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Friday, December 28, 2012
Monday, December 17, 2012
iPhone $AAPL 5 sales in China surpass 2 million in first weekend
iPhone $AAPL 5 sales in China surpass 2 million in first weekend
Meanwhile, Morgan Stanley Says iPhone Demand Is Off The Charts $AAPL
Meanwhile, Morgan Stanley Says iPhone Demand Is Off The Charts $AAPL
Apple's stock has been crushed since the end of September when it closed above $700 for the first time ever.
Apple's stock has been crushed since the end of September when it closed above $700 for the first time ever.
On Friday it closed at $509.79, a new low in this slump.
As Apple's stock has fallen, analysts have slowly started dialing back expectations. Jefferies, UBS, and tonight, Citi,all cut their price targets on the stock.
All three are cutting for basically the same reason — Asian suppliers say Apple cut its orders for the iPhone 5 in the first quarter of the year. This suggests demand for the iPhoneis not fantastic, though it's probably still good. The other reason is that the iPad Mini is eating into sales of the full sized iPad.
Morgan Stanley analyst Katy Huberty is out with a note knocking down both of those theories. Here's the key takeaways from her note:
- There is "strong demand" for the iPhone 5."Importantly, a greater percentage of consumers plan to purchase the higher priced iPhone 5 as compared to iPhone 4S mix a year ago. As a result, we see potential upside to both our 50M unit (+35% Y/Y) and $642 (-4%) ASP assumptions in C4Q."
Thursday, December 13, 2012
Wednesday, December 12, 2012
Woman Tasered after trying to buy too many iPhones $AAPL
Woman Tasered after trying to buy too many iPhones $AAPL
"Normally, when you hear screams outside an Apple store, it's because, oh, the doors have opened and there's a new gizmo for the insatiable.
However, at the Apple store in the Pheasant Lane Mall in Nashua, N.H. on Tuesday, the screams were those of a 44-year-old Chinese woman being Tasered by police.
As WMUR-TV reports, Xiaojie Li, of Newton, N.H. says -- through her 12-year-old daughter's translation -- that she isn't proficient in English.
What seems clearer is that she tried to buy more iPhones than was the store's maximum of two. Li told WMUR-TV that they were for family members in China.
On Friday, she had bought two -- which would suggest her English had been good enough to make the purchases. On Tuesday, she came back to buy more.
Her daughter says that the Apple store asked her to leave, but her mother didn't understand."
Friday, December 7, 2012
Sunday, December 2, 2012
Saturday, December 1, 2012
Apple Says It Was Unaware of Samsung Jury Foreman’s Suit $AAPL #FAIL
Apple Says It Was Unaware of Samsung Jury Foreman’s Suit $AAPL #FAIL
Apple Inc. (AAPL) said it wasn’t aware during trial that the foreman of the jury that issued a $1.05 billion verdict against Samsung Electronics Co. was involved in a lawsuit with his former employer, Seagate Technology Inc.
Samsung asked Apple to disclose when it first learned about the litigation between the jury foreman, Velvin Hogan, and Seagate. Apple responded in a filing yesterday in federal court in San Jose, California.
Samsung is attempting to get the Aug. 24 verdict thrown out based on claims the trial was tainted by the foreman’s failure during jury selection to tell U.S. District Judge Lucy H. Koh, who presided over the case, that he filed for bankruptcy in 1993 and was sued by Seagate.
Monday, November 26, 2012
Apple $AAPL seeks to add more products to Samsung patent lawsuit
Apple $AAPL seeks to add more products to Samsung patent lawsuit
Apple Inc has asked a federal court to add six more products to its patent infringement lawsuit against Samsung Electronics Co, including the Samsung Galaxy Note II, in the latest in move in an ongoing legal war between the two companies.
Apple Inc has asked a federal court to add six more products to its patent infringement lawsuit against Samsung Electronics Co, including the Samsung Galaxy Note II, in the latest in move in an ongoing legal war between the two companies.
The case is one of two patent infringement lawsuits pending in the
U.S. District Court in San Jose by Apple against Samsung. An earlier lawsuit by
Apple that related to different patents resulted in a $1.05 billion jury verdict
against Samsung on August 24.
Apple is also seeking to add the Samsung Galaxy S III, running the
new Android "Jelly Bean" operating system, the Samsung Galaxy Tab 8.9 Wifi, the
Samsung Galaxy Tab 2 10.1, the Samsung Rugby Pro, and the Samsung Galaxy S III
Mini, to its lawsuit, according to a court filing on Friday.
Friday, November 23, 2012
Thursday, November 22, 2012
U.S. judge orders Apple $AAPL to tell Samsung details of HTC deal
U.S. judge orders Apple $AAPL to tell Samsung details of HTC deal
A U.S. judge has ordered Apple Inc to disclose to rival Samsung Electronics details of a legal settlement the iPhone maker reached with Taiwan's HTC Corp, including terms of a 10-year patents licensing agreement.
