[00:00:30] Speaker 02:
The next case is number 19-1098, Serta-Simmings-Bedding, LLC versus Casper-Sleep, Inc.

[00:00:42] Speaker 02:
Mr. Schoenhart.

[00:01:01] Speaker 03:
This appeal is perplexing, as it strikes me that it should be rather straightforward.

[00:01:13] Speaker 03:
Here, Sir De Simmons asks this court to vacate the judgment of the district court below.

[00:01:18] Speaker 03:
и вернуть решение диститута, что он не смог уничтожить контроль с сеттельментом партии, вывесить директор's вход в суд, который в то же время был вывесен для недостатка или противоречия, и вернуть решение с сеттельментом партии.

[00:01:37] Speaker 03:
Everything that we are asking boils down to one very simple fact, which I believe to be undisputed, that on June 18, 2018, the parties entered into a binding settlement agreement that resolved all issues in the underlying case.

[00:01:52] Speaker 03:
At that moment, there was no longer case of controversy.

[00:01:58] Speaker 00:
Well, when was the court notified of this agreement?

[00:02:04] Speaker 00:
And how was the court notified?

[00:02:06] Speaker 03:
I appreciate your honor's question and as to the first portion, the court was notified on the very same day that the settlement agreement was executed, that being June 18, 2018.

[00:02:19] Speaker 03:
The court was notified by the filing of a joint paper that was a notice of settlement agreement and a request to stay the case.

[00:02:29] Speaker 03:
The request to stay, of course, is not uncommon in the post-Coconan world, in which the Supreme Court had explained that district courts did not have power to enforce settlement agreements after dismissal was entered.

[00:02:42] Speaker 03:
And as a result, it became quite common for parties to ask to delay entry of pending payment of a settlement payment, so that if there were concerns over that payment, there was no need to file a later separate action.

[00:02:54] Speaker 03:
The district court would retain jurisdiction over it.

[00:02:56] Speaker 00:
What did the district court say in its judgment two days later with regard to the settlement?

[00:03:03] Speaker 03:
The district court said nothing specifically with regard to the settlement and its judgment two days later.

[00:03:10] Speaker 03:
In the judgment that issued on June 20, the district court dismissed as moot or denied as moot the party's request for a stay.

[00:03:20] Speaker 03:
The court did not in any way expressly reference the fact that the parties had entered into a settlement agreement or had so notified the court.

[00:03:28] Speaker 03:
Instead, the court went ahead and entered summary judgment of non-infringement.

[00:03:32] Speaker 00:
Is there any reason to think that the district court was not aware of the settlement?

[00:03:39] Speaker 03:
I believe that the district court was perhaps not aware of the terms of the settlement.

[00:03:42] Speaker 03:
Those had not at that point been provided to the court, but there is no reason to believe the court was unaware that a settlement agreement had been entered.

[00:03:49] Speaker 03:
And in fact, in the court's subsequent order denying the motion to enforce, the court acknowledged that the parties had filed a notice of settlement agreement, but that the court was unaware of its terms at that time.

[00:04:02] Speaker 03:
No matter what the court was aware, once Article 3 standing is removed, any court action thereafter is in fact void, regardless whether the court had notice of the settlement.

[00:04:15] Speaker 03:
That does not mean that in some way the court should be reprimanded for having entered an order not fully appreciating the party settlement.

[00:04:22] Speaker 03:
Rather, the simple course is to vacate the court's judgment or at the district court level for the district court to alter, amend or remove its judgment as having been void when issued.

[00:04:36] Speaker 01:
This is not Casper argues that the agreement wasn't executed because payment had not yet been made.

[00:04:47] Speaker 01:
Is that correct?

[00:04:48] Speaker 01:
That's the argument.

[00:04:49] Speaker 01:
And what is your response to that?

[00:04:51] Speaker 03:
That is correct, that is in fact their argument.

