#seventh-amendment

#seventh-amendment

The threat of a cease-and-desist order, backed by civil penalties of up to $100,000 a day or twice the value of imported goods, is a powerful deterrent. For years, the process for enforcing these penalties has been a settled feature of ITC practice. But a recent Supreme Court decision, Jarkesy v. SEC, has introduced a new constitutional question that ITC litigators might want to watch out for.

Over the past couple of years, I have noticed increased willingness of the Federal Circuit to reject jury verdicts, especially in situations involving potentially inadequate expert testimony. This past summer, the Federal Circuit's en banc EcoFactor decision followed this pattern by overturning a $20 million jury verdict based upon flaws in the patentee's damages expert testimony.