The Korean electronics giant had earlier filed a motion to compel its U.S. rival -- with whom it is waging a bitter legal battle over mobile patents across several countries -- t o reveal details of the settlement that was reached on Nov. 10 with HTC but which have been kept under wraps.
In August, the iPhone maker won a $1.05 billion verdict against Samsung after a U.S. jury found that certain Samsung gadgets violated Apple's software and design patents.
Now, legal experts say the question of which patents are covered by the Apple-HTC settlement, and licensing details, could be instrumental in Samsung's efforts to thwart Apple's subsequent quest for a permanent sales ban on its products.
Monday, November 19, 2012
Sunday, November 18, 2012
$AAPL $MSFT $GOOG Woz: Microsoft might be more creative than Apple #video
$AAPL $MSFT $GOOG Woz: Microsoft might be more creative than Apple #video
"It's something that might almost seem obvious.
"It's something that might almost seem obvious.
But it takes someone of Steve Wozniak's wonderful unedited disposition to say it: Microsoft might currently be more forward-thinking than Apple.
In an interview with TechCrunch's affable rabid soccer fan (Spurs is his team) and forward-thinker Andrew Keen, Woz was very open to the idea that Redmond might have been spending quite some time lately trying to create more "wow" products than Apple.
Woz was moved less by Surface, it seemed, than by the idea that Microsoft was working on technology that made simultaneous translations. Yes, a lot more colloquial than Google manages right now.
He said: "If they're making strides in this voice recognition area, I fear that Microsoft might have been sitting in their labs trying to innovate."
The contrast, he said, was perhaps that "Apple was just used to cranking out the newest iPhone and falling a little behind and that worries me greatly."
Saturday, November 17, 2012
Is Apple's Stock Price Being Hit By The Fiscal Cliff?
Is Apple's $AAPL Stock Price Being Hit By The Fiscal Cliff?
"The second is that in the economics of taxation is is a basic assumption (also a basic proof) that you want to tax capital incomes less than labour incomes. For it’s investment that produces the wealth and jobs of tomorrow and if we tax investment returns people will invest less. Thus less wealth and fewer jobs in the future.
"The second is that in the economics of taxation is is a basic assumption (also a basic proof) that you want to tax capital incomes less than labour incomes. For it’s investment that produces the wealth and jobs of tomorrow and if we tax investment returns people will invest less. Thus less wealth and fewer jobs in the future.
But leave aside these longer term points. People who have ridden the Apple stock in its surge over the past couple of years face a 15% tax bill if they sell now and a possible 35% one if they do in January. The thought is therefore that some goodly number of people are doing this. Something which is entirely possible as an explanation for the recent wilting of Apple’s stock price."
Friday, November 16, 2012
New Altucher Article $VRNG $GOOG $NOK #zte 6.50-18.00$ price target.
New Altucher Article $VRNG $GOOG $NOK #zte
Do I think VRNG is a $7 billion company in the making? That seems too unrealistic at this point. Too many unknowns. So let's discount that down 70%. Instead of putting a 10x multiplier on their cash (which, by the way, the market put a 10x multiplier on patent company VirnetX(VHC) 's cash) let's just put a 3x multiplier on it.
Do I think VRNG is a $7 billion company in the making? That seems too unrealistic at this point. Too many unknowns. So let's discount that down 70%. Instead of putting a 10x multiplier on their cash (which, by the way, the market put a 10x multiplier on patent company VirnetX(VHC) 's cash) let's just put a 3x multiplier on it.
What if Google appeals? If Google appeals, then Google might have a problem. Vringo can appeal the laches rulings (which limited the past damages) and Vringo can appeal the jury verdict, which it now appears was a mathematical error that won't be corrected. (More on the laches rulings here). Meanwhile, the cost to Vringo on any appeal is close to zero. Some people have said that "Google can appeal this for years…" And my response: change that to "year". That's the law. Look it up. The Supreme Court won't take this so there's only one court to send this to.
- Is there any other upside? Yes, huge. If VRNG sues MSFT , YHOO, etc the laches which limit damages no longer applies. Damages can go all the way back to 2001. And if we avoid any mathematical errors the numbers can be much larger. In the above, even in the best-case scenario, I took a very conservative estimate. It might not be so conservative in the real world. But better safe than sorry.
When I first wrote about this stock it was about $1.80. Now it's $3.67. It's been as high as $5.75. People played this with various strategies. I hope people made a lot of money. But, now we are here and we have to decide what to do. I like the risk-reward a lot. I think there is very little downside now.
We are past the binary event of a jury verdict. It's over. Vringo won. And it wasn't a $30 million settlement. It was more like a $500 million verdict. Figure out the exact cash Vringo is going to have. Figure out what they will continue to make. Compare with the current market cap.
Good luck investing.
