BROWN AND BROWN v. BLUMENTHAL

Citation Codes

Equivalent Citations

citation codes

Docket Number

(SC 18334)

Attorney(S)

Michelle H. Seagull, with whom were William M. Rubenstein and Kelly A. Burns, for the appellant (plaintiff in the first case, defendant in the second case). Matthew J. Budzik, assistant attorney general, with whom were Michael E. Cole, assistant attorney general, and, on the brief, Arnold B. Feigin, assistant attorney general, for the appellee (defendant in the first case, plaintiff in the second case). Aaron S. Bayer, Robert M. Langer, Michael Menapace and Alison M. Weir filed a brief for the Connecticut Business and Industry Association, Inc., et al., as amici curiae. James Sicilian, Jason S. Weathers, Ben Robbins, Martin J. Newhouse and Jo Ann Shotwell Kaplan filed a brief for the New England Legal Foundation as amicus curiae.

Acts

See more information ...

Smart Summary

Please sign up to generate summary.

BROWN AND BROWN, INC. v. RICHARD BLUMENTHAL, ATTORNEY GENERAL, RICHARD BLUMENTHAL, ATTORNEY GENERAL

MEMORANDUM OPINION

ROBERT E. PAYNE, Senior District Judge.

This matter is before the Court on the Defendants' MOTION FOR SUMMARY JUDGMENT OF NO WILLFUL INFRINGEMENT AND NO PRE-SUIT DAMAGES (Docket No. 314). For the reasons set forth below, the motion is granted to the extent that it seeks to limit pre-suit damages and denied as moot to the extent that it seeks summary judgment for no willful infringement.

BACKGROUND

The Plaintiff, WiAV Solutions LLC ("WiAV") asserts a claim against the Defendants, Motorola, Inc., Nokia, Inc. and Nokia Corp. (collectively "the Defendants") for infringement of U.S. Patent No. 6,539,205 (the "Patent"). As part of that claim, WiAV seeks to recover damages resulting from past infringement of the Patent. The Defendants bring this motion for summary judgment to bar pre-suit damages. The following facts are relevant to the motion.

WiAV also brought a claim for willful infringement of the Patent and the Defendants moved for summary judgment to dismiss that claim. Since the filing of the Defendants motion, the parties have stipulated dismissal of the willful infringement claim. (See Docket No. 320). Thus, the Defendant's motion, to the extent it seeks summary judgment for no willful infringement, is denied as moot.

WiAV is not pursuing pre-suit damages that accrued from December 31, 2007 until July 14, 2009, the date the complaint was filed. It seeks damages only from July 14, 2003 until December 31, 2007 and after the filing of the Complaint on July 14, 2009. (Pl. Opp. at 1 n. 2.)

The Patent improves communication quality by providing a method for monitoring the quality of a traffic channel and modifying transmission coding in response to the quality. These steps are called "link adaptation." (Pl. Opp. at 3.) WiAV alleges that in implementing the EDGE and WCDMA-HSDPA standards, certain of the Defendants' cell phones infringe the Patent. (Def. Mem. at 2; Pl. Opp. at 2.)

The pending patent rights were assigned to Skyworks on November 5, 2002 as part of a merger. (Def. Mem. at 3.) The Patent was issued on March 25, 2003. (Id.) WiAV purchased the Patent from Skyworks on December 31, 2007. (Id.) At that time, and later, several companies were granted licenses to practice the Patent.

I. Skyworks Solutions

From the time the Patent was issued on March 25, 2003 until December 31, 2007, when Skyworks sold the Patent to WiAV, Skyworks was authorized by ownership to practice the Patent. When WiAV purchased the Patent on December 31, 2007, WiAV granted Skyworks a license to practice the Patent. (Def. Mem. at 3.)

Beginning in September 2005, Skyworks offered for sale the SKY832 Baseband Processor for Multiband GSM, GPRS, and EDGE applications. (Def. Ex. 27 at 30:20-31:8.) The SKY832 baseband chip was part of a platform called LYNX L9100. (Def. Ex. 28.) The mark "LYNX" was a registered trademark for use in "[r]adio frequency and baseband wireless communications equipment, namely, . . . signal processors, namely baseband processors, . . . cellular and telephone handsets . . . baseband wireless equipment . . . and communications software for use in operating wireless communication equipment." (Def. Ex. 51.) As part of the trademark registration process, Deanna Brown, Corporate Legal Counsel for Skyworks declared that Skyworks "is using or is using through a related company or licensee the mark in commerce on or in connection with all goods and/or services listed." (Id.)

II. Mindspeed Technologies

At the time WiAV bought the Patent from Skyworks, WiAV was notified that Mindspeed Technologies, Inc. ("Mindspeed") had a license to practice the Patent. (Def. Ex. 5 at WIAV0000146.) Before WiAV purchased the Patent, Mindspeed sold a series of products capable of supporting the AMR Codec for EDGE. (Def. Ex. 19 at 12:24-14:10.) Those products include Mindspeed's M82501, M82505, M82506, M82510, M82511, M82514, M82515, M82520, M82524, M82530, M82610, M82710, M82910, M82803, M82805, M82810, M82815 and M82820. (Def. Ex. 20.) The Mindspeed products are processors or chips used in infrastructure equipment. (Pl. Ex. 5 at 6; Pl. Ex. 6 at 5.)

III. LG

On November 13, 2007, LG Electronics, Ltd. ("LG") entered into an agreement with WiAV, whereby it was granted a portfolio license to WiAV patents already, or subsequently, acquired from Skyworks. (Def. Ex. 30 at § 2(c).) Thus, when WiAV acquired the rights to the Patent on December 31, 2007, LG obtained a license to the Patent. (Def. Ex. 30 at § 2(c); Def. Ex. 9 at 119:17-20.) Since that time, LG has been making products under its license that implement the AMR codec. (Def. Ex. 9 at 120:3-9.) LG is not obligated to mark any of its products under its agreement with WiAV. (Def. Ex. 14 at 11.) And, LG has not marked the Patent on any products. (Def. Ex. 31. at 10.)

IV. Research in Motion

Research in Motion ("RIM") has a license to the Patent. (Def. Ex. 14 at 9.) The licensing agreement was entered into, and became effective, on June 1, 2009. (Def. Ex. 32 at WIAV0000074, WIAV0000083-84.) Under the licensing agreement between WiAV and RIM, RIM is not obligated to mark any of its products supporting the EDGE AMR Codec or HSDPA with the Patent. (Def. Ex. 9 at 184:19-185:3.) And, RIM has not marked any of its Blackberry products with the Patent. (Def. Ex. 31 at 10.)

V. Apple

Apple has a license to the Patent. (Def. Ex. 36; Def. Ex. 14 at 10.) The license agreement is dated December 29, 2008. (Def. Ex. 36 at WIAV0000167.) Under the agreement, Apple is not required to mark any of its products with the Patent. (Def. Ex. 14 at 10; Def. Ex. 9 at 180:22-181:4.) Apple has not marked any of its products, including the iPhone 3G, with the Patent. (Def. Ex. 31 at 10.)

VI. HTC Corporation

HTC Corporation ("HTC") has a license to the Patent. (Def. Ex. 37; Def. Ex. 9 at 158:10-12, 162:4-6) The effective date of the license agreement between WiAV and HTC is June 29, 2009. (Def. Ex. 37 at WiAV0000203, WIAV0000226.) HTC is not obligated to mark any of its mobile phones with the Patent. (Def. Ex. 9 at 181:11-22.) And, HTC has sold products that support the EDGE AMR Codec and HSDPA without marking them with the Patent. (Def. Ex. 31 at 10.)