[00:04:54] Speaker 03:
I don't think it's an argument with merit, and in fact unremanned, we intend to seek attorney's fees for what we view to be frivolous behaviour.

[00:05:02] Speaker 03:
Here we have a scenario, and I don't use the word frivolous lately, this case concerns me.

[00:05:08] Speaker 03:
We have a scenario where we have an undisputedly fully executed settlement agreement.

[00:05:13] Speaker 03:
The majority of the primary cases that we cite to here are cases in which parties have reached settlement terms or exchanged draft settlement agreements.

[00:05:23] Speaker 03:
This case is actually rather unique in that we in fact had a fully executed settlement agreement that on its face

[00:05:30] Speaker 03:
was effective as of the time when it was finally signed.

[00:05:35] Speaker 03:
For instance, I refer Your Honors to Section 1.1 of the Settlement Agreement.

[00:05:40] Speaker 03:
This is in the appendix at 1867.

[00:05:43] Speaker 03:
That identifies the effective date as the last date of execution.

[00:05:47] Speaker 03:
I also note that the term provision, section 5.1, this is in the appendix of 1869, states that the agreement is effective when fully executed and will continue until the expiration of the underlying patents.

[00:06:01] Speaker 01:
And the signature dates on the contract are June 18th.

[00:06:04] Speaker 03:
да, beiden Parteien, am Jun 18, an derzeit, die Zeitung, die Zeitung, die Zeitung, die Zeitung, die Zeitung, die Zeitung

[00:06:31] Speaker 01:
and bound by the settlement agreement, and I'm going to go ahead and issue my summary judgment determination.

[00:06:37] Speaker 01:
Don't get me wrong.

[00:06:39] Speaker 01:
I understand your argument to be that the settlement agreement was already formed and that the performance limitation was just something that had to be, it was like an obligation to the contract, not something that prevented it from being executed.

[00:06:58] Speaker 01:
But with respect to your comment about attorney fees,

[00:07:01] Speaker 01:
I just wonder, arguing that it's frivolous when the district court has an order specifically saying, I'm going to enter summary judgment in a settlement agreement that wasn't executed.

[00:07:12] Speaker 01:
How can an appellee or a party not rely on that?

[00:07:16] Speaker 03:
The district court did not at the time it entered its order say that this agreement was not fully executed.

[00:07:21] Speaker 03:
At the time it entered its summary judgment order, the district court did no more than deny as moot what was on the docket as a motion to stay.

[00:07:31] Speaker 03:
It was titled a motion, a notice of settlement agreement and motion to stay.

[00:07:35] Speaker 03:
I think you created a red herring by talking about attorney's fees.

[00:07:51] Speaker 02:
I don't think you want to talk about attorney's fees here.

[00:07:56] Speaker 00:
I'm happy, Your Honor, not to discuss it any further.

[00:08:05] Speaker 00:
Let's discuss, though, the background to that.

[00:08:08] Speaker 00:
Casper complains at length about the litigating behavior of Serta in this case, and if their description is correct, and I don't know whether it is or not, it sounds like the district court might have been pretty ticked off.

[00:08:26] Speaker 00:
that service behavior, which might account for the, if you will, summary judgment.

[00:08:35] Speaker 00:
Do you have any comment about that?

[00:08:37] Speaker 03:
I don't think I can fairly comment on the demeanor of the district court at the time, but I do believe it's fair to say that the district court in fact entered a order of summary judgment of non-infringement, but as a matter of law,

[00:08:51] Speaker 03:
That order was void at the time it was entered in view of a settlement agreement.

[00:08:56] Speaker 03:
Had Casper in fact believed as strongly in its positions, then as it does now, Casper likely would not have entered into such a settlement.

[00:09:04] Speaker 03:
In fact, the reason courts recognize and respect settlements to the extent they do is that settlements themselves recognize the uncertainties of litigation and litigants' interests in avoiding the uncertainties of those litigations to resolve their disputes.

[00:09:18] Speaker 03:
It may be notable that the actual payment term is not a large, significant sum, at least in the world of corporations.

