U.S. Supreme Court- Patent Suit Awards, Punitive Damages

Brent Kendall reported this week at The Wall Street Journal Online that, “The Supreme Court considered whether to make it easier to win larger financial damages in patent-infringement cases, an issue that has split the Obama administration from a number of leading technology companies.

“The justices during an hourlong oral argument spent much of their time voicing competing concerns about the consequences of the court’s eventual opinion, which will address the availability of punitive damages when someone intentionally infringes on a patented invention. Punitive damages, financial awards that go beyond actual damages, are used in patent judgments to punish particularly egregious behavior.

“Justice Stephen Breyer said opening the door wider to such damages in patent cases could deter innovation and create crippling liability for small businesses and tech startups that can’t afford sophisticated patent lawyers. Patent law is ‘designed to help the small businessman, not to hurt him,’ he said.”

The Journal article pointed out that, “Raising points on the other side was Justice Elena Kagan, who said a legal standard adopted by a lower court that hears patent cases is so stringent that winning punitive damages is tough even when a company purposely copies another firm’s patented product. As long as there is some plausible legal defense for its actions, it can avoid punitive damages for bad behavior, she said.”

Mr. Kendall explained that, “Federal law says trial judges may award enhanced infringement damages up to three times the amount of actual damages in a case. The Supreme Court is deciding how much leeway judges have to conclude that such damages are appropriate.”

“A decision is expected by the end of June,” the article noted.

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Unease In European Tech Sector

Mark Scott reported recently in The New York Times that, “The focus at Deliveroo [a food delivery start-up with headquarters in London] is symptomatic of a change across many European start-ups. Just as in Silicon Valley, where a number of privately held tech companies have been stung by lower valuations and investor questions about their sustainability, that same unease has now reached Europe’s tech community, in a sign that a move away from soaring boom times in start-ups is going global.

“Driving the pullback are some of the same forces that have caused a change in Silicon Valley’s start-up scene. Tech stocks are gyrating because of fears of a global economic slowdown — exacerbated in Europe by the region’s migrant crisis and persistent financial problems. Valuations of some start-ups worldwide got ahead of themselves. As a result, venture capitalists in Europe and farther afield are becoming more cautious about funding local start-ups that do not have proven business ideas.

“‘When Silicon Valley sneezes, the rest of the world catches a cold,’ said Fred Destin, a partner at the London office of Accel Partners, a venture capital firm. ‘It’s only a matter of time before Europe faces the same issues that we’re seeing on the West Coast.'”

Mr. Scott noted that, “The chill among European start-ups is not as severe as in Silicon Valley, where companies like the storage start-up Dropbox have been marked down in value by mutual fund companies, and other start-ups have had to raise money at lower values than previously, in what are known as down rounds.

“That’s because the European start-up scene is significantly smaller than that of Silicon Valley.”

The Times article added that: “Still, as American investor sentiment spreads across the Atlantic, European venture capitalists said they were warning start-ups that new capital would be tougher to come by than in previous years. And for start-ups that already had raised money, they cautioned, how entrepreneurs spend existing funds will also come under greater scrutiny.”

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The Outlook for U.S. Ag- USDA Chief Economist Robert Johansson

USDA Chief Economist Robert Johansson provided an outlook for U.S. agriculture today at the at the Department’s annual Agricultural Outlook Forum in northern Virginia.

In part, Dr. Johansson indicated that, “U.S. economic growth is expected to be near 3 percent in 2016 and 2017 before gradually moving to a longer term growth rate of 2.3 percent…[and]…the real value of the dollar increased substantially in 2015 relative to competitor and customer currencies and that growth is expected to continue through 2017.”

“Does that mean a stronger U.S. economy and strong U.S. dollar adversely impacts the U.S. agricultural economy? Clearly, a stronger dollar means it is more difficult to sell products to countries with weaker currencies, such as Egypt and Nigeria (major wheat importers) and it is easier for countries, such as Canada and those in the EU, to sell their agricultural products abroad, making for an extremely competitive trade environment. However, a strong economy also helps U.S. producers in several ways. First, it is easier for U.S. buyers to import goods, such as fertilizer, from countries with weakening currencies, such as Canada, Russia, and Ukraine.

“Second, a stronger U.S. economy provides improved off-farm income opportunities for a large majority of U.S. farm households. Since the latest recession ended in 2009, median farm household income has grown faster than U.S. median household income (see figure 9). Between 2010 and 2016, median farm household incomes are forecast to have increased by more than 50 percent. Most of that growth has come from improved off- farm income opportunities. Off-farm income and on-farm income for median farm households are all projected up in 2016. That is true for both smaller residential farm households as well as larger commercial farm households.”