DISCUSSION I. Standard of Review

Summary judgment is appropriate where there is no genuine issue as to any material fact in the case. See FED. R. CIV. P. 56(c). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A material fact in dispute appears when its existence or non-existence could lead a jury to different outcomes. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists when there is sufficient evidence on which a reasonable jury could return a verdict in favor of the non-moving party. See id.

Hence, summary judgment is only appropriate when, after discovery, the non-moving party has failed to make a "showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When a motion for summary judgment is made, the evidence presented must always be taken in the light most favorable to the non-moving party. Ethicon Endo-Surgery, Inc. v. U.S. Surgical Corp., 149 F.3d 1309, 1315 (Fed. Cir. 1998).

Nevertheless, a party cannot create a genuine issue of material fact through unsupported opinions. See Davis v. Brouse McDowell, L.P.A., 596 F.3d 1355, 1364 (Fed. Cir. 2010). Accordingly, the party who bears the burden of proof at trial cannot survive summary judgment without sufficient evidence to sustain his or her burden of proof on that point. Celotex Corp., 477 U.S. at 327.

II. The Marking Statute

The Patent Act encourages patentees and persons making, selling, or offering for sale a patented article in the United States, or importing a patented article into the United States, to give notice of the patent to the public by fixing the patent number on the patented article or packaging. 35 U.S.C. § 287(a). When there is a failure to mark a patented article "no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice." 35 U.S.C. § 287(a).

The patentee bears the burden of showing compliance with the marking statute by a preponderance of the evidence. Nike, Inc. v. Wal-Mart Stores, Inc., 138 F.3d 1437, 1446 (Fed. Cir. 1998). Where "the nonmovant bears the burden of proof . . . the movant need not `produce evidence' showing the absence of a genuine issue of material fact in order to properly support its summary judgment motion." Exigent Tech., Inc. v. Atrana Solutions, Inc. 442 F.3d 1301, 1307-08 (Fed. Cir. 2006) (citing Celotex, 477 U.S. at 325).

III. Application of the Marking Statute

A. The Undisputed Failures to Mark

Here, there are four identified licensees, other than Mindspeed and Skyworks, who were authorized to practice the Patent. LG obtained a license to the Patent on December 31, 2007. (Def. Ex. 30 at § 2(c); Def. Ex. 9 at 119:17-20.) RIM received a license to the Patent on June 1, 2009. (Pl. Ex. 32 at WIAV0000074, WIAV0000083-84.) Apple's license to the Patent became effective on December 29, 2008. (Def. Ex. 36 at WIAV0000167.) Finally, HTC's received a license on June 29, 2009. (Def. Ex. 37 at

WIAV0000203, WIAV0000226.) It is undisputed that none of these companies were obligated to mark their products with the Patent prior to obtaining a license and that none of them did in fact mark their products. Thus, beginning on December 31, 2007, patented articles were undoubtedly made, sold or offered for sale without being marked.

Because it is undisputed that covered products were sold by these four licensees, WiAV excludes from its request for damages the time period from December 31, 2007, the date the first licensing agreement became effective, until July 14, 2009, the date that actual notice of infringement was given through the filing of the Complaint in this action.

B. Triggering the Marking Statute

While WiAV concedes, as it must, that LG, RIM, Apple and HTC sold unmarked products, WiAV asserts that the alleged sales or offers for sale by Mindspeed and Skyworks did not trigger the requirement to mark under the statute. (Pl. Opp. at 8.) And, if the requirement to mark is not triggered, says WiAV, the failure to mark does not result in a bar to pre-suit damages from July 14, 2003 through December 31, 2007. As a threshold matter, the Court must determine whether under the marking statute a patent holder is permitted to parse the damages period in the manner suggested by WiAV.

Statutory interpretation begins with the plain language of the statute. Jiminez v. Quarterman, 129 S.Ct. 681, 685 (2009). The "preeminent canon of statutory interpretation requires [courts] to `presume that the legislature says in a statute what it means and means in a statute what it says there.'" BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (citing Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-54 (2002)). When there is no ambiguity in a statute, it must be enforced according to its terms. Jiminez, 129 S.Ct. at 685.

35 U.S.C. § 287(a) states:

Patentees, and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word "patent" or the abbreviation "pat.", together with the number of the patent, or when, from the character of the article, this cannot be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice. In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.

Thus, § 287 encourages a patent holder to give constructive notice by marking. Giving such notice allows patentees to collect damages for infringement. If a patentee fails to mark, no damages can be collected until actual notice is given, generally through the filing of a complaint.

The Defendants assert that the plain language of the statute means what it says: no damages can be recovered, even those that accrued before a requirement to mark was triggered. Indeed, the Defendants argue that WiAV's position, in essence, would make the statute read: "no damages shall be recovered by the patentee in any action for infringement during the period in which there is a failure to mark, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice." The argument, however, ignores the statutory context in which the provision precluding damages appears because the language "[i]n the event of failure so to mark . . ." doesn't define the period of time covered by the statute. Thus, the statute gives rise to some ambiguity on that point.

In Tulip Comp. Int'l B.V. v. Dell Comp. Corp., 2003 U.S. Dist. LEXIS 5409, at *54 (D. Del. Feb. 4, 2003), the court considered what damages could be awarded the patentee when there were three distinct time periods at issue: (1) a period during which the requirements of § 287 were not triggered; (2) a period during which the patentee failed to mark, even though required by § 287; and (3) a period after which § 287 no longer precluded damages because actual notice of infringement had been given. The Court held that the language and purpose of the marking statute compelled the conclusion that a patentee can recover damages for infringement during a period of time when § 287 is not triggered, even if § 287 is later triggered and the patentee fails to comply. Id. at *56-7.

In so holding, the court noted that the Federal Circuit has identified three purposes of the marking statute: (1) helping to avoid innocent infringement; (2) encouraging patentees to give notice to the public that the article is patented; and (3) aiding the public to identify whether an article is patented. Id. at *58 (citing Nike, 138 F.3d at 1443). The court went on to explain that the marking statute does not protect all innocent infringers but only those who innocently infringe because a patentee puts unmarked products into the marketplace. Tulip, 2003 U.S. Dist. LEXIS 5409, at *59. "In other words," said the court, "it is only when the patentee is himself contributing to the problem of innocent infringement by producing unmarked product that § 287(a) punishes that patentee by precluding damage recovery." Id. at 59-60. And, under that logic, it follows that a patentee who is not required to mark is not contributing to the problem of innocent infringement, and thus, should not be punished through the preclusion of damages.

The Defendants take a different view of the effect of the purposes of the statute on this issue. They assert that allowing the patentee to choose the periods during which it wants to provide notice and then allowing it to exclude those periods during which notice was not given for purposes of damages simply renders the statute ineffective at achieving its principal purpose: to provide notice. The Defendants argument, however, presumes that the patentee was required to, but chose not to, mark its products. In that case, the patentee should be precluded from collecting damages until actual notice is given and should not be allowed to parse time periods to avoid the consequences of its failure to comply with the marking statute.

Here, however, enforcing the statute as the Defendants read it penalizes the patentee for failing to comply with a statute that the patentee was not required to comply with in the first place. And, it is simply unreasonable to read the statute in this manner. Therefore, the Court holds that a patentee is not precluded from collecting damages for a period in which marking was not required even if the requirements of the marking statute were later triggered and the patentee failed to comply. This conclusion is most consistent with the purpose of the statute.