[00:09:29] Speaker 03:
That of course is not the most significant term in the settlement agreement as the product had not been on the market for an extended period of time and had not shown significant profit from which any damage would be derived.

[00:09:40] Speaker 03:
The significant term of the settlement was in fact the cease and desist term whereby Casper agreed to redesign its product and in fact that was the second time Casper had attempted a redesign.

[00:09:51] Speaker 03:
The first redesign was unsatisfactory.

[00:09:53] Speaker 03:
Casper redesigned its product for yet a second time to avoid the patents that are at issue.

[00:10:00] Speaker 03:
Accordingly, there was specific and significant value to be derived from this settlement by the parties in that it eliminated any further uncertainty of litigation on an ongoing basis.

[00:10:12] Speaker 03:
The parties recognized that uncertainty within the recitals of the settlement agreement in the appendix 1867, where the parties, using somewhat standard language, expressed their desire to settle all claims and to avoid uncertainty.

[00:10:25] Speaker 00:
I take it that your lengthy answer, in effect, says you don't have any

[00:10:30] Speaker 00:
and quarrel with their description of the behavior of service attorneys during the course of the litigation.

[00:10:39] Speaker 03:
Well, I certainly do, Your Honor, and I apologize if I misunderstood your question.

[00:10:43] Speaker 03:
I understood you to be referring to the district court's view of it.

[00:10:48] Speaker 00:
In my view, our behavior... We can only hypothesize about the district court's view, so you're correct not to deal with that.

[00:10:56] Speaker 00:
But their description of the litigating

[00:10:59] Speaker 00:
Do you disagree with their description?

[00:11:05] Speaker 03:
I do, Your Honor, and this is of course the subject of their cross-appeal, and we have addressed this in our response to cross-appeal at some length, referring point-to-point to the issues they raise.

[00:11:17] Speaker 03:
The primary issue they seem to raise is frankly one of claim construction, that to Casper from day one, they took a different view of the claims than did Cerda Simmons.

[00:11:28] Speaker 03:
As a result, in their view, no request for preliminary injunction ever should have been sought.

[00:11:33] Speaker 03:
Of course, when a new product hits the market and has just been released, that is when a request for preliminary injunction is in fact the most appropriate time to make a request.

[00:11:47] Speaker 03:
But thereafter, the parties engaged in a rather heated litigation largely focused on claim construction.

[00:11:55] Speaker 03:
The district court initially entered a claim construction that would have tilted in favor of Casper.

[00:12:00] Speaker 03:
And Cerda-Simmons, as was appropriate, requested reconsideration of that claim construction.

[00:12:06] Speaker 03:
The district court then, in fact, did reconsider its claim construction order, entered a claim construction that highly favoured Cerda-Simmons.

[00:12:14] Speaker 03:
And on the plain language of the district court's claim construction, there could be no dispute that the claim was infringed.

[00:12:21] Speaker 03:
Ultimately, then at the time of summary judgment, the district court did not further expressly modify its claim construction, but now the district court seemed to have implicitly backed off of its claim construction in view of what it identified as a prosecution history disclaimer.

[00:12:39] Speaker 03:
What that course of dealings suggests is in fact a highly contested litigation largely focused on an issue of claim construction that was itself hotly contested and that at different stages, the district court tipped in one party's favor or the other as it was swayed from side to side.

[00:12:58] Speaker 03:
You're into your rebuttal time.

[00:13:01] Speaker 03:
You want to save it?

[00:13:04] Speaker 02:
I do, Your Honor.

[00:13:04] Speaker ?:
Thank you.

[00:13:04] Speaker ?:
Mr. Miller.

[00:13:15] Speaker 04:
Good morning and may it please the court, Kate Dominguez for Casper.

[00:13:20] Speaker 02:
What's supposed to happen here, under your view, if CERTA goes to state court, state court determines that the agreement is enforceable and rejects any theories that you have as to it's not being enforceable.