Thursday, November 15, 2012
Wednesday, November 14, 2012
#Samsung $AAPL Quinn Emmanuel Jury Misconduct Statements Filing
This is the rare case where juror misconduct requires new trial because the jury foreman withheld crucial information at the very moment it was most important that he reveal it. Apple also fails to refute the evidentiary and legal errors warranting the Court’s relief. And review of the jury’s damages awards shows, down to the dollar, the serious errors that require remittitur.Down to the dollar. That was probably fun, because the math warranted an F. In addition to the voir dire issue, there is this:
Once inside the jury room, Mr. Hogan acted as a “de facto technical expert” who touted his high-tech experience to bring the divided jury together. Dkt. 2013-1, ¶11. Contrary to this Court’s instructions (e.g., Dkt. 1893 at Instr. Nos. 24, 26, 27, 31- 33, 49-51), he told other jurors incorrectly that an accused device infringes a utility patent unless it is “entirely different” (id., ¶15); that a prior art reference could not be invalidating unless that reference was “interchangeable” (id., ¶14, 16); and that invalidating prior art must be currently in use (id., ¶17). He thus failed “to listen to the evidence, not to consider extrinsic facts, [and] to follow the judge’s instructions.” 151 F.3d at 983.5
#Samsung Accuses Jury Foreman of Deception $AAPL
#Samsung Accuses Jury Foreman of Deception $AAPL
"Samsung is clearly accusing Hogan in its recent filing of influencing the jury in favor of Apple. Samsung said in its filing: 'Mr. Hogan's own statements to the media suffice if such a showing is required. Once inside the jury room, Mr. Hogan acted as a "de facto technical expert" who touted his high-tech experience to bring the divided jury together. Contrary to this Court's instructions, he told other jurors incorrectly that an accused device infringes a utility patent unless it is "entirely different"; that a prior art reference could not be invalidating unless that reference was "interchangeable"; and that invalidating prior art must be currently in use. He thus failed "to listen to the evidence, not to consider extrinsic facts, [and] to follow the judge's instructions."'"
"Samsung is clearly accusing Hogan in its recent filing of influencing the jury in favor of Apple. Samsung said in its filing: 'Mr. Hogan's own statements to the media suffice if such a showing is required. Once inside the jury room, Mr. Hogan acted as a "de facto technical expert" who touted his high-tech experience to bring the divided jury together. Contrary to this Court's instructions, he told other jurors incorrectly that an accused device infringes a utility patent unless it is "entirely different"; that a prior art reference could not be invalidating unless that reference was "interchangeable"; and that invalidating prior art must be currently in use. He thus failed "to listen to the evidence, not to consider extrinsic facts, [and] to follow the judge's instructions."'"
Tuesday, November 13, 2012
$FB (MarketWatch) Rising revenue won’t flow to bottom line
$FB (MarketWatch) Rising revenue won’t flow to bottom line
"That in turn will make its shares less attractive during that time to fund managers and other professional stock buyers who look for value as well as growth when choosing stocks.
Facebook’s massive stock-compensation bill shows the cost to common shareholders of the company’s generosity in handing out equity to employees, executives and early investors. Any net income Facebook might have generated in the near future already has been given away in advance, in the form of free equity, to these insiders.
Because new stock-compensation charges and related taxes will be incurred on Jan. 1, adding to the existing total, Facebook’s per-share earnings may continue to be wiped out by these costs beyond next year.
Facebook’s third-quarter results provided a snapshot of this effect, as those insiders who were free to sell their shares did so in large numbers, generating huge expenses for the company."
Monday, November 12, 2012
Vringo $VRNG Vs. Google $GOOG: Seeing The Forest For The Trees
Vringo $VRNG Vs. Google $GOOG: Seeing The Forest For The Trees
" If it is a simple mistake, like a missing zero, then there I suppose there is a possibility that the Judge could address and maybe even fix, the mistake. But in doing so, we would be creating a minefield of appealable issues. If there was a mistake, there is also the possibility that the mistake was not a simple mathematical mistake, but a more significant mistake, like how the damages evidence was to be interpreted, or how the questions on the jury verdict form interrelated. I suspect this may be the case, because of the several questions the jury asked during deliberations concerning damages. Because of those questions, I doubt that the jury made a simple mathematical error, as many hope and suspect. I think that if a mistake was made, it was a mistake of understanding the interplay between the past damage award (the $30 million) and the running royalty, and when the running royalty would ultimately begin. This kind of mistake would be almost impossible, if not absolutely impossible, to fix without a retrial. Any takers for a retrial? I didn't think so.
" If it is a simple mistake, like a missing zero, then there I suppose there is a possibility that the Judge could address and maybe even fix, the mistake. But in doing so, we would be creating a minefield of appealable issues. If there was a mistake, there is also the possibility that the mistake was not a simple mathematical mistake, but a more significant mistake, like how the damages evidence was to be interpreted, or how the questions on the jury verdict form interrelated. I suspect this may be the case, because of the several questions the jury asked during deliberations concerning damages. Because of those questions, I doubt that the jury made a simple mathematical error, as many hope and suspect. I think that if a mistake was made, it was a mistake of understanding the interplay between the past damage award (the $30 million) and the running royalty, and when the running royalty would ultimately begin. This kind of mistake would be almost impossible, if not absolutely impossible, to fix without a retrial. Any takers for a retrial? I didn't think so.
