Brandywine Communications Technologies, LLC v. AT&T Corp. et al

Filing 82

MDL ORDER DENYING TRANSFER (MDL No. 2462) (cpS, COURT STAFF) (Filed on 8/8/2013)

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 1 of 7

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC, PATENT LITIGATION

MDL No. 2462

ORDER DENYING TRANSFER

Before the Panel:* Pursuant to 28 U.S.C. § 1407, patentholder Brandywine Communications
Technologies, LLC (Brandywine) moves for centralization of this patent infringement litigation in the
Middle District of Florida. Brandywine alternatively supports centralization of this litigation in a
district in the central United States, such as the Northern District of Texas. This litigation currently
consists of thirty-four actions pending in twenty districts, as listed on Schedule A.1
Defendants in twenty-one of the actions responded to Brandywine’s motion.2 With the
exception of three defendants in actions pending in the District of Delaware, the responding
defendants uniformly oppose centralization. The three Delaware defendants do not oppose
centralization, but object to centralization in the Middle District of Florida. Although several
defendants, in their written submissions, alternatively proposed centralization in either the Eastern
District of Arkansas, the Northern District of Texas, or the District of Utah, counsel for defendants
stated during oral argument on this motion that all but one of the defendants now support, in the
alternative, centralization in the Northern District of California.3

*

Judge Marjorie O. Rendell took no part in the decision of this matter.

1

There were forty-one actions listed on Brandywine’s motion for centralization, but seven
actions pending in the Central District of California, the District of Colorado, the District of New
Hampshire, the Northern District of Oklahoma, and the District of Oregon were subsequently
dismissed voluntarily by Brandywine.
2

The responding defendants include: American Network Communications, Inc.; AT&T
Corp.; Cactus International, Inc.; Consolidated Communications Holdings Inc.; DBSolutions, Inc.;
DLS Computer Services, Inc.; Graydog Internet, Inc.; HickoryTech Corporation; IKANO
Communications; Impulse Advanced Communications LLC; Loretto Communication Services, Inc.;
MegaPath Inc.; NATCO Communications, Inc.; OM Networks; PEAK Internet, LLC; SBC Internet
Services, Inc.; Sonic.net Inc.; Stayton Cooperative Telephone Company; Texas Communications,
Inc.; TMN, Inc.; Union River Telephone Company; and Windstream Corporation.
3

Two defendants also argued in their papers that the Panel, if inclined towards centralization,
should defer its ruling for some period of time to allow for defendant-specific resolutions in the
(continued...)

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 2 of 7

-2These actions involve similar allegations of infringement of six patents that generally relate
to networking protocols, techniques, and systems for use in the provision of Internet connectivity via
digital subscriber line (DSL) technology.4 There is undoubtedly factual overlap among these actions.
However, in these particular circumstances, we see a number of reasons why centralization would
not serve the convenience of the parties and witnesses or further the just and efficient conduct of this
litigation.
In particular, the Panel is concerned that centralization of this litigation might hinder the
orderly and efficient resolution of these cases. It appears that, between December 2012 and March
2013, Brandywine filed approximately seventy patent infringement actions against regional and local
DSL providers containing largely verbatim language and claims. Of these seventy actions, more than
half already have been dismissed voluntarily by Brandywine as a result of early settlements. Indeed,
since this motion was filed on May 16, 2013, seven of the actions have been dismissed—two
following oral argument on the motion. It seems likely that many of the remaining actions will be
resolved in a similarly efficient fashion.5

3

(...continued)
transferor courts.
4

The six patents at issue are:

•

U.S. Patent No. 5,206,854, entitled “Detecting Loss of Echo Cancellation”;

•

U.S. Patent No. 5,251,328, entitled “Predistortion Technique for Communications
Systems”;

•

U.S. Patent No. 5,812,537, entitled “Echo Canceling Method and Apparatus for Data
Over Cellular”;

•

U.S. Patent No. 5,828,657, entitled “Half-Duplex Echo Canceler Training Using a
Pilot Signal”; and

•

U.S. Patent No. 6,970,501 and its continuation, U.S. Patent No. 7,894,472, entitled
“Method and Apparatus for Automatic Selection and Operation of a Subscriber Line
Spectrum Class Technology.”