Having concluded that a patentee is permitted to collect damages for a period during which the marking statute is not triggered, even if it later is triggered and the patentee fails to mark, it is necessary next to consider whether there is a genuine issue of material fact as to whether the marking statute was triggered at any point from July 14, 2003 until December 31, 2007. As a preliminary matter, WiAV contends that the Defendants bear the burden of showing that the marking statute is applicable. WiAV cites no law to support that assertion. Moreover, the law is clear that the patentee bears the burden of showing compliance with the marking statute. Dunlop v. Schofield, 152 U.S. 244, 248 (1894). This includes the burden of showing that the patentee is not subject to the requirements of § 287(a).DR Sys., Inc. v. Eastman Kodak Co., 2009 U.S. Dist. LEXIS 75549, at *10-13 (S.D. Cal. Aug. 25, 2009). Thus, WiAV bears the burden of showing that it, and its licensees, were not required to mark under § 287 from July 14, 2003 until December 31, 2007.

1. The Mindspeed Products

35 U.S.C. § 287(a) allows for notice through marking of a "patented article." § 287(a) thus "limits the extent to which damages may be recovered where products covered by a U.S. Patent are sold without the notice defined in the statute." Tex. Digital Sys., Inc. v. Telegenix, Inc., 308 F.2d 1193, 1220 (Fed. Cir. 2002) (emphasis added).

According to WIAV, the Mindspeed products "did not and could not by themselves practice the invention claimed in the '205 Patent." (Pl. Opp. at 9.) And, says WiAV, because the Mindspeed Products are not covered by the Patent, sale of those products does not trigger an obligation to mark under § 287(a). In support of its assertion, WiAV offers scant support. First, WiAV asserts that a Mindspeed witness testified that the Mindspeed products did not practice the Patent. In fact, the deposition testimony of the Mindspeed witness shows that the witness could not say whether or not the Mindspeed Products practiced the Patent. (See Def. Ex. 19 at 9:21-10:22.)

WiAV next asserts that Mindspeed's 10k reports as well as Mindspeed literature demonstrate that the products are not covered by the Patent. First, Mindspeed's 2006 10k report states: "Our products, ranging from optical network transceiver solutions to voice and Internet protocol (IP) processors, are sold to original equipment manufacturers (OEMs) for use in a variety of network infrastructure equipment, including mixed media gateways, high-speed routers, switches, access multiplexers, cross-connect systems, digital loop carrier equipment, IP private branch exchanges (PBXs) and optical modules." (Pl. Ex. 6 at 5.) Further, literature on the Mindspeed Comcerto Processor states that the "M82910 also supports Mindspeed's mix-and-match technology allowing active voice channel to operate a plethora of different voice codecs." (Def. Ex. 21.) This, argues WiAV, shows that Mindspeed sells chips, rather than handsets, that are sold to OEMs and can be put together in various ways. And, WiAV draws the conclusion that, because the Mindspeed products are chips put together in a variety of ways, they do not practice the Patent.

Based on the record before the Court, which includes only the documents cited above, neither a Court nor a jury could conclude that the Mindspeed products do not practice the Patent. Indeed, expert testimony is necessary to draw such a conclusion because of the technical nature of the products and cited material. WiAV offered no expert to support its position.

WiAV did offer a declaration from its expert, Dr. Branimir Vojcic. Dr. Vojcic's declaration, which was the subject of a motion to strike, was entirely speculative and conclusory. Thus, even if allowed, the declaration does not explain how the passages on which WiAV relies tend to support the conclusion that the Mindspeed products did not practice the Patent.

Finally, WiAV offers a comparison of two GSM standards to show that the Mindspeed products are not covered by the Patent. The first standard, which WiAV asserts related to the Mindspeed products is the AMR speech CODEC standard. (Pl. Ex. 12.) The second standard is the link adaptation standard, which covers the Patent. (Pl. Ex. 15.) Again, without expert testimony that the Mindspeed products are covered by the former standard and not by the latter, WiAV's offer of proof is insufficient.

Thus, on the whole, without expert testimony as to the exhibits cited by WiAV, one cannot draw an inference that the products do not practice the Patent. And, without such testimony, WiAV fails to meet its burden of demonstrating that the marking statute was not triggered.

2. The Skyworks Products

WiAV first asserts that the marking statute was not triggered for the Skyworks products because offers of sale are insufficient to trigger the marking requirement. Rather, says WiAV, only distribution of a product triggers the requirement of the marking statute. WiAV's argument is based on a misinterpretation of both the statute and the relevant decisional law.

Again, the "preeminent canon of statutory interpretation" requires courts to "presume that the legislature says in a statute what it means and means in a statute what it says there."BedRoc, 541 U.S. at 183 (citing Connecticut Nat. Bank, 503 U.S. at 153-54). § 287 provides that notice through marking should be given by patentees and "persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States . . ." Thus, the plain language of the statute requires marking when a product is made, sold, offered for sale, or imported. The statute does not limit the marking requirement to products that are distributed.

In support of its contention that marking is only required upon distribution, WiAV contends that the primary purpose of the marking statute is to give notice and that notice can only be given when a product is distributed. To support this theory, WiAV relies heavily on Am. Med. Sys., Inc. v. Med. Engineering Corp., 6 F.3d 1523, 1537-38 (Fed. Cir. 1993), in which the court held that "[t]he date that [the patentee] began marking its products is irrelevant for purposes of the statute, because marking alone without distribution provides no notice to the public where unmarked products are continuing to be shipped." WiAV also relies on Wokas v. Dresser Indus., Inc., 978 F. Supp. 839, 843 (N.D. Ind. 1997), in which the court considered when the adverse consequences of a failure to mark arise. Interpreting Am. Med. Sys., the court held that the adverse consequences of a failure to mark begin at the time the products are shipped. Wokas v. Dresser Indus., Inc., 978 F. Supp. 839, 844 (N.D. Ind. 1997). Thus, says, WiAV, under Am. Med. Sys. and Wokas, the adverse consequences of its failure to mark must begin at shipment. And, whereas here, there is no evidence that shipment ever occurred, no adverse consequences follow. Am. Med. Sys. simply did not address the issue presented here. Instead, the question in that case was when actual notice of the patented article was sufficient such that the patentee could collect damages. Am. Med. Sys., 6 F.3d at 1537-38. And, the court held that, in order to provide actual notice through marking, marked products must be distributed. Thus, upon careful reading,Am. Med. Sys. does not support the conclusion that, in order to trigger the marking statute's requirements, a product must be distributed. And, the statutory language is clear that constructive notice by marking is required when products are made, sold or offered for sale.

WiAV next argues that, even if offers of sale are sufficient to trigger the marking requirements, the offers must be made in the United States and that, here, there is no evidence of sales, or offers to sell, in the United States. The marking requirement applies only to patented products made, sold or offered for sale in the United States. See 35 U.S.C. § 287(a) ("Patentees, and persons making, offering for sale, or selling within the United States, may give notice to the public that the same is patented, either by fixing thereon the word "patent" or the abbreviation "pat.", together with the number of the patent . . .") (emphasis added). WiAV asserts that the Skyworks products do not trigger a marking requirement because there is no evidence that the SKY832 was sold or offered for sale in the United States.

To begin, Skyworks' Rule 30(b)(6) witness first testified that, between 2005 and 2007 Skyworks did not offer for sale in the United States "baseband processors that included adaptive multi-rate speech coders." (Def. Ex. 27 at 14:4-10.) However, the same witness later testified, on two occasions, that he did not know if the baseband processors, particularly the SKY832, were offered for sale in the United States. (Def. Ex. 27 at 14:25-15:2; 34:8-14.)