Finally, we really need to consider that Vringo may not want to go anywhere near trying to get anything changed with the verdict form. Remember the tree vs. the forest. Do we really want to risk tearing the forest down so that we can replant one tree? As a Vringo shareholder, I am much more invested in consolidating our very substantial gains in this trial than I am in chasing more past damages from Google. I'm sure that Vringo's attorneys are looking at this issue, and maybe they've already decided what direction they are going. We'll know for sure when Vringo files its post-trial motions.
You may feel differently, but we really have to understand that the major battle was won, and decisively so. It may be time to take ZTE to the doctor and let Google go about the business of working to earn us some future royalties."
Protection From Falls, Fights: Here's a sampling of some recently granted patents
Protection From Falls, Fights: Here's a sampling of some recently granted patents
The Hot Seat
A police car's door or body can provide officers protection from gunfire. But for those who patrol on bicycles, there's little shield from bullets or other projectiles. U.S. Patent No. 8,272,310 could give those on two-wheeled vehicles some cover.
Bicycles and motorcycles give police officers a cheaper and more agile way to patrol, but not much protection from gunfire. This invention tries to remedy that with a bullet-resistant shield that can be mounted to the rear wheel of a common bike or motorcycle. And it even has a place to store equipment.
The compartment would include drop-down or pop-up panels "to cover the vital areas of the body as an officer crouches behind it for protection," according to the patent filing. Some of the shield would be made of transparent material, like bulletproof glass, so an officer can see through the panel when returning fire.
The inventor is Dennis Ingram of Cherry Hill, New Jersey.
Personal Roll Bar
If you anticipate taking a nasty tumble, or if you're a total klutz, this invention for a personal roll bar is designed to protect a person's head and neck by transferring the force of impact to the waist.
Of course, if a wearable roll bar isn't the look you're after, there's always the jacket with abuilt-in parachute.
The inventor is Kurt Hamilton of Orange, California.
Are We There Yet?
What is it about the back seat of a car that makes kids want to fight? Perhaps it has to do with being strapped down in close proximity to one another with no one to break up the battle. If that's the case, could the simple invention in U.S. Patent No. 8,272,674 serve as the peacemaker?
Divide and Conquer
We told you it was simple. This invention for a seat partition with a deformable frame supposedly "reduces the interaction" between the kids and keeps them under control. "This allows for an improved atmosphere in the vehicle, especially so that the driver can better focus on driving," according to the patent filing.
The inventor is George Vance of Rock Hill, South Carolina.
One on None
As popular as basketball is, getting enough players to show up for practice can be difficult. U.S. Patent No. 8,277,340 claims to have the perfect substitution.
Stiff Competition
Not enough players for practice? Roll these guys out. This basketball training device, designed to mimic an opposing player, sits on caster wheels so it can be pushed and pulled around the court by a coach using a long rod. If a player is about to take a shot, the coach can also release a latch that causes the man-shaped object to move up, simulating a defender jumping up to block a shot.
The inventor is Anthony Devine of Bristol, Pennsylvania.
Blanket Coverage
It may remind you of the Snuggie or the Slanket, but the inventor behind U.S. Patent No. 8,276,224 would have you believe it's something very different (and cozy).
Embedded
Just when you thought it was safe again to buy a blanket without sleeves, here comes a "bed sheet with integrated sleeping garment."
The invention, designed for infants, kids and adults (we know you're thinking about yourself), includes a bedsheet with a built-in garment that holds the user securely in the middle of the mattress. The sheet, which also allows the user to sit or stand on the mattress, keeps the person warm without the use of a separate blanket, according to the patent filing.
The inventors are Joanna and Jan Marco von Yurt of Santa Barbara, California.
Sunday, November 11, 2012
Is $VRNG Next After $AAPL #HTC Deal? #Android $GOOG
"There has already been quite a bit of speculation about why the deal happened. Some think it means Apple is softening its stance on patents. I disagree. To me, this looks more like Apple going for the jugular of one of Google’s weakened proxies, and, perhaps, the beginning of the endgame in its war on Android.
Because of the sheer number of patents Apple holds (many thousands), as well as the company’s perceived strength after a string of big wins, such as the billion-dollar jury verdict against Samsung and a recent win at the U.S. International Trade Commission, Apple was clearly in the dominant negotiation position. HTC, on the other hand, had comparatively little to bring to the table, with fewer than 300 U.S. patents and slipping market share. That almost certainly means this deal was not a pure license-for-license deal. Instead, HTC must have agreed to pay Apple a royalty on every Android device it sells."
Friday, November 9, 2012
Thursday, November 8, 2012
Is Modernist Just A Shill for $GOOG ? See their $DDMG (Bankrupt Pick) from Late August. $PSTI Down a lot as well.
Is Modernist Just An Insider Shill for $GOOG ? See their $DDMG (Bankrupt Pick) from Late August & MANY Other Bad Ones
Modernist trots their expertise on various matters.
See their original posting on DDMG (which soon there after went bankrupt).