[00:13:40] Speaker 02:
And then we have this district court judgment which says there's no infringement

[00:13:46] Speaker 04:
كيف يجب أن يتفاوضون تلك اثنين القرارات؟ اثنين قرارات مباشرة، وطبعا نظرنا بأن هذا سيكون غير صحيح ولكن اثنين قرارات مباشرة لم تجد مزيد من مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجموعة تسلسل مجمو

[00:14:16] Speaker 04:
Your Honor, the District Court had... No, no, what's the answer to that?

[00:14:19] Speaker 04:
Those can coexist.

[00:14:21] Speaker 04:
The reason is that the District Court, on June 20th, when it entered its summary judgment, had jurisdiction over the case.

[00:14:30] Speaker 04:
The case was not moved.

[00:14:32] Speaker 02:
So it had, and by the way, Council first heard of just... If the agreement was enforceable then, would they be able to come in and move to vacate the District Court judgment under Rule 60?

[00:14:44] Speaker 04:
They would not, and let me explain why.

[00:14:46] Speaker 04:
So Council for CERTA stood up here and actually conceded that the case was not moved.

[00:14:51] Speaker 04:
He stood up here and told this panel that if there's no Article 3 jurisdiction, the court doesn't have power to act.

[00:14:59] Speaker 04:
At the same time, he told the panel that the court did have power to act in this case, power to grant substantive relief to CERTA to enforce the agreement.

[00:15:11] Speaker 02:
I don't see the inconsistency there.

[00:15:12] Speaker 02:
но почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему, почему,

[00:15:41] Speaker 02:
similar situations, which suggest that a binding settlement agreement does move the case.

[00:15:48] Speaker 04:
So you're right, Your Honor, the Seventh Circuit doesn't bind this court, but the Constitution does.

[00:15:53] Speaker 04:
The Constitution doesn't say anything about settlements.

[00:15:55] Speaker 02:
The Constitution... Why would it say something about settlements?

[00:15:58] Speaker 02:
There's all sorts of things it doesn't say something about.

[00:16:00] Speaker 04:
Exactly.

[00:16:01] Speaker 04:
Article 3 speaks to cases or controversies.

[00:16:03] Speaker 04:
So the key issue has to be, was there a live case or controversy on June 20th?

[00:16:09] Speaker 04:
If a settlement agreement does not resolve

[00:16:12] Speaker 04:
The controversy between the parties on the day that it's signed.

[00:16:17] Speaker 01:
It doesn't move the case and you're relying on seventh circuit law for that position.

[00:16:20] Speaker 04:
We say to seven circuit cases for that.

[00:16:23] Speaker 01:
That's not even the regional circuit that's applicable here right if we were to look to regional circuit law wouldn't be the seventh circuit.

[00:16:30] Speaker 04:
The second circuit laws perfectly consistent with that in fact.

[00:16:33] Speaker 04:
In the Second Circuit there's case law holding that a tentative settlement does not... What makes this tentative?

[00:16:42] Speaker 04:
The same case holds that in that case two parties had signed an exchange dismissals but simply not submitted them to the court yet and the Second Circuit held that the

[00:16:54] Speaker 00:
case was not moved because those had not been submitted to the court had not been submitted to the court are you saying this settlement had not been submitted to the court before the summary judgment was issued that's right your honor so per the party's agreement

[00:17:12] Speaker 04:
Parties bargained to keep the case alive.

[00:17:15] Speaker 04:
In fact, CERTA tells us in its brief at page 12.

[00:17:20] Speaker 00:
I don't know, but the court was advised about the settlement, right?

[00:17:22] Speaker 00:
Don't tell us what's in the settlement.

[00:17:24] Speaker 00:
Tell us, my question is, are you saying that the court was not notified of a settlement fact?

[00:17:35] Speaker 04:
The court was notified that there was an agreement that intended to resolve the issues in controversy, not that it did.

