Biglaw Partner Could Get Supreme Spanking For Bizarre Filing

What was this partner thinking when he filed this off-the-wall petition with the Supreme Court?

On Monday, the U.S. Supreme Court denied certiorari in the case of Sigram Schindler Beteiligungsgesellschaft MBH v. Lee (aka “thank God for copy/paste”). No big deal; SCOTUS denies the vast majority of cases that people want it to hear.

But the Court simultaneously issued a very unusual order in connection with the case (via Josh Blackman):

Howard Neil Shipley, of Washington, D.C., is ordered to show cause, within 40 days, why he should not be sanctioned for his conduct as a member of the Bar of this Court in connection with the petition for a writ of certiorari in No. 14-424, Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.

This caught the eye of one ATL tipster, who asked us at the time: “Wutupwithdat? This Shipley’s a serious-looking sort from a respectable firm [Foley & Lardner]. I pulled the petition, which is way above my pay grade, but I didn’t see anything immediately amiss.”

My eyes tend to glaze over regarding IP stuff too, but closer scrutiny might have revealed the petition’s problems. Yesterday, in a story for the Legal Times, Tony Mauro explored possible reasons for the Court’s displeasure with Shipley:

The petition, posted online Monday night by blogger Josh Blackman, is unorthodox in style, replete with technical jargon, acronyms and unusual typography. For example, the “question presented,” the first opportunity for a petitioner to get the court’s attention, reads this way:

Does the US Constitution, in legal decisions based on 35 USC §§ 101/102/103/112, • require instantly avoiding the inevitable legal errors in construing incomplete and vague classical claim constructions – especially for “emerging technology claim(ed invention)s, ET CIs”—by construing for them the complete/concise refined claim constructions of the Supreme Court’s KSR/Bilski/Mayo/Myriad/Biosig/Alice line of unanimous precedents framework, or does the US Constitution for such decisions • entitle any public institution to refrain, for ET CIs, for a time it feels feasible, from proceeding as these Supreme Court precedents require—or meeting its requirements just by some lip-service—and in the meantime to construe incomplete classical claim constructions, notwithstanding their implied legal errors?

If reading the case caption didn’t give you a headache, surely you have one now. One ATL reader wondered — based on that gobbledygook, which reads like the rantings of an unhinged pro se litigant — whether Shipley might have a mental-health issue.

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Back to Mauro:

The court clerk’s guide to lawyers preparing for oral argument urges them “not to use the ‘lingo’ of a business or activity. The court may not be familiar with such terms, even if widely understood within that business or activity.”

It is possible that the court’s displeasure was triggered by a footnote on page 37, the final page of Shipley’s petition. It states, “Prof. Sigram Schindler, the primary inventor of the ’453 patent, should be recognized for significant contributions to this petition.” In other cases involving the German high-tech firm, Schindler is described as a computer sciences professor at the Technical University of Berlin.

The clerk’s published guide for lawyers preparing petitions states on page 2, “Names of non-lawyers such as research assistants, law students, and advisors may not appear on the cover [of the petition] under any circumstances; nor are they to be credited with having contributed to the preparation of the petition either in the text, in a footnote, or at the conclusion of the petition.”

That footnote suggests one possible explanation here: Professor Schindler drafted most or all of this bizarre brief, acting much like a pro se litigant, and Howard Shipley, a member of the Supreme Court bar, lent his name to the filing. In other words, perhaps Shipley just rubber-stamped the wacky rantings of Professor Schindler, thinking of himself almost like “local counsel” for his client: the client did the heavy lifting (or weird ranting), and Shipley performed the ministerial task of filing. (Shipley’s law firm, Foley & Lardner, did not respond to requests for comment from us and from the Legal Times.)

Considering the thousands of cert petitions that the Supreme Court receives and summarily dismisses, maybe Shipley thought he could quietly file this turd for his client, make the client happy, and collect some legal fees for minimal effort. And maybe he would have gotten away with it, too — if not for that meddling Justice Alito!

Justice Alito famously stays out of the cert pool, and sometimes he and his clerks catch things about petitions that the pool participants miss. As one former SCOTUS clerk suggested to me, “99 percent chance that this [idea to issue an OSC] originated in the SAA [Alito] chambers. No pool-memo clerk would ever bother” to draw this to the attention of the justices.

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That theory makes sense in light of the chronology too. The petition was probably going to be denied sooner but actually got relisted. Usually a case gets relisted because the Court needs more time to think about the substantive legal issues presented and whether it wants to tackle them. In this situation, however, perhaps the case got relisted because the justices wanted more time to discuss whether to take the unusual step of issuing an order to show cause (i.e., an order requiring Shipley to explain to the Court why he shouldn’t be benchslapped).

Contrary to what some members of the public think, getting into the Supreme Court bar is not that hard; you just have to know some existing members, be in good standing in some other jurisdiction, and pay a fee. But Howard Shipley might be about to learn how easy it is to get tossed out of it.

Foley Partner Faces Possible High-Court Discipline Over Cert Petition [Legal Times via Morning Docket]
SCOTUS Denies Cert Petition, Then Orders Lawyer Who FIled Petition to Show Cause [Josh Blackman’s Blog]
Sigram Schindler Schindler Beteiligungsgesellschaft MBH v. Lee: Petition for a Writ of Certiorari [Supreme Court of the United States via Josh Blackman]