The Defendants assert that sale of the baseband processors in the United States may be implied from the declaration in support of Skywork's registration of the "LYNX" trademark. This is especially so, argue the Defendants, because according to the Patent and Trademark Office, "[u]se of a mark in a foreign county does not give rise to rights in the United States if the goods or services are not sold or rendered in the United States." TMEP § 901.03 (2007). In response, WiAV argues that the declaration does not establish that each listed product was distributed in the United States. First, argues WiAV, the phrase "in commerce" as used in the declaration can encompass foreign trade. See Int'l Bancorp, LLC v. Societe des Bains de Mer et du Cercle, 329 F.3d 359, 364 (4th Cir. 2003) ("`[C]ommerce' under the Lanham Act necessarily includes all the explicitly identified variants of interstate commerce, foreign trade, and Indian commerce."). Further, Skyworks attached a shipping label to its declaration of use for a shipment of 5000 units of the SKY77331-15 to South Korea. (Def. Ex. 51 at 13.) This, says WiAV, created an inference that Skyworks declared a use in commerce based on its use in foreign trade. (Pl. Opp. at 12.) And, that inference, WiAV argues, is also supported by Skyworks' 2005 Annual Report, which shows that in the years 2004 and 2005, less than ten percent of Skyworks' net revenues came from sales in the United States. (Pl. Ex. 8 at 97.) Of course, the Annual Report also establishes that Skyworks did produce revenue in the United States, albeit a small percent of overall revenue. And, on the record, it is unknown whether that small percent includes revenues generated by sales of products covered by the Patent. Moreover, the declaration, given a reasonable extraction, tends to show offers to sell in the United States. And, WiAV did not prove otherwise.

The Defendants also assert that distribution in the United States is implied from a Skyworks website. WiAV first states that the mere existence of the website does not support an inference of distribution in the United States. (Pl. Opp. at 13.) Further, according to WiAV, this website is unauthenticated and, even if used by Skyworks, could have been used to promote sales outside the United States. This is particularly so, argues WiAV, because the Skyworks website promoted two GSM/EDGE bands (900 and 1800) not supported in the United States. (Pl. Am. Ex. 3.) WiAV's argument here is unavailing because the website also promoted a GSM/EDGE standard, the 1900, which, according to the record, is supported in the United States. The website, therefore, tends to show offers for sale in the United States. It was up to WiAV to show otherwise, and it did not do so.

Finally, the Defendants rely upon an offer of sale of the SKY832 to Motorola to show that offers to sell were made in the United States. According to the Defendants, between 2005 and 2007, Skyworks offered for sale to Motorola the SKY832 processor. (Def. Ex. 27 at 41:5-22.) WiAV asserts that this is not so because, as of September 29, 2006, Skyworks discontinued its baseband operations. (Pl. Ex. 7 ay MOTO-WIAVS0000086434 ("During the fourth fiscal quarter of 2006, Skyworks began the restructuring of its business by discontinuing its baseband operations . . .")). And, argues WiAV, other than the fact that Skyworks made an offer for sale of the SKY832 to Motorola, there is no information about the time or place of the offer for sale, which could have been made to one of Motorola's worldwide offices. (See Pl. Ex. 9.)

Upon careful review of the evidence as a whole, WiAV falls short of meeting its burden. Indeed, rather than meeting its burden, WiAV in effect attempts to shift the burden to the Defendants by arguing that there is no evidence of sales in the United States. In doing so, WiAV certainly presents minimal facts and arguments that suggest that some, perhaps even many, sales could have occurred outside of the United States. But, it has failed to offer evidence that no sales, or offers to sell, were made in the United States other than the statement of Skyworks' 30(b)(6) witness, who first testified that, between 2005 and 2007, Skyworks was not offering to sell baseband processors in the United States and then contradicted that by stating that he did not know whether or not baseband processors were offered for sale in the United States. And, reviewing the evidence as a whole, no reasonable jury could find that WiAV has carried its burden of showing that no sales were made in the United States on the record before the Court.

WiAV must concede that LG, RIM, Apple, and HTC, beginning on December 31, 2007 sold or offered for sale patented articles without marking them. Additionally, WiAV has failed to meet its burden of showing a genuine issue of material fact of whether the Mindpseed and Skyworks products triggered the marking requirements. Further, it is undisputed that the Mindspeed and Skyworks products were unmarked. Thus, under § 287, WiAv is barred from collecting damages before July 14, 2009, when actual notice of infringement was given through the filing of the complaint.

CONCLUSION

For the reasons set forth above, the Defendants MOTION FOR SUMMARY JUDGMENT OF NO WILLFUL INFRINGEMENT AND NO PRESUIT DAMAGES is granted to the extent that it seeks to limit pre-suit damages and denied as moot to the extent that it seeks summary judgment for no willful infringement.

It is so ORDERED.

it was not a party would be too burdensome. Finally, the defendant argued, there was no language in § 35-42 indicating that a confidentiality requirement should be imposed on sharing information with officials of other jurisdictions.

In a May 1, 2007 memorandum of decision, the trial court denied the plaintiff's motion for summary judgment. The court first interpreted the phrases "shall not be available to the public" and "shall not be available for public disclosure," as used in § 35-42 (c) and (e) (2), respectively, in order to decide whether § 35-42 prohibits the disclosure of information to any person outside of the defendant's office. The court concluded that the legislature, by using those phrases, likely intended to establish an exception to the general rule contained in the Freedom of Information Act, General Statutes § 1-200 et seq., that documents received or retained by a public agency are public records available to the public for inspection and copying. According to the trial court, because the statute did not use the words "anyone" or "any person," it could not be read to preclude a limited disclosure to outside individuals when such disclosure is necessary to advance the purpose of the statute, namely, the investigation of potential antitrust violations and preparation for court proceedings. This limited disclosure, the court explained, would not violate the statutory proscription against disclosure to the "public," because that term contemplates the community at large as a group and does not necessarily apply to each of its individual members. The trial court concluded, therefore, that subsections (c) and (e) (2) of § 35-42 do not create an absolute bar to the disclosure of subpoenaed material and information during an investigation by the defendant.

As an initial matter, the trial court rejected the plaintiffs claim that the defendant was precluded by the doctrine of collateral estoppel from arguing that the meaning of § 35-42 differed from the interpretation of the statute reached in Mobil Oil Corp. v. Killian, 30 Conn. Sup. 87, 301 A.2d 562 (1973), because his office was a party to that action and did not challenge the court's holding by way of appeal. According to the trial court, the statutory interpretation in Mobil Oil Corp. was dicta and, therefore, the meaning of § 35-42 was not necessarily determined for purposes of preclusion. The trial court noted additionally that the holding of Mobil Oil Corp. was overruled legislatively by the amendment of § 3542. See Public Acts 1973, No. 73-668. Although we agree with the trial court that the doctrine of collateral estoppel does not apply to bar the defendant from relitigating the meaning of § 35-42, we do so on different reasoning. Specifically, we recently held that, for important policy reasons, nonmutual collateral estoppel cannot be employed offensively against a government entity as it may in an action between private parties. See Sikorsky Aircraft Corp. v. Commissioner of Revenue Services, 297 Conn. 540, 546, A.2d (2010); see also United States v. Mendoza, 464 U.S. 154, 159-60, 104 S. Ct 568, 78 L. Ed. 2d 379 (1984).

See General Statutes § 1-210 (a).