[00:17:42] Speaker 04:
And notably, the parties did not file a Rule 41 dismissal.

[00:17:47] Speaker 04:
A Rule 41 dismissal would have- Where do we find what the court was told?

[00:17:52] Speaker 04:
If you turn to the notice- It's at page 1839.

[00:17:57] Speaker 04:
Yes, 1839.

[00:17:58] Speaker 04:
So the language I was referring to, and let me know if your honor needs a minute to get to that page.

[00:18:05] Speaker 04:
The language I was referring to states that the parties have entered into a settlement agreement, the terms of which are intended to resolve the matters in controversy in the instant litigation.

[00:18:17] Speaker 00:
Accordingly... What's ambiguous about that?

[00:18:22] Speaker 04:
I actually think it's unambiguous.

[00:18:23] Speaker 04:
It tells the court not that there is a resolved case.

[00:18:27] Speaker 00:
Wait a minute.

[00:18:28] Speaker 00:
Read it again, please.

[00:18:28] Speaker 00:
Maybe I misunderstood it.

[00:18:30] Speaker 04:
The parties have entered into a settlement agreement.

[00:18:33] Speaker 00:
Stop right there.

[00:18:34] Speaker 00:
The parties have entered into a settlement agreement.

[00:18:39] Speaker 00:
Positive.

[00:18:39] Speaker 00:
Okay, then the next sentence?

[00:18:40] Speaker 04:
The terms of which are intended to resolve the matters in controversy.

[00:18:45] Speaker 00:
Why isn't that an accurate description of what the settlement agreement was intended to do?

[00:18:50] Speaker 04:
It is accurate, Your Honor, and if you look at the terms of the agreement, it says, on its face, that at the time the parties submit this motion to stay, it will be pending final settlement.

[00:19:00] Speaker 04:
It says that verbatim in the agreement.

[00:19:03] Speaker 04:
The agreement, by its terms, contemplated that it would not be final, the settlement would not be final on the day that the parties submitted the motion to stay.

[00:19:13] Speaker 00:
And Sirda actually explains... Tell me again, where did the agreement say that?

[00:19:18] Speaker 04:
Sure.

[00:19:18] Speaker 04:
So if you turn to the settlement agreement, and if you turn specifically to Appendix 1868, and you look to Section 2.2, it says, immediately upon full execution of this settlement agreement, the parties will cause their respective council to file a joint motion to stay the litigation pending final settlement.

[00:19:42] Speaker 02:
But you don't dispute that the agreement resolved the case, right?

[00:19:48] Speaker 04:
Not at the time it was intended to ultimately resolve the case, but at the time it was signed and on June 20th.

[00:19:53] Speaker 02:
You dispute that the agreement was binding apart from this argument that you make about frustration of purpose.

[00:20:01] Speaker 02:
It was binding, right?

[00:20:02] Speaker 02:
It was binding.

[00:20:02] Speaker 02:
At the time it was executed, it was binding.

[00:20:04] Speaker 04:
It was binding, yes.

[00:20:05] Speaker 04:
Just like the signed agreements in Gould and Selke.

[00:20:08] Speaker 00:
Well, isn't that in the case?

[00:20:12] Speaker 04:
This settlement agreement did not end the case on June 18th when it was signed.

[00:20:17] Speaker 04:
There was no final settlement on June 20th when the district court entered its summary judgment order.

[00:20:22] Speaker 04:
And therefore, again, because CERTA bargained to keep the case alive.

[00:20:27] Speaker 04:
It said that in its brief, that it was unsure about payment and so it negotiated to keep the case alive.

[00:20:35] Speaker 04:
It could have done something different.

[00:20:37] Speaker 04:
It could have negotiated to file an immediate Rule 41 dismissal, which is self-executing.

[00:20:43] Speaker 02:
What do you mean negotiated to keep the case alive?

[00:20:45] Speaker 02:
The settlement agreement resolved the case.