What an expert!!!!
Modernist trots their expertise on various matters.
See their original posting on DDMG (which soon there after went bankrupt).
What an expert!!!!
"Five months ago, I provided five futuristic, imaginative picks to exploit the market's fearful, reactionary preoccupation with "value" and familiarity.
With today's zeitgeist favoring conservative stocks regardless of context, the market has turned its attention away from growth and imagination.
I put together a basket of stocks that are higher in price relative to backwards-looking fundamentals. These stocks have technologies woven into their business models, producing investments which are theoretically sensible yet practically unproven. This grey area in combination with an overly fearful market allows a discount in share price.
The picks have overlapping relevance across energy, transportation, media, and health. These are high-risk stocks which allow for high reward; however, this makes diversification necessary. Clearly this basket alone is not a full portfolio.
Here are my five recommendations from the article:
- Lightbridge (LTBR) (Energy)
- Tesla (TSLA) (Transportation, Energy)
- Digital Domain Media Group (DDMG) (Media)
- Google (GOOG) (Transportation, Media)
- Pluristem (PSTI) (Biotech)
I disclosed a long position in Pluristem. I did not suggest weighting any company above another. Here is a chart of the price performance since:"
UPDATE: Closer Look: Vringo Now Stands To Earn Over $600 Million In High-Margin Royalty Revenues Through 2014 (Reuters) $VRNG $GOOG
UPDATE: Closer Look: Vringo Now Stands To Earn Over $600 Million In High-Margin Royalty Revenues Through 2014 (Reuters)
A detailed analysis of revenue and royalty documents related to Vringo`s (VRNG) recent patent infringement case victory against Google (GOOG) as well as AOL (AOL), IAC Search & Media (IACI), Gannet Company (GCI)) , and Target Corporation (TGT), Vringo stands to bring in over $600 million in royalty revenues through 2014.
Vringo said in its press release issued on November 7th that the way to determine the incremental royalty base attributable to Google`s infringement was to calculate 20.9% of Google`s US AdWords revenues, then apply a 3.5% running royalty rate on that base.
Google is estimated to have $11 billion in ad revenues from mid-November 2012 through the end of calendar 2012. 95% or $10.45 billion of this is from AdWords. The US cut of that $10.45 billion is 45% or $4.7 billion. The jury awarded about 20% of this amount as a base from which to calculate the 3.5% royalty. 20% of $4.7 billion is about $970 million and at a 3.5% royalty rate this yields about $34 million in royalty payments from Google to Vringo in 2012.
This same formula may be applied to the projected total ad revenues for 2013 through the end of April 2016 when the royalty is slated to end.
Based on Google`s past growth rates, Google may see strong growth in its total ad revenues to $50 billion in 2013; $58 billion in 2014; $67 billion in 2015; and $19 billion for the first four months of 2016. The numbers add up to $635 million in royalties to Vringo over the next four years.
Based on Google`s past growth rates, Google may see strong growth in its total ad revenues to $50 billion in 2013; $58 billion in 2014; $67 billion in 2015; and $19 billion for the first four months of 2016. The numbers add up to $635 million in royalties to Vringo over the next four years.
These figures only include Google, which of course contributes the biggest slice of royalties for Vringo at the moment, but once royalties from the other four defendants are added, the $635 million target gets bigger, not smaller.
We are also reminded that this revenue is "all cash flow" with little, if any, costs associated on a going forward basis.
$VRNG $GOOG Sick and tired of Dan Ravicher's Lies and Half Truths? See FRCP 60 Overview.
The truth will emerge, do not sell and be tricked by biased shorts who want to see patent inventors and other innovators destroyed. This verdict will stand and justice shall fully prevail!
"VRNG investors,
Are you sick and tired of Dan Ravicher telling you that Judge Jackson cannot and will not correct the jury's rather apparent computational error? Well, I certainly am. Just spent about 2 hours on West Law researching Rule 60(a) motion and learned that Ravicher is simply uninformed about Federal Rules of Civil Procedure. Feel free to critique and check my citations (not making this up!)
Disclaimer: This is not a buy rec..Do your own due diligence!!
Text of FRCP 60(a)
Rule 60. Relief from judgment or order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
Relief under FRCP 60(a)
Under FRCP 60(a), “the court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.†The rule provides for correction of clerical errors or oversights, and does not contemplate correction of substantive mistakes. American Trucking Assos. v Frisco Transp. Co. (1958) 358 US 133 (it is axiomatic that courts have both power and duty to correct judgments containing clerical errors or mistakes). “The basic distinction between ‘clerical mistakes' and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of ‘blunders in execution’ whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination.†Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir.1987) In determining whether a motion should be considered a motion under Rule 60(a) or some other Rule, the court must look to the substance of the motion rather than its form. BBCA, Inc. v United States (1992, CA8 Minn), 113 S Ct 192 (although motion seeking to clarify that dismissal was with prejudice was denominated as motion under Rule 59(e), it came under Rule 60(a) because it merely sought to correct clerical mistake).
