Federal Circuit Rejects More Mandamus Petitions Seeking to Sidestep Delaware Court’s Standing Orders

The U.S. Court of Appeals for the Federal Circuit (CAFC) on Wednesday issued two orders denying mandamus relief for petitioners seeking to end the U.S. District Court for the District of Delaware’s “judicial inquisition” concerning disclosure of their owners and third-party litigation funders.

Chief Judge Colm Connolly’s standing orders on initial disclosures in patent litigation cases have been the subject of much controversy and are presently being appealed at the CAFC in a separate case. They require up front disclosures from companies in patent cases assigned to Connolly of 1) “the name of every owner, member, and partner of the party, proceeding up the chain of ownership until the name of every individual and corporation with a direct or indirect interest in the party has been identified”; and 2) the identity of any third-party litigation funders.

In yesterday’s orders, the CAFC denied two petitions for writ of mandamus; one filed by Waverly Licensing, LLC and one by Creekview IP, LLC. The same panel of Federal Circuit judges, Bryson, Dyk and Prost, said that a challenge of the standing orders, which both petitioners argued overstep the court’s authority, would be premature because neither party has yet “been found to violate those orders, and [they] will have alternative adequate means to raise such challenges if, and when, such violations are found to occur.”

The orders both cited to In re Nimitz, explaining that the two petitions at issue are, like Nimitz, premature. Both petitioners argued that they have “an indisputable right to terminate the district court’s inquiry” because both cases had been dismissed under Federal Rule of Civil Procedure 41(a), following joint stipulations to dismiss. However, the petitioners each filed motions to stay the litigation pending disposition of the Nimitz case, which also challenged the district court’s standing orders and was denied on December 8, 2022. Since the district court has taken no action since then, the CAFC said the court has not yet addressed the arguments by both petitioners regarding the joint stipulated dismissals and their effect on the disclosure inquiries/ compliance with the standing orders.

Both orders also ended with a note that the district court may still be within its rights to conduct the inquiries despite the dismissals:

“Notably, there is no absolute prohibition on a district court’s addressing collateral issues following a dismissal. Rather, “[i]t is well established that a federal court may consider collateral issues after an action is no longer pending,” Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990); see also Fed. R. Civ. P. 83(b); Chambers v. NASCO, Inc., 501 U.S. 32 (1991) (a district court has authority to regulate practice before it).”

Thus, both petitions for mandamus relief were ultimately denied.