[00:20:49] Speaker 04:
Your Honor, Council Ferserta stood up here and told, Your Honor, that it was the intention of the parties to keep the case open for purposes of enforcement.

[00:20:58] Speaker 02:
A consent judgment resolves the case, but that doesn't prevent the court from having jurisdiction to enforce the consent judgment.

[00:21:05] Speaker 04:
It depends on what the consent judgement includes.

[00:21:09] Speaker 04:
Under Kokonin, in order to have jurisdiction to enforce, the court would have had to incorporate the settlement agreement into an order so that under ancillary jurisdiction it was exercising its powers to enforce its own orders.

[00:21:22] Speaker 04:
Or potentially, although Kokonen rejects this proposition, it would have to be ancillary in the sense that it involved the same case or controversy.

[00:21:32] Speaker 04:
Kokonen actually said it didn't apply that leg of ancillary jurisdiction, and I think it equally would not apply here.

[00:21:38] Speaker 04:
But those are the only two basis for a district court to have jurisdiction to enforce a settlement agreement.

[00:21:44] Speaker 04:
Neither of those are present here.

[00:21:45] Speaker 00:
So let me be sure I understand your argument.

[00:21:50] Speaker 00:
Your position boils down to one rather specific question, and that is, was this a settlement agreement, a final settlement agreement, even though there were things yet to be performed?

[00:22:09] Speaker 00:
Your position is that was not a binding

[00:22:13] Speaker 04:
cc

[00:22:25] Speaker 00:
It was a settlement agreement that was binding on the parties.

[00:22:30] Speaker 00:
You agree to that?

[00:22:31] Speaker 04:
It was a settlement agreement that was binding on the parties, the terms of which ultimately, had everything been carried out, would have resolved the case.

[00:22:40] Speaker 00:
However, just like in Gould and Set... It did not resolve the case, it would have resolved the settlement agreement.

[00:22:47] Speaker 00:
It didn't say anything about the case.

[00:22:50] Speaker 00:
That's for us to decide whether it resolved the case.

[00:22:54] Speaker 00:
But the question is, was the settlement agreement a binding agreement with future performance to be provided?

[00:23:03] Speaker 04:
The settlement agreement was an agreement that was binding on the parties to carry out the steps therein and specifically provided that there would be no dismissal and no release

[00:23:14] Speaker 04:
and therefore no resolution of the controversy between the parties on the date it was signed.

[00:23:21] Speaker 04:
That was the state of play on June 20th when the district court entered its summary judgment order.

[00:23:28] Speaker 00:
And you get there by your reading of the settlement agreement?

[00:23:30] Speaker 04:
By the plain words of the settlement agreement that say in section 2.2 that the motion to stay was pending final settlement.

[00:23:39] Speaker 01:
если мы согласны с вами, и мы думаем, что поселительный договор был оформлен и выполнен, и что у нас не было ни одного, ни два, ни три в случае или противоречии, а потом мы проведем расследование, что еще вы думаете должно случиться?

[00:23:57] Speaker 01:
Я просто спрашиваю, что будет происходить?

[00:24:00] Speaker 01:
Существующий поселитель задает, что мы заменим с инструкцией, чтобы уничтожить поселительный договор.

[00:24:05] Speaker 01:
Какая ваша позиция на этом?

[00:24:07] Speaker 04:
If this court were to find that there was no case or controversy, that the case was moot on June 20th, such that the district court did not have power to enter the summary judgment order, then the case was moot for all purposes.

[00:24:21] Speaker 00:
Including enforcement?

[00:24:22] Speaker 04:
Including enforcement.

[00:24:23] Speaker 00:
Kokonen is absolutely clear about that.

[00:24:29] Speaker 00:
But there are lots of cases that say the opposite.

[00:24:30] Speaker 00:
There are lots of cases that say that the district court retains jurisdiction for enforcement.

[00:24:34] Speaker 04:
The district court must retain jurisdiction.

[00:24:36] Speaker 04:
In this case, it did not.

