In my last unreasonably long post, I discussed the case of Weyerhaeuser Co. v. Lambert, as Litigation Claims Representative for Paragon Trade Brands, Inc., Civil Action No. 1:05-CV-1144-JEC (N.D. Ga. September 26, 2007). Not wanting to add to the length, I am posting the lawyers’ comments in a separate post. (and the Fulton County Daily Report) posted an article entitled Judge Reverses $457 Million Ruling Against Forestry Giant.  The article includes some interesting comments –

On Monday, John A. Lee, an attorney with Andrews Kurth in Houston who represents Paragon’s court-appointed litigation claims representative, said, "Of course, we’re going to appeal. We respect Judge Carnes. But, frankly, Judge Murphy spent a heck of a lot of time on this issue and wrote a very thorough order, which, of course, we agree with."

Lee’s co-counsel, Charles E. Campbell, a partner with McKenna Long & Aldridge, noted that in a conference prior to releasing her order, Carnes had volunteered that her ruling would have little impact on the ultimate outcome of the case, which is destined for the 11th U.S. Circuit Court of Appeals.

Carnes asked the parties whether they could settle the case, Lee recalled. If not, the judge suggested, "Why don’t you go straight to the 11th Circuit because that’s where you are going anyway. Nothing I say makes a difference," the Texas attorney recounted.

Paragon lawyer Campbell acknowledged, "There is no doubt Paragon assumed the patent liabilities. We never contended otherwise." But, he added, "Notwithstanding that [Weyerhaeuser warrants], the assets were adequate to conduct the business. … Do you read those warranties out of the contract and give them no meaning, which is what the district court did? … If you interpret those warranties the way the district court did, they don’t mean anything. … Why have them in the contract at all?"

The question, as the District Court found, however, was how could the contracts be read to render meaningless Paragon’s express assumption of the infringement liability?  Is it their position that Paragon expressly assumed the clearly disclosed liability, but only if it turned out to not really be a liability?   

Lee claimed that Weyerhaeuser’s argument that Paragon was attempting to turn the case into securities fraud litigation was "one of [Weyerhaeuser’s] little red herrings on appeal. I’m sure the 11th Circuit will see through that smokescreen."

Lee also suggested that appeal tactics by Weyerhaeuser attorneys were "extremely demeaning" toward the bankruptcy judge. "They were extremely disrespectful to Judge Murphy who had worked years on this case," he said. "Judge Murphy tried a contract case. She was very careful about it." But Weyerhaeuser attorneys, he said, appear to have convinced Carnes "that Judge Murphy made these bad mistakes. When the 11th Circuit looks over this ruling very carefully … I’m sure they will determine who got it right."

I have not yet reviewed the pleadings, but the opinions of the two respected Judges reflect a difference of opinion on the legal and factual issues.   The District Court Opinion of Judge Carnes does not reference any "tactics," demeaning or otherwise.