Stephen S. Wu-- SL: Legal Writer,, (408) 573-5737, 50 W. San Fernando St., Ste. 750, San Jose, CA 95113

Parties Moving Closer Together in Minsky Case

On September 29, 2008, counsel for Linden Research and other defendants sent a letter to Albany federal court Judge Lawrence E. Kahn announcing an “agreement in principle” with Richard Minsky regarding part of the case Mr. Minsky brought against Linden Research: whether or not the Court should issue a preliminary injunction. A preliminary injunction preserves the situation the parties face while a case is pending, but is not a final resolution of the case. Therefore, this “agreement in principle” does not portend an imminent settlement of the entire case, although it is a sign of open communications among the parties that may lead to an eventual settlement. The defendants apparently are agreeable to converting the existing temporary restraining order into a preliminary injunction, thereby avoiding what appeared to be an expensive showdown on the motion for preliminary injunction with Mr. Minsky.
The letter also reported that the idea for converting the temporary restraining order (TRO) to a preliminary injunction came from the defendants. This is another sign that the parties are moving closer together. Defense counsel Andrew Rose told the judge that Mr. Minsky agreed to converting the TRO to a preliminary injunction. Mr. Rose’s letter also said that the parties would provide a stipulation to the Court for an order formalizing the conversion of the TRO to a preliminary injunction.

Finally, the letter requests additional time to serve discovery requests in anticipation of a preliminary injunction hearing. If the parties agree to a conversion of the TRO to a preliminary injunction, it may be unnecessary to have expedited discovery of the kind that appears in the Court’s earlier scheduling order, and the parties may be able to return to a normal timetable for discovery. The stipulated preliminary injunction may address returning to normal discovery. In the meantime, before the stipulation is final, the parties did not want the judge to think they were ignoring the Court’s order to serve discovery.

These developments may be a sign that the defendants would like to minimize the expense and disruption of the federal case. At the same time, they can continue fighting out the real merits of the trademark issue in the trademark cancellation proceeding pending before the Trademark Trial and Appeal Board. To the extent the defendants were agreeable to extending the TRO for the entire time the federal case is pending, they apparently do not believe that the TRO is excessively burdensome to their business. Moreover, they may have felt some pressure from the judge to enter into an agreement with Mr. Minsky to implement some takedown procedures with him and hold the status quo while the parties hash out the merits.