[00:24:38] Speaker 04:
This is what Kokonen changed about the law prior to Kokonen.

[00:24:42] Speaker 04:
And I would note that Serta cites many pre-Kokonen cases that talk about an inherent power.

[00:24:46] Speaker 04:
Kokonen rejected that.

[00:24:49] Speaker 04:
Kokonen said, there is no inherent power to enforce.

[00:24:52] Speaker 04:
It has to come to Europe somewhere.

[00:24:54] Speaker 02:
It's not dealing with situations where there's a settlement before the judgment.

[00:24:58] Speaker 02:
It's not dealing with this situation.

[00:25:03] Speaker 02:
It's not dealing with situations in which there's a settlement agreement before the court enters judgment.

[00:25:09] Speaker 04:
I'm not sure if that's correct, Your Honor.

[00:25:13] Speaker 04:
It deals with when the court has jurisdiction to entertain a motion to enforce.

[00:25:18] Speaker 04:
And what it makes clear is that a district court does not have inherent power to enforce a state court contract between two parties, even though it settles the case.

[00:25:31] Speaker 04:
It has to come from ancillary jurisdiction, meaning in Kokonin it related to

[00:25:38] Speaker 04:
whether a court had the power to enforce its own orders.

[00:25:41] Speaker 02:
And the court there, like here... In Kokonin, the settlement was reached after the district court's judgment, right?

[00:25:47] Speaker 04:
In Kokonin, the settlement... I'm not sure the timing of the settlement, but what I know, Your Honor, is that when the motion to enforce was brought, when the motion to enforce was brought, the case was closed.

[00:25:58] Speaker 04:
And the court had not incorporated the terms of the settlement,

[00:26:04] Speaker 04:
or stated that the settlement was so ordered.

[00:26:07] Speaker 04:
And actually now I recall, so what happened was the parties came to the court and they recited the terms of their agreement, which the court heard, but did not incorporate into any order.

[00:26:17] Speaker 02:
Or maybe we should direct the district court to incorporate the settlement agreement in a word.

[00:26:22] Speaker 04:
I don't think this court has power to do that.

[00:26:24] Speaker 04:
It's discretionary on the district court.

[00:26:27] Speaker 04:
The district court has discretion to decide whether to entertain an enforcement motion over a state court matter.

[00:26:34] Speaker 04:
It has that discretion if it has jurisdiction, but as we've made clear, in this case under Kokonin, there was no jurisdiction to entertain that motion.

[00:26:42] Speaker 00:
We can always find that the district court's decision was an abuse of discretion, can't we?

[00:26:47] Speaker 04:
Not in this case, Your Honor.

[00:26:52] Speaker 04:
I see I'm cutting into my rebuttal time.

[00:26:55] Speaker 04:
I'm happy to keep going if the court does not have questions on the cross-appeal.

[00:26:58] Speaker 04:
If there are questions on the cross-appeal, I'd like to reserve my time.

[00:27:01] Speaker 00:
I have one quick question remaining, which is you spent a lot of time

[00:27:06] Speaker 00:
Discussing their bad behavior.

[00:27:10] Speaker 00:
Why did you do what what was the point of that?

[00:27:12] Speaker 00:
What do you want us to get from that your honor?

[00:27:14] Speaker 04:
There were discovery abuses in this case that I believe if a court does not sanction they invite There's the issue of the merits and I think those speak for themselves.

[00:27:26] Speaker 04:
This is a case in which the merits were so strong that

[00:27:28] Speaker 04:
district court saw a motion to stay pending settlement and denied it and within 48 hours issued a summary judgment ruling totally vindicating casper that's the merits but when you look to the discovery conduct this is a case in which as just one example the attorney's fees issue becomes moot if we rule against you on the settlement agreement right you're no longer a prevailing authority that's correct your honor okay

[00:27:57] Speaker 02:
All right.

[00:27:59] Speaker 04:
Thank you, Mr. Mayor.