5

Additionally, our review of the dockets for these actions reveals that defaults have been
entered or requested in six of the actions, defendants have failed to appear or have not been served
in several other actions, and several defendants have filed motions to dismiss or other dispositive
motions based upon various licenses that Brandywine allegedly issued for these six patents.

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 3 of 7

-3In short, these actions are being litigated in a manner that is likely to lead to their resolution,
whether through settlement or other means, within a relatively short period of time. Accordingly,
“the advantages centralization typically affords—i.e., reducing duplicative discovery and motion
practice, etc.—may not be relevant to most litigants” in these actions.6 In re ArrivalStar S.A. Fleet
Mgmt. Sys. Patent Litig., 802 F. Supp. 2d 1378, 1379 (J.P.M.L. 2011) (denying centralization
because, inter alia, there was a “trend of quick dismissals”). See also In re Genetic Techs. Ltd.
(‘179) Patent Litig., 883 F. Supp. 2d 1337, 1337-38 (J.P.M.L. 2012) (denying centralization because,
inter alia, the patent’s litigation history suggested that most actions did not require significant judicial
intervention).
Also, the procedural posture of these actions makes it less likely that they will benefit from
centralization. Two of the actions are quite advanced, with a claim construction order recently issued
in the first-filed action in the Middle District of Florida and briefing on claim construction concluded
in the action pending in the Northern District of California. Defendants vociferously argue that
Brandywine’s filing of its motion for centralization so soon after the issuance of the claim
construction order demonstrates that Brandywine’s purpose in seeking centralization is to“lock in”
a favorable claim construction ruling. “[T]he Panel’s primary purpose is not to divine the motives and
strategies of the various litigants . . . . Nevertheless, where a Section 1407 motion appears intended
to further the interests of particular counsel more than those of the statute, we would certainly find
less favor with it.” In re CVS Caremark Corp. Wage & Hour Emp’t Practices Litig., 684 F. Supp.
2d 1377, 1379 (J.P.M.L. 2010).
We need not delve deeply into Brandywine’s ulterior motives for seeking centralization
because the disparity of the procedural postures of these actions itself would complicate any
centralized proceeding. See, e.g., In re Droplets, Inc., Patent Litig., 908 F. Supp. 2d 1377, 1379
(J.P.M.L. 2012) (denying centralization, in part, based on the disparate procedural postures of the
actions). Centralizing the advanced actions would result in delays to the completion of discovery and
the anticipated trial dates in those actions. While there are circumstances where centralization of
advanced patent infringement actions with newer actions will result in significant efficiencies, see,
e.g., In re TR Labs Patent Litig., 896 F. Supp. 2d 1337, 1338 (J.P.M.L. 2012) (centralizing patent
infringement litigation where expert discovery remained uncompleted), they are not present in this
litigation. Centralization of these actions is unlikely to result in the just and efficient conduct of the
litigation as a whole—particularly where the newly-filed actions are already progressing towards early
resolution. See In re Louisiana-Pacific Corp. Trimboard Siding Mktg., Sales Practices & Prods.
Liab. Litig., 867 F. Supp. 2d 1346, 1346 (J.P.M.L. 2012) (“Where there is such a significant
6

Of course, it may turn out that some of these actions do not settle or otherwise resolve while
the actions are in their infancy. Indeed, two actions—albeit actions against national DSL providers
as opposed to regional providers—have reached an advanced procedural posture, with claim
construction either briefed or decided. Even if these surviving actions were to proceed to claim
construction, differences in the defendants’ DSL technology and the diversity of the defendants’
businesses might diminish some of the potential efficiencies that centralization provides. See
ArrivalStar, 802 F. Supp. 2d at 1379.

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-4procedural disparity among the subject actions, the Panel will take a close look at whether movants
have met their burden of demonstrating that centralization will still serve the purposes of Section
1407.”).
IT IS THEREFORE ORDERED that the motion, pursuant to 28 U.S.C. § 1407, for
centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

__________________________________________
John G. Heyburn II
Chairman
Kathryn H. Vratil
Charles R. Breyer
Sarah S. Vance