The trial court further rejected the plaintiffs assertion that it is entitled to notice and an opportunity to be heard in the event that any information obtained pursuant to § 35-42 is offered during court proceedings to which it is not a party. Finally, the trial court concluded that § 35-42 does not require officials of other jurisdictions who receive such information pursuant to subsection (g) to conform to the public nondisclosure provisions of subsections (c) and (e) (2).

The plaintiff appealed from the denial of its motion for summary judgment. We dismissed that appeal for lack of a final judgment. See Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 650, 954 A.2d 816 (2008). Thereafter, the defendant moved for summary judgment on the plaintiff's complaint and reclaimed the application for an order of compliance for a decision by the trial court; see footnote 11 of this opinion; and the plaintiff filed a second motion for summary judgment on its complaint. On February 24, 2009, the trial court, as to the plaintiffs complaint, denied the plaintiff's second motion for summary judgment, granted the defendant's motion for summary judgment, and rendered judgment in favor of the defendant, adopting as its reasoning the previous memorandum of decision on the plaintiff's first motion for summary judgment. The trial court also granted the defendant's reclaimed application for an order of compliance, reasoning that it involved the same issue of statutory interpretation that had been resolved in favor of the defendant. This appeal followed.

The plaintiff claims first that the trial court improperly construed the proscriptions in § 35-42 (c) and (e) (2) against "disclos[ing]" subpoenaed material and information to the "public" to refer only to disclosure to the general public via the provisions of the Freedom of Information Act that require access to public records, thus permitting disclosure to specific members of the public, including actual and potential competitors and clients of a subpoena target, if that disclosure furthers an antitrust investigation. According to the plaintiff, the confidentiality protection of § 35-42 applies even after subpoenaed documents are filed in an enforcement action, thereby requiring that the owner of the documents be given notice and an opportunity to be heard when the defendant intends to use the documents in court so that the owner can seek a court order protecting them from disclosure. Finally, the plaintiff argues, because the confidentiality requirements of § 35-42 remain in place even when documents are shared with other governmental officials, the defendant must obtain agreement from such officials to adhere to those requirements before sharing any subpoenaed documents or information with them. We agree with the plaintiff.

We begin with the applicable standard of review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court's decision to grant [a party's] motion for summary judgment is plenary." (Internal quotation marks omitted.) Southwick at Milford Condominium Assn., Inc. v. 523 Wheelers Farm Road, Milford, LLC, 294 Conn. 311,318, 984 A.2d 676 (2009).

The plaintiff's claim also presents a question of statutory interpretation, such that the trial court's conclusions are legal ones subject to plenary review. Wiseman v. Armstrong, 295 Conn. 94, 99, 989 A.2d 1027 (2010). "The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case. . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case. . . . In seeking to determine that meaning . . . [General Statutes] § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise. . . ." (Internal quotation marks omitted.) Id., 99-100.

We begin by considering the text of § 3542. As to each type of subpoenaed material or information, the statute prohibits disclosure to the "public." Because the word "public" is not statutorily defined, the trial court looked to various dictionary definitions stating that "public" means "[t]he community or the people as a whole"; "[a] group of people sharing a common interest"; American Heritage Dictionary of the English Language (3d Ed. 1992); or "[t]he whole body politic, or the aggregate of the citizens of a state, nation, or municipality. The inhabitants of a state, county, or community. In one sense, everybody, and accordingly the body of the people at large; the community at large . . . the people. In another sense the word does not mean all the people, nor most of the people, nor very many of the people of a place, but so many of them as contradistinguishes them from a few. . . ." Black's Law Dictionary (6th Ed. 1991). Although the trial court correctly concluded from the foregoing definitions that the term "public" generally contemplates a group of people collectively, rather than as individuals, we believe that that distinction, read within the context of the remainder of § 35-42, only creates an ambiguity. In particular, if subpoenaed material and information cannot be shared with society at large, but nevertheless may be shared with any or all of its individual members, the statutory bar against disclosure essentially becomes meaningless and unworkable. Accordingly, we must look further to construe the legislature's intent.

Consideration of the additional protections afforded by § 35-42, and of other statutes with similar focus, lends support to the notion that the legislature, although it granted broad investigatory powers to the defendant to pursue antitrust violators, also intended to afford counterbalancing protections to investigatory targets in recognition of the potential sensitivity of internal business information and the fact that the defendant's investigation need not be founded on any specified level of suspicion and, ultimately, might result in no allegations of wrongdoing. See footnote 4 of this opinion. First, § 35-42 (c), aside from requiring that subpoenaed documents not be available for public disclosure, also requires that such documents be "held in the custody of the [defendant] or his designee," a phrase that connotes a duty of safekeeping. Moreover, § 35-42 (c) requires that subpoenaed documents "be returned to the person [providing them] at the termination of the [defendant's] investigation or final determination of any action or proceeding commenced thereunder" in apparent recognition that the documents are the personal property of the investigatory target. Additionally, the legislature's appreciation for the value of trade secrets to their owners and the need for their protection is evidenced by its passage of the Connecticut Uniform Trade Secrets Act (trade secrets act), General Statutes § 35-50 et seq., which permits actions for both injunctive relief and damages, including punitive damages and attorney's fees, for misappropriation of trade secrets. See General Statutes §§ 35-52, 35-53 and 35-54. Notably, the trade secrets act defines "misappropriation" as including "disclosure or use of a trade secret of another without express or implied consent by a person who . . . at the time of disclosure or use, knew or had reason to know that his knowledge of the trade secret was . . . acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use. . . ." (Emphasis added.) General Statutes § 35-51 (b) (2) (B) (ii). The trade secrets act provides further that the "[p]erson[s]" who may be liable for misappropriation include "government[s] . . . [and] governmental subdivision[s] or agenc[ies]. . . ." General Statutes § 3551 (c). Presumably, the legislature was aware of the provisions of § 35-42 when it enacted the trade secrets act in 1983. Public Acts 1983, No. 83-344. The legislature's attachment of such severe penalties to the unauthorized disclosure of trade secrets by government agencies having a duty to limit their use would be wholly inconsistent with a simultaneous intent that § 35-42 permits such disclosure in the attorney general's discretion. See Envirotest Systems Corp. v. Commissioner of Motor Vehicles, 293 Conn. 382, 398, 978 A.2d 49 (2009) (legislature "is presumed to have acted with knowledge of existing statutes and with an intent to create one consistent body of law" [internal quotation marks omitted]).

"`[T]rade secret' means information, including a formula, pattern, compilation, program, device, method, technique, process, drawing, cost data or customer list that: (1) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy." General Statutes § 35-51 (d).

We disagree with the trial court's reasoning that the prohibitions in § 35-42 against "public" disclosure merely were meant to create an exception to the general laws requiring open access to public records, because "the word `public' is a key term used in our Freedom of Information Act." According to the trial court, if the legislature had intended the provisions to mean otherwise, it would have used phraseology barring disclosure of subpoenaed material or information to "`any person,'" or "`anyone,'" as it did in various other statutes intended to impose strict confidentiality requirements. The trial court's conclusion, however, is contradicted by the language of the Freedom of Information Act itself, which provides that "every person" — and not "the public" — shall have the right to inspect and copy public records. General Statutes § 1-210 (a). In any event, as the trial court recognized in ruling on a motion for articulation filed by the plaintiff, § 35-42, which was enacted in 1971; see Public Acts 1971, No. 608; predates the Freedom of Information Act, which was not in existence until 1975. See Public Acts 1975, No. 75-342. Consequently, the legislature, when crafting § 35-42, could not have been referencing the Freedom of Information Act by using the word "public."