The scope of Rule 60(a) is very limited. In Dura–Wood Treating Co., Division of Roy O. Martin Lumber Co. v. Century Forest Industries, Inc., 694 F.2d 112 (5th Cir.1982), the court set out these limits:
Rule 60(a) finds application where the record makes apparent that the court intended one thing but by merely clerical mistake or oversight did another. Such a mistake must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature.... (Citations omitted).
Thus, it is proper to use Rule 60(a) to correct a damages award that is incorrect because it is based on an erroneous mathematical computation, whether the error is made by the jury or by the court. Errors of a more substantial nature are to be corrected by a motion under Rule 59(e) or 60(b). Correction of an error of “substantive judgment,†therefore, is outside the reach of Rule 60(a). Hendrick v. Avent, 891 F.2d 583, 588 (5th Cir. 1990)
Although motions under FRCP 60(a) have largely replaced the use of nunc pro tunc orders to correct clerical errors, the use of such orders has not been expressly superseded. LeBeau v Taco Bell (1989, CA7 Ill) 892 F2d 605, 15 FR Serv 3d 436 [District Courts have inherent authority to enter nunc pro tunc orders to show what was actually done but not properly recorded].
Legal Standard
Courts must defer to the jury’s damages award if there is “any rational basis for the verdict.†Berger v. Zeghibe, 2010 WL 3928621, at (E.D. Pa. Oct. 6, 2010) (quoting Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir. 1987)). A “court may not vacate or reduce the award merely because it would have granted a lesser amount of damages.†Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989). The jury’s award is to be upheld “if there exists a reasonable basis to do so.†Id. (citing Nairn v. National Railroad Passenger Corp., 837 F.2d 565, 570 (2d Cir. 1988)).
However, if a court believes a jury’s award is unreasonable in light of the facts, it may remit the award. Cortez v. Trans Union, LLC, 617 F.3d 688, 716 (3d Cir. 2010). “A jury's award of damages can only be reduced to the highest dollar amount that the jury could have properly awarded.†Young v. Lukens Steel Co., 881 F. Supp. 962, 976 (E.D. Pa. 1992) In particular, “jury verdicts can be disturbed when they are subject to mathematical calculations and there is a clear error in the calculation.†Id. see also Maylie v. Nat’l Railroad Passenger Corp., 791 F. Supp. 477, 482 (E.D. Pa. 1992) (offering plaintiff opportunity to remit damages where the damages award was not supported by the evidence but instead it seemed “likely that the jury simply erred in its calculationâ€).
Widely-Cited Third Circuit Case: Matter of W. Texas Mktg. Corp.
“The relevant test for the applicability of Rule 60(a) is whether the change affects substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or is instead a clerical error, a copying or computational mistake, which is correctable under the Rule. As long as the intentions of the parties are clearly defined and all the court need do is employ the judicial eraser to obliterate a mechanical or mathematical mistake, the modification will be allowed. If, on the other hand, cerebration or research into the law or planetary excursions into facts is required, Rule 60(a) will not be available to salvage the government's blunders. Let it be clearly understood that Rule 60(a) is not a perpetual right to apply different legal rules or different factual analyses to a case. It is only mindless and mechanistic mistakes, minor shifting of facts, and no new additional legal perambulations which are reachable through Rule 60(a).â€
HELD: “Correction of the exact amount paid looks to be a matter of altering the payment to reflect the amount actually owed by the government. However, the burden of making this determination falls to the lower court in looking at the specific nature of the mistake made in the settlement of this case.†Matter of W. Texas Mktg. Corp., 12 F.3d 497, 505 (5th Cir. 1994)
Time for Making Motion
Since FRCP 60(a) provides that the District Court may correct clerical mistakes or errors in judgments, orders, or other parts of the record "at any time," there are no time limits within which a party must move for correction of a clerical mistake or error. United States v Kellogg (In re West Tex. Mktg. Corp.) (1994, CA5 Tex) 12 F3d 497 [since there is no deadline for bringing Rule 60(a) motion, government could file motion to correct error in calculation of interest on tax refund more than two years after refund was paid].
The District Court may correct clerical mistakes before an appeal is docketed in the Court of Appeals, but after the appeal is docketed, leave of the Court of Appeals is required. Rule 60(a) permits the District Court to correct a clerical error after the judgment is affirmed on appeal. Dura-Wood Treating Co. v Century Forest Indus. (1982, CA5 Tex) 694 F2d 112 [District Court could correct judgment under Rule 60(a) even after Court of Appeals affirmed decision and remanded for further proceedings consistent with its opinion; Rule 60(a) permits correction at any time and correction was not inconsistent with court's mandate].
Method for Making Motion
Unless made at a trial or hearing, other than a hearing on another motion, all motions must be reduced to writing or have their substance stated in a written notice of the hearing on the motion. The motion or notice of the hearing must state with particularity the grounds relied on, must set forth the relief or order sought, must be captioned, and must otherwise be in the form required of pleadings under the Federal Rules of Civil Procedure.
