Eko Brands, LLC, v. Adrian Riviera Maynez Enterprises, Inc. et al. (Order Awarding Prejudgment Interest, June 14, 2018)

Let’s briefly discuss bonds… so that we can then discuss sovereign debt issued by Argentina*, so that we can turn our ultimate attention to the Western District of Washington.

In exchange for immediate access to cash, a bond-issuer typically promises to return that cash amount at some future specified date, and agrees to provide some additional stream of cash to compensate the lender for the loan.

The date when the borrowed cash is returned is called the bond’s “maturity.”

The stream of cash that forms compensation informs a bond’s “yield.”

For example, if I lend an old college roommate $100 for 10 years, and the ex-roommate agrees to pay me $6 each year on the anniversary of our agreement, the bond is said to have a 10-year maturity and is said to “yield 6%” (i.e., $6/$100 = 6%).

Bonds can be bought & sold on the open market. Using our prior example, let’s say that upon making my $100 loan for 10 years, I immediately turn around and sell the obligation to you for $105.  Now, you have paid $105 for the annual $6 anniversary payment from my ex-roommate, and you can be understood to have purchased a bond yielding $6/$105 = 5.7142857%.

This example demonstrates the seesaw relationship between bond prices & yield, and the oft-encountered maxim, “Rising bond prices = lower yields.”

(The counter is also true: “Falling bond prices = higher yields.”)

Presumably, those who would lend money to a borrower will take care to demand a rate of interest/return commensurate with the associated risk.  To continue with our example, if I lent my ex-roommate $100 at 6% 20 years ago when we were college roommates, and said-roommate never paid me back, when said-roommate comes to me again looking for another $100 loan, I will reasonably include prior experience with failure-to-pay in assessment of risk of any further loan.

Perhaps now I will insist on $15 per year, for an effective yield of 15%.

This is the relationship between assessed risk and rate of interest/return/yield:  the higher the former, so commensurately high should be the latter.

Countries also issue (sovereign) debt.  For example, the U.S. Treasury as of June 28, 2018 has issued $21,149,679,487,479.03… or “just over” $21 trillion (to the extent that $149 billion is worthy of rounding…).

Other countries issue debt, too: for example, Argentina!

Argentina is an interesting case, because successive governments there have issued debt, but then failed periodically to pay it back (like our college roommate example above).  The history is complicated, and we will not belabor you with details beyond observing that Argentina has defaulted on its external debt (and its internal debt) multiple times throughout its 200 year history, including in 2001, when it defaulted on +$100 billion in what was then the largest sovereign default in history.

Which made it all the more surprising 1 year ago when Argentina successfully issued $2.75 billion in bonds with a maturity of 100 years (a.k.a., “century bonds”).  Which is to say that if you participated in that issuance, you were extremely unlikely ever personally to receive back upon maturity the sum of money you originally lent.  Because you’ll likely have been dead for decades – so sorry – when the debt matures.

What was the yield demanded by lenders of this 100-year bond issuance from a party that has demonstrated periodic incapacity/unwillingness to make good on its debt obligations? About 7.9%.  So, while you are not likely to be around when the debt comes due, at least as a participant you enjoy the promise of a stream of payments worth 7.9%, and that ain’t nothin’.

But alas now (exactly one year later today!), Argentina’s economy is in trouble… again.

And the prospects of timely payment are being drawn into question… again.

And the price of those 100 year bonds is falling in the open market, because investors familiar with the country’s credit history observe its immediate prospects.

And as the price for those bonds falls in the open market, the seesaw of their effective yield is on the rise… approaching 10%.

If you are comfortable with the certainty that Argentina, despite its history of relatively recent (and spectacularly large) default, will pay you back in (now) 99 years, you can enjoy a yield of over 9%!

And that might seem attractive, perhaps especially so in a low-rate world where the 30-year Treasury bond from Uncle Sam yields a paltry ~3.0%.

But you need to ask yourself, “Is the yield commensurate with the risk?”

Which brings A2C back to its park bench with the pigeons….

A recent order from the Western District of Washington caught our attention. Why?

Because….

“12 percent?!”

Let’s quickly verify the math…

12% Annual Rate X $66,087.76 = $7,930.53 for an entire year.

132 days/365 days = ~36.1643836% of the year.

$7,930.53 X 36.161643836% = $2,868.027 = $2,868.03.

$2,868.03 + $66,087.76 = $68,955.79.

The math is impeccable! Kudos!

Here’s the thing….

In a world where the effective yield on a serial sovereign defaulter’s 99-year bond remains under 10%, we are hard-pressed to defend on an economic or financial basis 12% statutory rates for prejudgment interest.

* Had Argentina failed to advance to the Round of 16 at the World Cup, A2C would not have piled on needlessly. Instead, we could have used the corporate bonds from some struggling retail chains, such as 99 Cents Store yielding ~11.8% (CUSIP: 65440KAB2), or JC Penny yielding ~11.9% (CUSIP: 708130AC3).  Some small distressed energy concerns also have corporate bonds out there with effective yields approaching 12%.

Howmedica Osteonics Corp., v. Zimmer, Inc., Centerpulse Orthopedics, Inc. (Opinion May 23, 2018)

If you set aside a park bench for all those people on planet Earth who are utterly fascinated by the topic of prejudgment interest, the authors of A2C – together & alone – would share a quiet lunch, discussing PJI while tossing crumbs to the pigeons.