The public records statute that preceded the Freedom of Information Act, and which was in effect when § 3542 was enacted, similarly did not refer to the beneficiary of its disclosure requirements as "the public," but stated instead that " every resident of the state shall have the right to inspect or copy such [public] records. . . ." (Emphasis added.) General Statutes (Sup. 1969) § 1-19. Moreover, the predecessor statute expressly exempted from the definition of public records "trade secrets and commercial or financial information obtained from the public"; General Statutes (Sup. 1969) § 1-19; which would have rendered a restatement of the exemption for such items in § 35-42 entirely super fluous. We cannot countenance a reading of a statute that would render it superfluous. State v. Marsh McLennan Cos., 286 Conn. 454, 471, 944 A.2d 315 (2008). Finally, our research reveals that, when the legislature wishes to create an exception to public records requirements, it does so clearly by explicitly referencing the statute generally authorizing access, and not by alluding to it with ambiguous "key term[s]."

See, e.g., General Statutes § 2-46a (a) (materials obtained or prepared in conjunction with impeachment proceedings "shall not be subject to the provisions of section 1-210 until such [impeachment] committee transmits its final report to the House of Representatives"); General Statutes § 2-53g (b) (investigatory materials of "Legislative Program Review and Investigations Committee or its staff shall not be subject to the provisions of section 1-210 until the investigation is completed"); General Statutes § 4-37f (9) (requiring written agreement that, when state agencies maintain books and records of supporting foundations, "any such books and records maintained by the state agency shall not be deemed to be public records and shall not be subject to disclosure pursuant to the provisions of section 1-210"); General Statutes § 4-61 (c) (certain records produced during arbitration of claims against state on highway and public works contracts "shall not be subject to disclosure under section 1-210 and shall not be disclosed by the agency to any person or agency that is not a party to the arbitration"); General Statutes § 7-479h ("meetings, minutes and records of an interlocal risk management agency pertaining to claims shall not be subject to sections 1-201, 1-202, 1-205, 1-206, 1-210, 1-211, 1-213 to 1-217, inclusive, 1-225 to 1-232, inclusive, 1-240, 1-241 and 19a-342"); General Statutes § 8-30h (income statements of affordable housing tenants "shall be confidential and shall not be deemed public records for the purposes of the Freedom of Information Act, as defined in section 1-200"); General Statutes § 8-360 ("[n]othing in sections 1-200, 1-205, 1-206, 1-210 to 1-213, inclusive, 1-225 to 1-232, inclusive, 1-240 and 19a-342 shall be construed to require a public agency, as defined in section 1-200, to disclose any information indicating the location of a shelter or transitional housing for victims of domestic violence"); General Statutes § 10-10a (b) (department of education's "system database of student information shall not be considered a public record for the purposes of section 1-210"); General Statutes § 10-151c (records of teacher performance and evaluation maintained by boards of education "shall not be deemed to be public records and shall not be subject to the provisions of section 1-210"); General Statutes § 10a-154a (performance and evaluation records of faculty or professional staff members "shall not be deemed . . . public record[s] and shall not be subject to disclosure under the provisions of section 1-210" absent written consent); General Statutes § 10-409 (b) ("[n]otwithstanding the provisions of . . . section 1-210, the Connecticut Commission on Culture and Tourism may withhold from disclosure to the public information relating to the location of archaeological sites under consideration for listing by the commission"); General Statutes § 11-25 (b) (1) ("[n]otwithstanding section 1-210, records maintained by libraries that can be used to identify any library user, or link any user to a library transaction, regardless of format, shall be kept confidential"); General Statutes § 12-63c (b) ("information related to actual rental and rental-related income and operating expenses and not already a matter of public record which is submitted or made available to the [tax] assessor shall not be subject to the provisions of section 1-210"); General Statutes § 12-810 (c) (new lottery games and procedures "shall not be deemed public records, as defined in section 1-200, and shall not be available to the public under the provisions of section 1-210"); General Statutes § 17b-452 (c) (records of investigations of abuse of elderly persons "shall not be deemed public records nor be subject to the provisions of section 1-210"); General Statutes § 19a-12b (f) (department of health professional assistance oversight committee records "shall not be deemed public records and shall not be subject to the provisions of section 1-210"); General Statutes § 19a-429 (records pertaining to investigations of youth camps "shall not be subject to the provisions of section 1-210"); General Statutes § 21-100 (e) (statements of dealers of precious metals regarding weekly transactions "shall not be deemed public records for the purposes of the Freedom of Information Act, as defined in section 1-200").

Although the defendant suggested at oral argument that the legislature's method of explicit cross-referencing differed prior to the enactment of the Freedom of Information Act, he has not provided any authority supporting that proposition.

Although the legislative history of § 35-42 does not address the particular issue at hand, the circumstances surrounding the subsequent amendments to the statute, or the lack thereof, shed further light on the legislature's intent regarding the nondisclosure provisions. The antitrust act intentionally was patterned after federal antitrust law. Vacco v. Microsoft Corp., 260 Conn. 59, 72, 793 A.2d 1048 (2002); Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 15, 664 A.2d 719 (1995). Section 3542, when it originally passed in 1971, was "modeled, with some changes, after the federal Antitrust Civil Process Act of 1962, set forth in 15 U.S.C. §§ 1311 [through] 1314 (1970)." Mobil Oil Corp. v. Killian, 30 Conn. Sup. 87, 91, 301 A.2d 562 (1973). The federal statute, at that time, had strict nondisclosure provisions, requiring documentary material produced in response to an investigative demand to be held by a designated "antitrust document custodian," and providing that "no material so produced shall be available for examination, without the consent of the person who produced such material, by any individual other than a duly authorized officer, member, or employee of the Department of Justice." Antitrust Civil Process Act, Pub.L. No. 87-664, §§ 2 and 4 (c), 76 Stat. 548, 550 (1962). The federal statute thereafter was amended to create an exception permitting disclosure of material in connection with the taking of oral testimony, "[n]otwithstanding" the foregoing nondisclosure requirement. 15 U.S.C. § 1313 (c) (2) (2006). Section 35-42, however, was not amended to mirror its federal counterpart. We glean from this circumstance that our legislature intended that materials submitted in a Connecticut antitrust investigation should not be available for such use.

As a general matter, we interpret the antitrust act with reference to the federal courts' interpretation of federal antitrust law. Vacco v. Microsoft Corp., supra, 260 Conn. 72-73; Westport Taxi Service, Inc. v. Westport Transit District, supra, 235 Conn. 15 n. 17; see also General Statutes § 35-44b. Nevertheless, we may disregard federal precedent when the statutes at issue differ materially in their terms. See State v. Marsh McLennan Cos., supra, 286 Conn. 470 (Connecticut courts need not incorporate federal antitrust law into state antitrust jurisprudence where state statute and federal counterpart differ significantly); Miller's Pond Co., LLC v. New London, 273 Conn. 786, 811, 873 A.2d 965 (2005) (§ 35-44b inapplicable in case that concerned state antitrust statute having no federal counterpart); Westport Taxi Service, Inc. v. Westport Transit District, supra, 15-16 ("we follow federal precedent when we interpret the [antitrust] act unless the text of our antitrust statutes, or other pertinent state law, requires us to interpret it differently").

