Midtronics, Inc., et al v. Aurora Performance Products LLC

Filing 251

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 11/4/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MIDTRONICS, INC., et al.,
Plaintiffs,
v.
AURORA PERFORMANCE PRODUCTS LLC,
etc., et al.,
Defendants.

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No.

06 C 3917

MEMORANDUM ORDER
This Court has received the litigants’ competing submissions
as to the form of the Recall Notice (“Notice”) that it has
ordered, the transmittal of which has been hung up by the
parties’ inability to reach full accord on the content of the
Notice.

At this point only two items separate the parties’

counsel, and this memorandum order addresses them.
First, defendants (referred to here simply as “Argus,” just
as the parties have done) wish to disclaim any obligation to
return the infringing products to customers in the event of
Argus’ future financial inability to pay.

Counsel for

Midtronics, Inc. (“Midtronics”) have persuasively argued against
that, and this Court agrees.

No such language should be included

in the Notice.
Midtronics also objects to inclusion of the language “the
serial number of the product must be readable in its original
form (i.e. unaltered).”

Argus responds that the identical

language had been included by Midtronics itself in the proposal

it had sent to Argus on October 31.

But this Court’s role is to

settle on the most appropriate content for the Notice, not
necessarily either side’s proposed version.
In that respect this Court shares the view advanced by
Midtronics’ counsel that any Notice provision that could deter as
nearly complete a recall of infringing products should be
disfavored.

And as for the inclusion of a product’s serial

number, which Argus’ counsel characterizes as a “reasonable antifraud tracking proposal,” that position tends to ignore the
obvious truism that the Notice will be directed to Argus
customers--a fact that minimizes the stated concern that a
returned unit may not be “an authentic Argus product.”

Hence

this Court determines that the clause requiring readability of
the serial number in its original form should also be excluded
from the Notice.
No further delays in transmittal of the Notice are called
for.

Argus is ordered to send out the Notice forms forthwith.

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Milton I. Shadur
Senior United States District Judge
Date:

November 4, 2011

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