Shelly Albaum
Jul 17, 2018
In this Brief, Cooley called out Skadden for failing to comply with Local Rule 7-3, which requires that the parties meet and confer a week before filing most motions.
But we noticed another local rule that Skadden violated.
Briefs have to be double-spaced, but Local Rule 11-3.6.1 makes an exception for footnotes, which may be single-spaced. Here, read the Local Rule:
The local rule is extremely specific -- "single spaced." It doesn't say you can change the font type, or change the font size, or change the spacing to anything you want. It's crystal clear: "single spaced."
Now let's take a look at some of the actual footnotes in the Motion to Dismiss that Skadden filed last week:
Now anyone can tell that what we are seeing here is not "single spacing" because there is hardly any space at all -- the text in those footnnoes is jammed together vertically.
So what spacing did Skadden use for their footnotes instead of single spacing?
Here's how you can tell. Look closely at the jammed text in footnote 3, magnified below. Do you see where the citation and the case name are actually touching? The "y" reaches down into the "0;" the "g" in copyright touches the "W;" and the "6" touches the "g" in marketing?
Below I have reproduced footnote 3 at six different spacings -- 1.0, .95, .90, .85, .80, and .75.
Which one most closely matches what Skadden was using?
In order to get the top of the "6" to touch "mktg" we had to go all the way down to at least .80, or maybe even .75 or 3/4th spacing. That's not single-spacing -- it's way shy of it.
Now you are almost certainly thinking that I am petty for pointing this out, and that the spacing on footnotes does not matter.
But actually it matters a lot, because both sides have strict page limits for their briefs, which is how much argument you get.
Using smaller fonts, or smaller spacing in the text or the footnotes, is against the rules because it gives one side an unfair advantage.
The correct thing for Skadden to have done would have been to have filed a motion for relief from the page limit and asked to file one extra page, and of course offered ChromaDex the opportunity to file one extra page, too.
Judge Carney might or might not have granted that motion, but we'll never know, because Skadden granted themselves relief from the local rule's page limit by violating Local Rule 11-3.6.1 and squeezing their footnotes together with LESS than single-spacing. And since Skadden put a lot of text into their footnotes in this particular brief, the 3/4ths of a line eventually added up to enough so that they could speak a little longer than they were entitled.
Cooley would have noticed this, but apparently has bigger fish to fry. Plus, Cooley inadvertently violated the page limit rule themselves last year, and apologized for it.
Skadden handles that kind of thing differently, we see. Judge Carney is free to notice this, but most likely it will just be another lesson in character for those watching closely.