FRCP 60(a) does not require that notice be given when a motion is made to correct a clerical mistake or error in a judgment, order, or other part of the record. Instead, it is left to the court to determine whether notice should be given, and if so, what form of notice is appropriate. If notice is required, it should be given in the manner specified by the court.
If the routine practice in the district is to hold hearings on motions, a date and time should be set with the clerk or the judge's secretary, depending on local practice, at the time the motion is filed or shortly thereafter. If local rules have dispensed with hearings except on special request, counsel must request a hearing by a second motion, which must also be served and filed.
When a ruling is made on a motion, an order will be prepared by the court and entered on the docket. Counsel for all parties will be notified. It is, however, counsel's responsibility to ensure that the order is properly entered on the docket.
Ruling on Motion; Appealability
In applying FRCP 60(a), the courts must balance two competing concerns. On the one hand, equitable considerations require liberal interpretation of the rule to avoid miscarriages of justice. This liberality is tempered, however, by the need to construe Rule 60(a) narrowly to promote the finality of judgments and avoid the circumvention of more restrictive means to obtain review of District Court orders and judgments, such as FRCP 59(e), which requires that motions to alter or amend judgments be filed within 10 days of judgment. The District Courts have wide discretion in ruling on motions to correct clerical errors under Rule 60(a), and decisions on Rule 60(a) motions are reviewed only for abuse of discretion.
Because FRCP 60(a) is intended merely to correct clerical errors and reinstate the intent of the court at the time of the judgment, no additional proof should be necessary to support the motion.
Source: WEST LAW LEGAL RESEARCH"
"VRNG investors,
Are you sick and tired of Dan Ravicher telling you that Judge Jackson cannot and will not correct the jury's rather apparent computational error? Well, I certainly am. Just spent about 2 hours on West Law researching Rule 60(a) motion and learned that Ravicher is simply uninformed about Federal Rules of Civil Procedure. Feel free to critique and check my citations (not making this up!)
Disclaimer: This is not a buy rec..Do your own due diligence!!
Text of FRCP 60(a)
Rule 60. Relief from judgment or order
(a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave.
Relief under FRCP 60(a)
Under FRCP 60(a), “the court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record.†The rule provides for correction of clerical errors or oversights, and does not contemplate correction of substantive mistakes. American Trucking Assos. v Frisco Transp. Co. (1958) 358 US 133 (it is axiomatic that courts have both power and duty to correct judgments containing clerical errors or mistakes). “The basic distinction between ‘clerical mistakes' and mistakes that cannot be corrected pursuant to Rule 60(a) is that the former consist of ‘blunders in execution’ whereas the latter consist of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because on second thought it has decided to exercise its discretion in a manner different from the way it was exercised in the original determination.†Blanton v. Anzalone, 813 F.2d 1574, 1577 n. 2 (9th Cir.1987) In determining whether a motion should be considered a motion under Rule 60(a) or some other Rule, the court must look to the substance of the motion rather than its form. BBCA, Inc. v United States (1992, CA8 Minn), 113 S Ct 192 (although motion seeking to clarify that dismissal was with prejudice was denominated as motion under Rule 59(e), it came under Rule 60(a) because it merely sought to correct clerical mistake).
The scope of Rule 60(a) is very limited. In Dura–Wood Treating Co., Division of Roy O. Martin Lumber Co. v. Century Forest Industries, Inc., 694 F.2d 112 (5th Cir.1982), the court set out these limits:
Rule 60(a) finds application where the record makes apparent that the court intended one thing but by merely clerical mistake or oversight did another. Such a mistake must not be one of judgment or even of misidentification, but merely of recitation, of the sort that a clerk or amanuensis might commit, mechanical in nature.... (Citations omitted).
Thus, it is proper to use Rule 60(a) to correct a damages award that is incorrect because it is based on an erroneous mathematical computation, whether the error is made by the jury or by the court. Errors of a more substantial nature are to be corrected by a motion under Rule 59(e) or 60(b). Correction of an error of “substantive judgment,†therefore, is outside the reach of Rule 60(a). Hendrick v. Avent, 891 F.2d 583, 588 (5th Cir. 1990)
Although motions under FRCP 60(a) have largely replaced the use of nunc pro tunc orders to correct clerical errors, the use of such orders has not been expressly superseded. LeBeau v Taco Bell (1989, CA7 Ill) 892 F2d 605, 15 FR Serv 3d 436 [District Courts have inherent authority to enter nunc pro tunc orders to show what was actually done but not properly recorded].
Legal Standard
Courts must defer to the jury’s damages award if there is “any rational basis for the verdict.†Berger v. Zeghibe, 2010 WL 3928621, at (E.D. Pa. Oct. 6, 2010) (quoting Bhaya v. Westinghouse Elec. Corp., 832 F.2d 258, 259 (3d Cir. 1987)). A “court may not vacate or reduce the award merely because it would have granted a lesser amount of damages.†Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d Cir. 1989). The jury’s award is to be upheld “if there exists a reasonable basis to do so.†Id. (citing Nairn v. National Railroad Passenger Corp., 837 F.2d 565, 570 (2d Cir. 1988)).