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EPA Waters of the U.S. Rule, Sixth Circuit Jurisdiction

DTN writer Todd Neeley reported yesterday that, “The U.S. Circuit Court of Appeals for the Sixth District in Cincinnati ruled it has jurisdiction to hear numerous legal challenges to the waters of the United States rule on Monday.

“In the court’s majority opinion, Judge David W. McKeague wrote that because federal district courts issued conflicting rulings on a number of cases last year, the Sixth Circuit should hear many of the challenges levied by states and a variety of industry groups, including those in agriculture.

“The Sixth Circuit issued a national injunction of the rule last year, putting it on hold until legal issues could be resolved. Many legal experts believe the rule ultimately will be decided by the U.S. Supreme Court. In a ruling last year, the Sixth Circuit Court was highly critical of the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers in the development and finalization of the rule.”

Mr. Neeley indicated that, “In the ruling announced Monday, Judge McKeague said it would make legal sense for the Sixth Circuit to consider the case.

“‘The Clean Water Rule is intended to clarify the scope of ‘the waters of the United States’ subject to protection under the Clean Water Act,’ according to the court’s ruling. ‘The act provides that certain specified actions of the EPA administrator are reviewable directly in the U.S. Circuit Courts of Appeals.'”

The DTN article added that, “Some 30 states have sued the EPA and the Army Corps of Engineers to stop the rule’s enforcement. In a ruling last year the Sixth Circuit Court said it believes the plaintiffs have demonstrated their legal claims could be successful.

“Exactly how long the stay will last is not known.”

The Waters of the U.S. Rule has been identified as an important issue that could impact agriculture as the executive branch and the Senate consider a new U.S. Supreme Court Justice in the future.

 

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Slack: A Start-Up That Is “Crushing it.”

Erin Griffith reported on the front page of the business section in today’s Los Angeles Times that, “Stewart Butterfield graduated high school to become part of the slacker generation, which is coincidentally reflected in the name of his business software start-up, Slack. His Twitter bio includes an apathetic ‘shruggie’ emoticon and a mea culpa: ‘I’m trying my hardest!'”

The article explained that, “Just two years in, and Slack has raised $340 million in venture capital, boosted its head count to 369 and snagged 2.3 million daily active users, 675,000 of which pay for the service.

“Slack has $64 million in ‘annual recurring revenue,’ a metric subscription software companies use to extrapolate monthly income for the entire year. The company has outgrown its office three times now, and will do so again in six months.”

Today’s article added that, “Slack’s rapid adoption makes it one of the fastest-growing business software applications…[T]he company, which launched two years ago and carries a $2.8-billion valuation, is also one of the world’s fastest-growing venture-backed start-ups.”

In addition, the L.A. Times article pointed out that, “To expand, Slack created an $80-million fund to invest in start-ups building tools for its application. It’s a way to outsource the building of customization and special new features. (Picture an App Store for Slack.)

“So many developers have submitted their own Slack apps that the internal approval process has broken down, Butterfield says.”

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Start-Ups Upbeat in Unsteady Environment

Katie Benner reported in today’s New York Times that, “Technology stocks are gyrating. Valuations for once-vaunted private companies have been slashed and some start-ups have shut down. Even Apple’s chief executive, Timothy D. Cook, recently said he was ‘seeing extreme conditions unlike anything we have ever experienced.’

“But in Silicon Valley, ask any start-up entrepreneur about the shifting economic environment and the answer often goes like this:

“‘I haven’t changed anything since this all started,’ said Manav Mital, the chief executive of Instart Logic, which speeds the delivery of computing services to customers.”

Today’s article explained that, “In technology, there is reality, and then there is start-up reality. Even as the tech industry is undergoing a reset in expectations driven by global economic concerns, many start-up executives say their companies are doing just fine. Those layoffs that are starting at small private tech companies? That decline in start-up funding? Maybe some start-ups are feeling it, but not their own.”

Ms. Benner explained that, “Entrepreneurs’ confidence levels remain buoyant even though investors are telling them that the change from go-go-go times to merely go-go will have consequences.

“The message from Rory O’Driscoll, a partner at Scale Venture Partners, that entrepreneurs should be more careful is often ignored.”

The Times added: “For now, start-up entrepreneurs are operating much as they did during the recent boom times.”

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Minnesota Farmland Values Soften

Tom Meersman reported yesterday at the Minneapolis Star Tribune Online that, “Farmland prices in Minnesota continue to soften as prices for corn and soybeans remain relatively low and the outlook for 2016 appears to offer marginal profits for many crop growers.