[00:28:01] Speaker 02:
Thank you.

[00:28:02] Speaker 02:
Mr. Schoenhart.

[00:28:11] Speaker 03:
Thank you, Your Honor.

[00:28:12] Speaker 03:
Just a few notes briefly.

[00:28:14] Speaker 03:
As to Kokonen, I think it's easy to get Kokonen very confused, but I think that it can be readily dispensed with.

[00:28:22] Speaker 03:
Kokonen addressed a situation in which the parties had in fact entered a stipulated dismissal.

[00:28:28] Speaker 03:
The Supreme Court was addressing whether the court retained jurisdiction to enforce a settlement agreement after that dismissal had been filed.

[00:28:35] Speaker 03:
Here, the parties did not get to the point of that dismissal.

[00:28:39] Speaker 03:
In fact, that's why, in the post-Kakunin world, parties generally ask a court to stay pending such things as a settlement payment rather than immediately dismissing cases.

[00:28:49] Speaker 03:
I don't think Kakunin gets us anywhere.

[00:28:51] Speaker 03:
What does get us someplace is this court's and the Second Circuit's decisions, this court indeed, post-Kakunin, addressing what to do

[00:29:00] Speaker 03:
where there is a settlement.

[00:29:03] Speaker 03:
This court's cases in Exigent and Gould, and of course not to be confused, Casper cites to a Seventh Circuit Gould case, we cite to a Federal Circuit Gould case, but this court's decisions in Exigent and Gould both advise that where there is a fully executed settlement agreement,

[00:29:21] Speaker 03:
then it is appropriate to vacate the decision below and remand for enforcement of the agreement.

[00:29:30] Speaker 03:
There is a reverse and a remand in exigent.

[00:29:32] Speaker 03:
Similarly in Gould, that is the appropriate course of conduct.

[00:29:36] Speaker 03:
Exigent was 2006.

[00:29:38] Speaker 03:
That's over a decade after Kokonin.

[00:29:40] Speaker 03:
This court was well aware of the Kokonin decision and what its implication would be.

[00:29:44] Speaker 03:
where as in exigent and as in here, and you'll note that the exigent case is very similar to this in that there was a grant of summary judgment of non-infringement and also invalidity and unenforceability claims that were not addressed, just as the district court here did not address those claims in its June 20 summary judgment.

[00:30:04] Speaker 03:
I would also refer you to the Second Circuit's decision in JANA that does predate Kokonin, but it points out that this circuit and the Second Circuit are aligned on how to address situations like this.

[00:30:18] Speaker 03:
In JANA, the Second Circuit ordered a reverse and remand with instructions to enforce.

[00:30:24] Speaker 03:
In that case, unlike this, the settlement at issue had not even been fully

[00:30:29] Speaker 03:
rather the parties had reached a settlement in principle and the court stated at 436 of its decision, a binding settlement was reached and should have been enforced.

[00:30:41] Speaker 03:
A settlement is a contract and once entered into is binding and conclusive.

[00:30:45] Speaker 03:
So too here.

[00:30:47] Speaker 03:
I note that Ms.

[00:30:48] Speaker 03:
Dominguez referred to the language out of the payment term here that references pending final settlement.

[00:30:55] Speaker 03:
The distinction is actually whether a settlement is fully performed and final, or whether the settlement agreement itself is.

[00:31:04] Speaker 03:
Here, the settlement agreement itself was fully executed, and as Ms.

[00:31:09] Speaker 03:
Dominguez acknowledges, was binding at the time it was fully executed.

[00:31:17] Speaker 02:
Okay.

[00:31:17] Speaker 02:
I think we're out of time.

[00:31:18] Speaker 02:
Thank you, Mr. Chairman, for your time.

[00:31:18] Speaker 02:
Thank you.

[00:31:19] Speaker 02:
There wasn't any discussion of the cross appeals, so there's no occasion for a while.

[00:31:23] Speaker 02:
Okay, thank all counsel, the case is submitted.