Frank H. Easterbrook
How Judge Easterbrook decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
Economic reasoning made doctrinal: he tests an antitrust theory against how markets and incentives actually work, and rejects characterizing a forgone gain (opportunity cost) as the equivalent of an out-of-pocket 'reverse payment.' Valid patents -- even 'weak' ones, and even 132 of them -- lawfully exclude competition.
“But what's wrong with having lots of patents? If AbbVie made 132 inventions, why can't it hold 132 patents? ... Weak patents are valid; to say they are weak is to say that their scope is limited, not that they are illegitimate.”
Concrete-injury rigor at summary judgment: a bare statutory violation is not standing, and a plaintiff who is asked to produce evidence of a real loss and declines cannot proceed. 'Put up or shut up' time.
“Summary judgment is the 'put up or shut up' time in litigation. ... Interruption of self-employment could cause a loss, but whether it did cause a loss must be established by evidence. Plaintiffs, who declined an opportunity to produce such evidence, cannot carry on with this litigation.”
Procedural preferences
Tight textual/structural statutory reading: what Congress omitted from a list must be respected, and what it included must be honored -- the structure of the statute, not a free-floating purpose, governs.
“We held in Wilcher, and stress again today, that the omissions from the list in section 3583(c) must be respected -- and the inclusions also must be honored.”
He reads jurisdiction-stripping provisions for what they say and will not let the APA or a re-labeling of the claim ('delay is not a decision') reopen a door Congress closed. 'No review means no review.'
“Section 1182(a)(9)(B)(v) does just that, so by its own terms the APA drops out. No review means no review; the statute does not need to list all of the many potential legal theories that are not reviewable.”
Cautions
Substance over form on the entitlements actually fixed by a judgment: a later constitutional/statutory cap that merely trims a number already present in the original judgment does not reset rights (here, the postjudgment-interest start date). Distinguish a true recalculation-by-different-method.
“Equity looks beyond these words of description to see what was in fact ordered to be done. ... This court has never suggested that application of a common law, statutory, or constitutional limit, while leaving in place a sum that was present in the original judgment, defers the start date for postjudgment interest.”
An antitrust plaintiff who is a stranger to patent litigation cannot adjudicate 'by proxy' what should have been fought out in those patent cases; complaints about successful petitioning run into Noerr-Pennington, and only issued patents (not the act of applying) impose costs on rivals.
“a separate antitrust suit by strangers to the patent litigation does not justify an effort to adjudicate by proxy what might have happened in the patent litigation, but didn't. ... Patent applications, successful or not, do not impose costs on rivals; only issued patents do so.”
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“Both the U.S. settlement and the E.U. settlement are traditional resolutions of patent litigation. AbbVie did not pay the would-be entrants on either continent. Neither individually nor collectively do these settlements state a claim under section 1 of the Sherman Act. ... AFFIRMED”
“The Moores call this a legal error, but it was a finding of fact under the approach used to differentiate fact from law in U.S. Bank, N.A. v. Village at Lakeridge, LLC ... As a factual finding, it is reviewed for clear error, and we do not see any error at all, let alone a clear one. ... AFFIRMED”
“Summary judgment is the 'put up or shut up' time in litigation. ... Interruption of self-employment could cause a loss, but whether it did cause a loss must be established by evidence. Plaintiffs, who declined an opportunity to produce such evidence, cannot carry on with this litigation. ... AFFIRMED”
“The district court's decision is reversed, and the case is remanded with instructions to award postjudgment interest on the $140 million punitive award starting October 3, 2017.”
“Section 1182(a)(9)(B)(v) does just that, so by its own terms the APA drops out. No review means no review; the statute does not need to list all of the many potential legal theories that are not reviewable. ... AFFIRMED”
“We held in Wilcher, and stress again today, that the omissions from the list in section 3583(c) must be respected -- and the inclusions also must be honored. ... AFFIRMED”