A Perhaps Small Matter — But KGaA Will Be Required To Update The 2017 Financial Data In The Lanham Act Case, Already Produced — Even As Mediation Is Unfolding.

This — in broad strokes — will define the largest component of potential damages, in this clearly multi-billion dollar suit about word-mark and trademark infringement, under the Lanham Act. Current financial metrics (specific to franchises, and geographies) from the German Merck are the raw inputs, that allow a calculation of the extent of the damages, US Merck may well have suffered. It hardly makes sense to even discuss “mediation” — if one cannot get a current handle on the size of the agreed / mediated payments. So it goes. [We did mention this specifically, before.]

In any event, here’s that latest three pager of well-grounded argument by US Merck’s able counsel, and bit:

…KGaA’s motive to rewrite Rule 26(e) is transparent: it wants to avoid more damages. But shifting blame to Merck for not requesting this update sooner is no excuse. As explained (Br. 3), Merck’s 2017 document request already asked for this data. Merck need not repeat that ask — Rule 26(e) already obligated KGaA to update its response. The Court’s recent decision to keep disgorgement in the case (ECF No. 302 at 11-12) is all the more reason to address this now. And even if Merck had moved earlier, KGaA would still need to bring its financial data current for trial….

Thomas & Betts forecloses KGaA’s arguments. Updated financials did not “reopen” discovery (Br. 8), nor was all discovery revisited as a result. KGaA now distinguishes Thomas & Betts as limited to past infringement with ongoing harm. Opp. 7–8. But it was the continued use of trade secrets there that required updated financials, not just a one-time misappropriation. Thomas & Betts, 2010 WL 2400151, at *3–4. In any event, disgorgement does not parse between KGaA’s profits for past and continued infringement. Both inflict ongoing harm. Br. 6. KGaA cannot avoid the straightforward application of Rule 26(e) to its financial records.

The text of Rule 26(e), this Court’s precedent, and the common practice of updating financial information before trial all compel supplementation….

Now you know. Onward, grinning — heading toward tomorrow night’s world premiere.

नमस्ते