- ALJ Pender Grants Motions for Default Judgment and To Stay Procedural Schedule and Denies Motion to Terminate In Certain Electronic Devices Having Placeshifting or Display Replication Functionality (337-TA-878)
- July 18, 2013 | Authors: Alexander B. Englehart; Eric W. Schweibenz
- Law Firm: Oblon, Spivak, McClelland, Maier & Neustadt, L.L.P. - Alexandria Office
On July 8, 2013, ALJ Thomas B. Pender issued Order No. 7 in Certain Electronic Devices Having Placeshifting or Display Replication Functionality and Products Containing Same (Inv. No. 337-TA-878). In the Order, ALJ Pender entered an Initial Determination (“ID”) granting Complainant Sling Media, Inc.’s (“Sling Media”) motion for default judgment against Respondent Monsoon Multimedia, Inc. (“Monsoon”). ALJ Pender also denied a motion by Monsoon to terminate the investigation as to Monsoon based on entry of a consent order. Separately, on July 10, 2013, ALJ Pender issued Order No. 8. In that Order, ALJ Pender granted Sling Media’s motion to stay the procedural schedule until such time that any Respondent affirmatively and/or actively participates in the investigation.
According to Order No. 7, on May 24, 2013, Sling Media moved for an order directing Monsoon to show cause why it should not be found in default for failing to respond to the complaint and notice of investigation or otherwise participate in the investigation. Sling Media also requested that upon failure to show cause, the ALJ should issue an ID finding Monsoon in default. On June 11, 2013, ALJ Pender ordered that, no later than June 26, 2013, Monsoon must show cause why it should not be held in default. On June 26, 2013, Monsoon filed a motion to terminate the investigation as to Monsoon based on entry of a consent order, but did not show cause why it should not be held in default.
In Order No. 7, ALJ Pender first denied Monsoon’s motion to terminate based on entry of a consent order. In particular, the ALJ found that the motion violated Ground Rule 5.1.2 because it did not provide the required certification that, at least 2 business days prior to filing the motion, Monsoon informed the other parties of its intent to file the motion and made reasonable, good-faith efforts to contact the other parties and resolve the matter. In reaching this conclusion, the ALJ rejected Monsoon’s argument that Ground Rule 5.1.2 was inconsistent with Commission Rule 210.21(a)(2). In addition, the ALJ noted that there were at least three substantive flaws with Monsoon’s proposed consent order: (1) it contained an improper and ambiguous limitation to only “accused products;” (2) it failed to admit to subject matter jurisdiction; and (3) it failed to comply with Commission Rule 210.21(c)(3)(C).
After denying Monsoon’s motion to terminate, ALJ Pender proceeded to enter an ID finding that Monsoon is in default for failure to respond to the complaint and notice of investigation and failure to show good cause why it should not be found in default. In particular, the ALJ found that Monsoon’s defective proposed consent order was ineffective to constitute good cause or otherwise serve as an excuse for not responding to the order to show cause. Accordingly, ALJ Pender found that Monsoon had waived its right to appear, to be served with any further documents, and to contest the allegations at issue in the investigation.
According to Order No. 8, Sling Media filed a motion to stay the procedural schedule until such time that any Respondent affirmatively and/or actively participates in the investigation. Sling Media argued that a stay of the procedural schedule would preserve judicial resources (and Sling Media’s resources) and would cause no prejudice to any party to the investigation. No responses to the motion were received.
In Order No. 8, ALJ Pender noted that Respondent Belkin International, Inc. was terminated from the investigation on July 5, 2013. The ALJ further noted that Monsoon had been held in default on July 8, 2013 pursuant to Order No. 7. Lastly, the ALJ noted that Sling Media had filed a motion for an order to show cause and for default judgment against Respondent C2 Microsystems, Inc. (“C2”) on June 28, 2013, and that C2 had not responded to that motion. Accordingly, ALJ Pender granted Sling Media’s motion and ordered that the procedural schedule in the investigation be stayed until such time that a Respondent actively participates in the investigation.