow morning at 10 o'clock a.m.