“The changes are part of a pattern of falling values for farmland in much of the central U.S., according to several reports published within the past week.

“An analysis by the University of Minnesota Department of Applied Economics found that the average median price of farm real estate in Minnesota dropped 5.5 percent during the first nine months of 2015, from $4,878 to $4,611 per acre. The median is the price at which half of the transactions are higher and half are lower, and is considered a good measure to gauge price trends at the state or regional level.”

Mr. Meersman explained that, “Cash payments for Minnesota corn generally have stuck between $3.25 and $3.60 per bushel in recent months, below the cost of production for many farmers.”

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GMO Labeling Bill- Senate Ag Committee

AP writer Mary Clare Jalonick reported yesterday that, “A Senate committee is moving forward on legislation that would prevent states from requiring labels on genetically modified foods.

“Vermont is set to require such labels this summer. Senate Agriculture Chairman Pat Roberts of Kansas released draft legislation late Friday that would block that law and create new voluntary labels for companies that want to use them on food packages that contain genetically modified ingredients. The Senate panel is scheduled to vote on the bill Thursday.”

The AP article explained that, “The bill is similar to legislation the House passed last year. The food industry has argued that GMOs, or genetically modified organisms, are safe and a patchwork of state laws isn’t practical. Labeling advocates have been fighting state-by-state to enact the labeling, with the eventual goal of a national standard.

“Senators have said they want to find a compromise on the labeling issue before Vermont’s law kicks in.”

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EPA to Seed Companies- On GMO Rootworm Resistance, Enhance Defenses

Jacob Bunge reported yesterday at The Wall Street Journal Online that, “The U.S. Environmental Protection Agency said it would require seed companies to enhance defenses against bugs resistant to anti-pest genes in biotech corn, but it stopped short of adopting stricter proposals to escalate the fight against crop pests.

“The EPA’s plan, outlined on Thursday, requires Monsanto Co. and other companies producing genetically modified seeds to investigate corn fields suspected of harboring corn rootworms that have developed resistance to GMO corn—and to implement a response.

“But the agency’s plan doesn’t include requirements to switch some bug-afflicted fields to different crops, which was part of an earlier EPA proposal that drew complaints from farm groups and seed companies.”

Mr. Bunge pointed out that, “Under the EPA’s plan unveiled Thursday, seed companies would be required to investigate reports of suspected resistance, replacing a previous strategy that randomly sampled rootworm populations around the Corn Belt. If a company confirms there are resistant rootworms in a field, it will have to implement a response for a half-mile area around the site, the EPA said.

“Options for such response plans include switching fields over to other crops like soybeans, planting non-GMO corn and using soil-based insecticide, or planting GMO corn that produces multiple pest-killing proteins. ‘The framework allows for a variety of options to be utilized, provided they are the most effective to address the situation,’ an EPA spokesman said.”

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Shareholders Increasingly Speaking Up

An article in today’s Wall Street Journal reported that, “Investor Jeffrey Osher sat on his holdings in prepaid-debit-card issuer Green Dot Corp. for three years before he lost his patience.

“In December, after a string of disappointing earnings reports that left the company’s shares down sharply, the hedge-fund manager met with the board and asked directors to fire founder and Chief Executive Steven Streit, according to people familiar with the meeting. When the board refused, Mr. Osher’s Harvest Capital Strategies LLC did something it had never done before: It publicly threatened to run a campaign to oust the company’s directors.

“Those moves put Mr. Osher into a newly emerging class of shareholders: Typically passive investors who are adopting, sometimes reluctantly, the tactics of activists.”

The Journal article explained that, “The rise of these ‘reluctavists’ or ‘suggestivists,’ as they are sometimes called, reflects the success of vocal shareholders in forcing corporate change, as well as broader shifts in the investing world. Changes in securities laws and an expansion of investor rights have encouraged shareholders who once deferred to management to speak up when they are unhappy.

“First-time activists ran 49 campaigns against U.S. companies last year, up from 36 in 2014 and 15 in 2011, according to Activist Insight. Some 54% of all campaigns were launched by what the researcher deems ‘occasional’ activists, up from 30% in 2011.”

Today’s article added that, “‘These are long-term investors who have reached a point where they see opportunities for value that the company isn’t pursuing and after years of underperformance they are putting themselves out there,’ said Andrew Freedman of law firm Olshan Frome Wolosky LLP, which represents activist investors, including some first-timers. ‘They aren’t just short-term value seekers. They are the long-suffering shareholder.’

“Whether this new crop of investors will find the same success as dedicated activists remains to be seen.”

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