However, if a court believes a jury’s award is unreasonable in light of the facts, it may remit the award. Cortez v. Trans Union, LLC, 617 F.3d 688, 716 (3d Cir. 2010). “A jury's award of damages can only be reduced to the highest dollar amount that the jury could have properly awarded.†Young v. Lukens Steel Co., 881 F. Supp. 962, 976 (E.D. Pa. 1992) In particular, “jury verdicts can be disturbed when they are subject to mathematical calculations and there is a clear error in the calculation.†Id. see also Maylie v. Nat’l Railroad Passenger Corp., 791 F. Supp. 477, 482 (E.D. Pa. 1992) (offering plaintiff opportunity to remit damages where the damages award was not supported by the evidence but instead it seemed “likely that the jury simply erred in its calculationâ€).
Widely-Cited Third Circuit Case: Matter of W. Texas Mktg. Corp.
“The relevant test for the applicability of Rule 60(a) is whether the change affects substantive rights of the parties and is therefore beyond the scope of Rule 60(a) or is instead a clerical error, a copying or computational mistake, which is correctable under the Rule. As long as the intentions of the parties are clearly defined and all the court need do is employ the judicial eraser to obliterate a mechanical or mathematical mistake, the modification will be allowed. If, on the other hand, cerebration or research into the law or planetary excursions into facts is required, Rule 60(a) will not be available to salvage the government's blunders. Let it be clearly understood that Rule 60(a) is not a perpetual right to apply different legal rules or different factual analyses to a case. It is only mindless and mechanistic mistakes, minor shifting of facts, and no new additional legal perambulations which are reachable through Rule 60(a).â€
HELD: “Correction of the exact amount paid looks to be a matter of altering the payment to reflect the amount actually owed by the government. However, the burden of making this determination falls to the lower court in looking at the specific nature of the mistake made in the settlement of this case.†Matter of W. Texas Mktg. Corp., 12 F.3d 497, 505 (5th Cir. 1994)
Time for Making Motion
Since FRCP 60(a) provides that the District Court may correct clerical mistakes or errors in judgments, orders, or other parts of the record "at any time," there are no time limits within which a party must move for correction of a clerical mistake or error. United States v Kellogg (In re West Tex. Mktg. Corp.) (1994, CA5 Tex) 12 F3d 497 [since there is no deadline for bringing Rule 60(a) motion, government could file motion to correct error in calculation of interest on tax refund more than two years after refund was paid].
The District Court may correct clerical mistakes before an appeal is docketed in the Court of Appeals, but after the appeal is docketed, leave of the Court of Appeals is required. Rule 60(a) permits the District Court to correct a clerical error after the judgment is affirmed on appeal. Dura-Wood Treating Co. v Century Forest Indus. (1982, CA5 Tex) 694 F2d 112 [District Court could correct judgment under Rule 60(a) even after Court of Appeals affirmed decision and remanded for further proceedings consistent with its opinion; Rule 60(a) permits correction at any time and correction was not inconsistent with court's mandate].
Method for Making Motion
Unless made at a trial or hearing, other than a hearing on another motion, all motions must be reduced to writing or have their substance stated in a written notice of the hearing on the motion. The motion or notice of the hearing must state with particularity the grounds relied on, must set forth the relief or order sought, must be captioned, and must otherwise be in the form required of pleadings under the Federal Rules of Civil Procedure.
FRCP 60(a) does not require that notice be given when a motion is made to correct a clerical mistake or error in a judgment, order, or other part of the record. Instead, it is left to the court to determine whether notice should be given, and if so, what form of notice is appropriate. If notice is required, it should be given in the manner specified by the court.
If the routine practice in the district is to hold hearings on motions, a date and time should be set with the clerk or the judge's secretary, depending on local practice, at the time the motion is filed or shortly thereafter. If local rules have dispensed with hearings except on special request, counsel must request a hearing by a second motion, which must also be served and filed.
When a ruling is made on a motion, an order will be prepared by the court and entered on the docket. Counsel for all parties will be notified. It is, however, counsel's responsibility to ensure that the order is properly entered on the docket.
Ruling on Motion; Appealability
In applying FRCP 60(a), the courts must balance two competing concerns. On the one hand, equitable considerations require liberal interpretation of the rule to avoid miscarriages of justice. This liberality is tempered, however, by the need to construe Rule 60(a) narrowly to promote the finality of judgments and avoid the circumvention of more restrictive means to obtain review of District Court orders and judgments, such as FRCP 59(e), which requires that motions to alter or amend judgments be filed within 10 days of judgment. The District Courts have wide discretion in ruling on motions to correct clerical errors under Rule 60(a), and decisions on Rule 60(a) motions are reviewed only for abuse of discretion.
Because FRCP 60(a) is intended merely to correct clerical errors and reinstate the intent of the court at the time of the judgment, no additional proof should be necessary to support the motion.
Source: WEST LAW LEGAL RESEARCH"
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