• May 2, 2012

All sophisticated businesses, litigants, and litigators, know that litigation, more often than not, is an extremely costly and inefficient problem-solving procedure, often far more fun to threaten than to actually participate in.  (Some cases highlighted last week seemed to make that point quite clearly (here and here)).

That said, when an adversary threatens litigation, this can trigger a race to the courthouse as each side hopes very much NOT to litigate but, in the event of litigation, would like to do so in a convenient forum.

What happens, then, when each side promises to “hold their fire” and one of the sides goes back on the deal and runs to court where it supposedly promised not to?  Can the other side dismiss the cad’s case?


Not in Minnesota.

As U.S. District Court Judge Ann D. Montgomery (D. Minn.) held last week in a lawsuit brought by 3M here in Minnesota in response to a preemptive suit by Lichtensteinian German patent holder Ivoclar Vivadent AG in Germany, the remedy for a breach of a “temporary covenant not to sue” is limited to “money damages,” not dismissal of the jumpy adversary’s case.

On that basis, Judge Montgomery denied Ivoclar’s motion to dismiss.  To the extent that 3M’s Minnesota action was inconsistent with any agreement with Ivoclar regarding when and where their case would be litigated, Ivoclar’s remedy would be money damages (however those might be calculated (?)) and not dismissal of 3M’s Minnesota lawsuit.

Wilkommen, Ivoclar. Genießen Sie Ihren Besuch im Bundesstaat Minnesota und wir wollen hoffen, die besten geistigen Eigentumsrechte zu gewinnen!

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