In addition, § 35-42, when it was originally enacted, did not include subsection (e) (2), allowing the defendant to demand responses to written interrogatories, or subsection (g), authorizing the defendant to share information with other government officials. See Public Acts 1971, No. 608; see also footnote 2 of this opinion. Thus, under the original wording, the defendant was authorized only to subpoena documents, which "shall not be available to the public"; Public Acts 1971, No. 608, § 19 (c), now codified at General Statutes § 35-42 (c); and to compel oral testimony, with the transcripts thereof not to "be available for public disclosure . . ." Public Acts 1971, No. 608, § 19 (e), now codified at General Statutes § 35-42 (e) (1). Shortly after the enactment of § 35-42, a trial court had the opportunity to interpret the meaning of the phrase "shall not be available to the public," as used in subsection (c). In Mobil Oil Corp. v. Killian, supra, 30 Conn. Sup. 90-91, 96, the plaintiff brought an action to quash a subpoena issued by the defendant pursuant to § 35-42 (c), arguing, inter alia, that the defendant intended to use the subpoenaed material improperly by disclosing it to other states' attorneys general. The trial court agreed that such a use was not permitted by § 35-42, concluding that "[u]nder our statute, while the matter is in the civil investigative stage, no one is entitled to examine the documents or records except the attorney general and his designee. Insofar as the phrase `shall not be available to the public' requires interpretation, it includes everyone other than the attorney general and his designee. None of the information obtained by this subpoena is available for export to any other person during the civil investigative stage." Id., 96. The trial court issued an order in accordance with this interpretation.

The legislature responded to the trial court's decision in Mobil Oil Corp. by amending § 35-42 to add subsection (g), thereby permitting the defendant to share information and evidence gathered in antitrust investigations with officials in other states and the federal government. Public Acts 1973, No. 73-668, § 4. At the same time, the legislature added subsection (e) (2) to § 35-42, authorizing the defendant to demand responses to interrogatories, subject to the same confidentiality caveat that already existed in subsection (c) and which the trial court had interpreted in Mobil Oil Corp., namely, that the responses not be disclosed to the pubment. Public Acts 1973, No. 73-668, § 3.

We agree with the plaintiff that these amendments strongly evidence the legislature's agreement with the trial court's interpretation of § 3542 in Mobil Oil Corp. If, as the defendant insists, the prohibition against disclosure was merely an exception to the general laws governing access to public records, the legislature simply would have reworded the existing subsections (c) and (e) (1) of § 35-42, and phrased the new subsection (e) (2), to say so clearly and to refute the holding of Mobil Oil Corp. Instead, the legislature retained, and reused, the language that it was aware had been interpreted broadly, and added only one exception to the court's general holding that all disclosure of subpoenaed materials was barred, to anyone outside the attorney general's office. Cf. Mattox v. Federal Trade Commission, 752 F.2d 116, 120 (5th Cir. 1985) (concluding that legislature's general bar of public access to information obtained in investigations pursuant to Hart-Scott-Rodino Act of 1976, 15 U.S.C. § 18a [h], coupled with exception allowing disclosure to Congress and congressional committees, was "evidence that the statute's prohibition of disclosure was otherwise meant to be universal"); Lieberman v. Federal Trade Commission, 771 F.2d 32, 38 (2d Cir. 1985) (same).

We acknowledge that the trial court's holding in Mobil Oil Corp., to the extent that it went beyond the issue presented, namely, whether the defendant could share subpoenaed documents with other government officials, was dicta. We see no reason, however, why the legislature, if it perceived any peripheral aspect of the court's decision to be a misinterpretation of § 35-42, would have declined to correct a misinterpretation as part of the amendment responding to the direct holding of the case.

It is well settled that "[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or [nonaction] will have upon any one of them . . . as well as the interpretation which the courts have placed upon one of its legislative enactments and of the effect that its own nonaction, thereafter may have." (Citation omitted; internal quotation marks omitted.) Miller's Pond Co., LLC v. New London, 273 Conn. 786, 812, 873 A.2d 965 (2005). In short, the legislature's failure to act following a court's interpretation of a statute suggests strongly that the legislature agrees with that interpretation. Id. We conclude that, to the extent the legislature declined to alter the holding of Mobil Oil Corp. when it passed responsive legislation, it agreed with that holding. Accordingly, we construe § 35-42 as barring disclosure of material and information gathered in an antitrust investigation pursuant to § 35-42 to all persons outside of the attorney general's office, with the exception of officials of other states and the federal government.

Pursuant to § 35-42, investigatory materials may be held or solicited by either the attorney general or his designees. We read the latter term to include experts retained by the attorney general or others authorized to act on his behalf in conducting antitrust investigations. Cf. Tesoro Petroleum Corp. v. State, 42 P.3d 531, 535-39 (Alaska 2002) (outside counsel was both "`authorized employee'" and attorney general's "`[d]esignee'" for purpose of statute authorizing civil investigative demands for suspected antitrust violations). At oral argument, the plaintiff agreed that the term "designee" encompassed outside counsel and expert witnesses.

On the basis of our interpretation of § 35-42, we agree with the plaintiff's contention that the defendant may not disclose the materials and information obtained from the plaintiff to persons outside of the defendant's office in connection with taking oral testimony in pursuance of an antitrust investigation. We also agree that the defendant, if he chooses to share such materials and information with other government officials pursuant to § 35-42 (g), first must obtain agreement from those officials that they will abide by the same confidentiality restrictions to which the defendant is subject. Finally, if the defendant decides to institute an antitrust action and needs to file investigatory materials in conjunction with the action, he should do so in accordance with the lodging procedures set forth in Practice Book §§ 7-4B and 7-4C.

Practice Book § 7-4B provides: "(a) As used in this section, `record' means any affidavit, document, or other material.
"(b) A party filing a motion requesting that a record be filed under seal or that its disclosure be limited shall lodge the record with the court pursuant to Section 7-4C when the motion is filed, unless the judicial authority, for good cause shown, orders that the record need not be lodged. The motion must be accompanied by an appropriate memorandum of law to justify the sealing or limited disclosure.
"(c) If necessary to prevent disclosure, the motion, any objection thereto, and any supporting records must be filed in a public redacted version and lodged in a nonredacted version conditionally under seal.
"(d) If the judicial authority denies the motion to seal or to limit disclosure, the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record so that in the event the submitting party appeals the denial of the motion, the lodged record can be part of the record on appeal of the final judgment in the case. In the latter event or if the judicial authority grants the motion, the clerk shall follow the procedure set forth in Section 7-4C (e). If the lodged record is retained pursuant to (2) above, the clerk shall return it to the submitting party or destroy it upon the expiration of the appeal period if no appeal has been filed."

Practice Book § 7-4C provides: "(a) A `lodged' record is a record that is temporarily placed or deposited with the court but not filed.
"(b) A party who moves to file a record under seal or to limit its disclosure shall put the record in a manila envelope or other appropriate container, seal the envelope or container, and lodge it with the court.
"(c) The party submitting the lodged record must affix to the envelope or container a cover sheet that contains the case caption and docket number, the words `Conditionally Under Seal,' the name of the party submitting the record and a statement that the enclosed record is subject to a motion to file the record under seal.
"(d) Upon receipt of a record lodged under this section, the clerk shall note on the affixed cover sheet the date of its receipt and shall retain but not file the record unless the court orders it filed.
"(e) If the judicial authority grants the motion to seal the record or to limit its disclosure, the clerk shall prominently place on the envelope or container the words `SEALED BY ORDER OF THE COURT ON (DATE)' or `DISCLOSURE LIMITED BY ORDER OF THE COURT ON (DATE),' as appropriate, and shall affix to the envelope or container a copy of the court's order and the public redacted version of the motion. If the judicial authority denies the motion and the submitting party requests in writing that the record be retained as a lodged record, the clerk shall prominently place on the envelope or container the words `MOTION DENIED, RETAIN AS LODGED RECORD' and shall affix to the envelope or container a copy of the court's order and the public redacted version of the motion."