In that spirit, we report that Senior District Judge Walls from the District of New Jersey recently offered an opinion granting attorneys’ fees & costs, but no prejudgment interest, in a case of alleged infringement brought way back in 2005. In support of the decision, Judge Walls observes:

Judge Walls notes that the attorneys’ fees were reasonable except for those “hours billed due to inexperience, hours billed for tasks that should have been performed by more cost-effective actors, and hours and tasks that took an excessive amount of time to complete.”  Included in the opinion, but not replicated here, are details regarding hourly billing.*

As for prejudgment interest, however, Judge Walls provided the following justification for not granting the request:

We sit on our bench feeding pigeons, while struggling mightily to understand the economic logic of this decision.  Specifically, Judge Walls finds that there was deceit by the plaintiff over the course of a decade; and that attorneys’ fees are correspondingly justified… but there is no basis for affording the defendant the benefit of any compensation related to the time-value of its money?

Within the confines of the courtroom, this may make sense.

From the purview of our park bench, it is incoherent to us (and the pigeons).

From the opinion, it appears that prejudgment interest is just one in the line of many additional ways to exact money.  What appears to have been lost is that if the money was rightfully remitted by the losing party, then the time value of that money should also be considered.   If Judge Walls is operating with some conceptual economic cap to compensation (and below we provide evidence to suggest the possibility of such conceptual caps), the attorneys’ fees should arguably have been reduced, and then been adjusted for the time value of money to arrive at roughly the same monetary compensation.

* An interesting side-item from Judge Walls: despite what we would have assumed to be a relatively efficient market for legal services, an economic cap evidently exists on the professional value available from attorneys of $900/hour.

Columbia Sportswear North America, Inc. v. Seirus Innovative Accessories, Inc. (Opinion April 17, 2018)

In yet another case, a judge has ruled that an appropriate prejudgment interest rate is the California statutory rate of 7%.

The case in question involved a design patent and an apparatus patent.  A jury found the apparatus patent invalid; however, it found the design patent infringed, and those claims not invalid.  As a result, the jury awarded the infringer’s profits to the plaintiff, Columbia Sportswear.

After trial and after judgment was rendered, Columbia Sportswear requested the California 7% statutory rate as prejudgment interest, as well as supplemental lost profits.  Judge Marco Hernandez from the Southern District of California awarded both, despite defendant Seirus’ arguments that awarding seven percent interest on top of profits would deprive it of more than it originally earned. The justification for the amount was as follows:

“Prejudgment interest removes the incentive to live off of the profits until caught.” This elegant formulation enjoys enormous economic and judicial leverage.

There is, however, a flip-side….

Court’s recourse to a 7% statutory rate set decades ago divorces compensation from the facts of a case, relies on a rate detached from current financial and economic reality, and we would argue is inappropriate for most awards.

Lawrence E. Tannas v. Multichip Display, Inc., et al. (Decided February 21, 2018)

Judge Guilford of the Central District of California issued an opinion regarding damages, fees and prejudgment interest in this patent infringement case.

Neither plaintiff nor defendants used damages experts, and the court decided that, “Plaintiff essentially relies on attorney argument with minimal analysis” which renders its proffered damages award unsupported.  The court specifically notes that even if attorneys want to argue that an established royalty rate exists, they must provide sufficient proof for that rate.  In this case, the court held that the plaintiff failed to do that.

A second opinion, regarding legal fees, quotes both former Justice O’Connor and current Justice Kagan when concluding that the fixed sum of $250,000 is reasonable considering “what is happening in the legal profession as hourly billing has become increasingly unpopular and clients prefer to look at aggregate, global numbers”:

Finally, the plaintiff requested statutory prejudgment interest of 7%, compounded quarterly. After finding apparent fault with plaintiff’s lack of basis for its preferred quarterly-compounded 7% rate, the court instead decided that 5% without compounding was the appropriate rate.

Trustees Of Boston University v. Everlight Electronics Co. (CAFC oral argument 12/8/17)

This case was originally filed in 2012 in Massachusetts.  The case went to trial and BU won on infringement and validity, with the jury awarding damages in the form of a fully paid-up lump sum.  On the jury verdict form, the jury chose a one-time payment for the life of the patent, as opposed to a running royalty rate based on sales.

The interesting question for damages came in post-judgment motions, when BU asked for prejudgment interest. BU argued such interest should accrue from the date of the hypothetical negotiation (i.e., January 2000), rather than from the point in time six to twelve years (for the three defendants) later, when notice occurred and damages began to accrue.

In her opinion, Judge Saris explained that since damages could not accrue until after the hypothetical negotiation, prejudgment interest could also not accrue until notice occurred.  Her conclusion was based largely upon BU’s lack of supporting case law:

On December 8, 2017, the CAFC heard oral arguments on the issue (N.b., the relevant argument begins at 29 minutes & 30 seconds into the recording available below).  The prejudgment interest case discussed was Gen. Motors Corp. v. Devex Corp., 461 U.S. 648, 655 (1983).  Counsel for BU argued that the case supports the notion that lump-sum damages awarded by a jury should accrue interest from the hypothetical negotiation.  It will be interesting to read the Court’s eventual opinion on this specific issue.