Paul J. Barbadoro
Lewis A. Kaplan

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 5 of 7

IN RE: BRANDYWINE COMMUNICATIONS
TECHNOLOGIES, LLC, PATENT LITIGATION

MDL No. 2462

SCHEDULE A
District of Arizona
Brandywine Communications Technologies, LLC v. Datum Communications
Incorporated, C.A. No. 2:13-00119
Brandywine Communications Technologies, LLC v. Internet Holdings LLC,
C.A. No. 2:13-00121
Brandywine Communications Technologies, LLC v. Dakota Communications LLC,
C.A. No. 4:13-00041
Western District of Arkansas
Brandywine Communications Technologies, LLC v. NATCO Communications, Inc.,
C.A. No. 3:13-03043
Brandywine Communications Technologies, LLC v. American Network
Communications, Inc., C.A. No. 4:13-04008
Central District of California
Brandywine Communications Technologies, LLC v. Sonic.net Inc., C.A. No. 2:12-11011
Brandywine Communications Technologies, LLC v. Impulse Advanced Communications
LLC, C.A. No. 2:12-11013
Brandywine Communications Technologies, LLC v. MM Internet Inc.,
C.A. No. 2:12-11015
Brandywine Communications Technologies, LLC v. Surfnet Communication Inc.,
C.A. No. 2:12-11017
Brandywine Communications Technologies, LLC v. LA Bridge Inc.,
C.A. No. 2:12-11030
Eastern District of California
Brandywine Communications Technologies, LLC v. OM Networks, C.A. No. 2:13-00508
Northern District of California
Brandywine Communications Technologies, LLC v. AT&T Corp., et al.,
C.A. No. 4:12-02494

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 6 of 7

-A2District of Delaware
Brandywine Communications Technologies, LLC v. InReach Internet, Inc.,
C.A. No. 1:12-01765
Brandywine Communications Technologies, LLC v. MegaPath Inc., C.A. No. 1:12-01767
Brandywine Communications Technologies, LLC v. Windstream Corporation,
C.A. No. 1:12-01769
Brandywine Communications Technologies, LLC v. Consolidated Communications
Holdings Inc., C.A. No. 1:12-01784
Middle District of Florida
Brandywine Communications Technologies, LLC v. Centurylink, Inc., et al.,
C.A. No. 6:12-00286
District of Idaho
Brandywine Communications Technologies, LLC v. OrbitCom, Inc.,
C.A. No. 1:12-00643
Brandywine Communications Technologies, LLC v. Cactus International, Inc.,
C.A. No. 3:12-00641
Northern District of Illinois
Brandywine Communications Technologies, LLC v. DLS Computer Services, Inc.,
C.A. No. 1:12-10317
District of Maine
Brandywine Communications Technologies, LLC v. Union River Telephone Company,
C.A. No. 1:12-00403
Brandywine Communications Technologies, LLC v. Coastal Telco Services, Inc.,
C.A. No. 2:12-00401
District of Massachusetts
Brandywine Communications Technologies, LLC v. Galaxy Internet Services, Inc.,
C.A. No. 1:13-10068
District of Minnesota
Brandywine Communications Technologies, LLC v. HickoryTech Corporation,
C.A. No. 0:12-03187

Case MDL No. 2462 Document 110 Filed 08/08/13 Page 7 of 7

-A3Southern District of Ohio
Brandywine Communications Technologies, LLC v. DBSolutions, Inc.,
C.A. No. 2:13-00278
District of Oregon
Brandywine Communications Technologies, LLC v. Graydog Internet, Inc.,
C.A. No. 3:12-02332
Brandywine Communications Technologies, LLC v. PEAK Internet, LLC,
C.A. No. 6:12-02335
Brandywine Communications Technologies, LLC v. Stayton Cooperative Telephone
Company, C.A. No. 6:12-02336
Middle District of Tennessee
Brandywine Communications Technologies, LLC v. Loretto Communication Services,
Inc., C.A. No. 1:13-00004
Eastern District of Texas
Brandywine Communications Technologies, LLC v. TMN, Inc., C.A. No. 6:12-01006
Brandywine Communications Technologies, LLC v. Texas Communications, Inc.,
C.A. No. 6:12-01008
Southern District of Texas
Brandywine Communications Technologies, LLC v. Colorado Valley Communications,
Inc., C.A. No. 4:13-00772
District of Utah
Brandywine Communications Technologies, LLC v. Ikano Communications, Inc.,
C.A. No. 2:12-01214
Eastern District of Wisconsin
Brandywine Communications Technologies, LLC v. Trinet-E Telecommunications Inc.,
C.A. No. 1:12-01314