As to the bar against sharing subpoenaed documents with third parties, who potentially may be direct competitors of the owner of the documents, we disagree with the defendant that such a restriction will cripple his ability to investigate possible antitrust violations. As the plaintiff points out, nongovernmental parties routinely are able to bring actions pursuant to the private enforcement provisions of the antitrust act; General Statutes §§ 35-33 and 35-34; without having the ability to conduct any pretrial discovery whatsoever. Additionally, although federal officials are authorized by the Antitrust Civil Process Act to use subpoenaed materials in third party depositions; see 15 U.S.C. § 1313 (c) (2); it does not appear that such use is a vital investigatory tool. Finally, we strongly reject the defendant's contention that "there can be little actual prejudice in disclosing subpoenaed materials to competitors as necessary to pursue an antitrust investigation [because] [a]ny competitor to whom disclosure is made will very likely already have some knowledge of the document as a result of [its] participation in the contract or conspiracy being investigated." It bears emphasizing that, when the defendant is conducting discovery pursuant to § 35-42, investigatory targets have not been, and in some cases may never be, charged with any wrongdoing. Accordingly, it is wholly inappropriate to presume their guilt to justify further expansion of the defendant's already considerable statutorily granted investigatory powers.

A manual used internally by the Antitrust Division of the United States Department of Justice provides that, "[a]lthough it is occasionally useful to use [civil investigatory demand] materials in a deposition of a third party where the third party has already seen the materials, or is at least generally aware of their substance, it is very rarely necessary to use [those] materials in connection with a deposition of a third party that is unfamiliar with the contents of those materials." Dept. of Justice, Antitrust Division Manual (4th Ed. 2008) c. III, pp. III-68 through III-69. Additionally, the assistant attorney general in the present case acknowledged, when he attempted to negotiate with the plaintiff the terms to govern its compliance with the defendant's subpoena, that disclosure of subpoenaed material when deposing third party witnesses is necessary only "[i]n very rare instances. . . ."

In regard to sharing information with officials of other jurisdictions, it is clear that the legislature, by enacting § 35-42 (g), intended that the defendant should have and exercise this power. Nevertheless, reading subsection (g) in conjunction with subsections (c) and (e) of § 35-42, it is also clear that that power necessarily is conditional, so as to not render impotent the confidentiality provisions of the latter two subsections. When construing a statute, we read it "as a whole . . . so as to reconcile all parts as far as possible." (Internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 157, 602 A.2d 988 (1992). If officials of other jurisdictions were free to use and disclose material and information obtained under § 35-42 in ways that the defendant may not, the bars against disclosure in subsections (c) and (e) would be rendered meaningless. Again, the defendant's insistence that it would be unduly burdensome to impose conditions regarding disclosure on other officials is belied by the fact that many other states have similar prerequisites for interjurisdictional sharing of documents and information acquired in prelitigation antitrust investigations. See, e.g., California Govt. Code § 11181 (g) (Deering Sup. 2009) (department head may divulge information obtained in antitrust investigation to other government officials "if the Attorney General, prosecuting attorney, or agency to which the information or evidence is divulged agrees to maintain the confidentiality of the information received to the extent required by [California's statutes governing antitrust investigations]"); Mass. Ann. Laws c. 93, § 8 (LexisNexis 2005) (allowing disclosure to other officials provided "that prior to any such disclosure the attorney general shall obtain a written agreement from such officials to abide by the restrictions of [the Massachusetts statute governing investigative demands] and any orders entered [thereunder].)"

Finally, as to filing in court proceedings subpoenaed material and information that was obtained during an investigation conducted prior to the institution of an action, we disagree with the defendant that continued adherence to the nondisclosure requirements of § 35-42 will lead inevitably to a "secret antitrust docket." When such materials are filed or entered into evidence in connection with a court proceeding, the confidentiality protection afforded by the statute must be balanced against the countervailing presumption that documents submitted to a court in furtherance of its adjudicatory function shall be available to the public. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 34-35, 46, 970 A.2d 656, cert. denied sub nom. Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., U.S., 130 S. Ct. 500, 175 L. Ed. 2d 348 (2009); see also Practice Book § 11-20A (a). Accordingly, when the defendant intends to file materials obtained pursuant to § 35-42, or to include the substance of such materials within a pleading, he should utilize the lodging procedures set forth in Practice Book §§ 7-4B and 7-4C. Specifically, to comply with the confidentiality mandates set forth in § 35-42, he should lodge the materials with the trial court. The party from whom the material was obtained then will have an opportunity to file a motion, accompanied by an appropriate memorandum of law, seeking to file the materials under seal or to limit their disclosure. The trial court must then determine, in accordance with Practice Book § 11-20A (c), whether the materials contain any trade secrets or other sensitive information, and whether the need to maintain their confidentiality overrides the public's interest in viewing them. See Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 35 (presumption of public access to court documents may be out weighed by countervailing considerations).

Although the defendant has expressed concern over an interpretation of § 35-42 that would constrain his ability to reference subpoenaed materials in a complaint, we question whether that concern is warranted. Connecticut employs fact pleading, which requires that a "pleading shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved. . . ." Practice Book § 10-1. In accordance with this provision, "[a]ttorneys in Connecticut are not required, at the time a pleading is filed, to substantiate the allegations contained therein with evidentiary support." Brunswick v. Statewide Grievance Committee, 103 Conn. App. 601, 617, 931 A.2d 319, cert. denied, 284 Conn. 929, 934 A.2d 244 (2007). To the contrary, inclusion of evidence in a complaint is a violation of our rules of practice. Fort Trumbull Conservancy, LLC v. Alves, 286 Conn. 264, 277 n. 13, 943 A.2d 420 (2008).

If the materials are obtained from a nonparty, the nonparty must be given notice that the materials have been lodged with the court so that it has an opportunity to intervene and contest their disclosure to the extent that it believes is warranted. See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 5 n. 1 (nonparty individuals permitted to intervene for limited purpose of contesting disclosure of documents).

Practice Book § 11-20A (c) provides: "Upon written motion of any party, or upon its own motion, the judicial authority may order that files, affidavits, documents, or other materials on file or lodged with the court or in connection with a court proceeding be sealed or their disclosure limited only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials. The judicial authority shall first consider reasonable alternatives to any such order and any such order shall be no broader than necessary to protect such overriding interest. An agreement of the parties to seal or limit the disclosure of documents on file with the court or filed in connection with a court proceeding shall not constitute a sufficient basis for the issuance of such an order."

We recognize that our rules of practice presume that the party lodging records with the trial court necessarily is the same party who wishes to have the records sealed or their disclosure limited. As a practical matter, however, we also recognize that the lodging party, at times, will be seeking disclosure of records that earlier were deemed confidential. In such circumstances, requiring lodging of the records in a manner consistent with the procedures set forth in Practice Book §§ 7-4B and 7-4C will ensure that the records remain confidential until the court can enter an order pursuant to Practice Book § 11-20A (c).

The judgment is reversed and the case is remanded to the trial court with direction to render summary judgment in favor of the plaintiff and to deny the defendant's application for an order of compliance.

In this opinion the other justices concurred.

BROWN AND BROWN, INC. v. RICHARD BLUMENTHAL, ATTORNEY GENERAL, RICHARD BLUMENTHAL, ATTORNEY GENERAL

Comments