Docket entry 218, 2 February 2026 · source · PDF · 36 pages
Docket text. MEMORANDUM AND ORDER: the following language is stricken in Lexos's response to Overstock's summary-judgment motion: Doc. 193 at 38 and 39, the entire paragraph under the heading "1. 'Modify... to' Does Not Imply Exclusivity& quot; and the citations on page 39 to Baldwin Graphic Systems, Inc. and AstraZeneca. All five Lexos attorneys are publicly admonished for violating Fed. R. Civ. P. 11(b) as set forth in this Order. The individual attorneys are further sanctioned under Rule 11. See order for further details. Signed by District Judge Julie A. Robinson on 2/2/2026. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.)(msb)
Lexos’s attorneys responded to the Court’s Order to Show Cause with declarations, and the Court is prepared to rule on whether they should be sanctioned under Rule 11. As described more fully below, the Court finds that all five Lexos attorneys violated Rule 11(b) by signing filings that included fabricated and misrepresented legal authority. The Court releases counsel Michael Doell from further sanctions.
Russ (Doc. 194) contains a litany of problems: (1) nonexistent quotations; (2) nonexistent and incorrect citations; and (3) misrepresentations about cited authority. Overstock submitted a reply brief disclosing the defective citations, quotations, and statements of authority,16 and Mr.
16 Doc. 200-1 (providing a table of fabricated and misleading case citations in Plaintiff’s response brief to the motion to exclude Dr. Russ).
2006).37 There are multiple problems with this authority. First, Lexos provided the following quotation from this case in an explanatory parenthetical: “Expert testimony should not be excluded simply because the expert applied an incorrect claim construction, so long as the expert’s analysis can be understood and evaluated in light of the court’s proper construction.”38 This quotation does not exist. Second, Lexos cited this case for the proposition that “[t]he Federal Circuit has consistently held that expert opinions based on even partially incorrect constructions may be admissible where the expert’s methodology remains sound.”39 But Liquid Dynamics does not support this proposition.
Cir. 2008) with the following quotation in an explanatory parenthetical: “The use of ‘comprising’. . . renders the claim open-ended—meaning that the claim does not exclude additional elements or steps.” 48 This quotation does not exist. 45 450 F.3d 1117, 1123–27 (10th Cir.
Cir. 2004) with the following quotation in an explanatory parenthetical: “The open-ended term ‘comprising’ permits the inclusion of other steps or components.”49 This quotation does not exist. 11.
11. Lexos purported to quote the earlier-cited Microsoft Corp. case as follows: “[T]he question of whether the expert is credible or whether his theories are correct given the partial reliance on an incorrect claim construction is for the jury to decide after cross-examination.” 50 This quotation does not exist. Part III.D.1 of the summar y-judgment response repeats the incorrect quotations from Cordis, 51 Baldwin Graphic Systems, Inc.,52 and AstraZeneca AB.53 C.
He indicated that “[t]hese overlapping personal situations weighed heavily on [his] time, attention and emotional state during the time of original filing,”60 and although he acknowledged that this does not excuse his conduct, he claimed that it was unprecedented and that he did not intend to file the document without first verifying the citations. The proposed corrected response brief would have: (1) deleted the nonexistent citations and quotations; (2) corrected the incorrect citations; (3) deleted the offending citations from the table of authorities; (4) added one new citation; and (5) added text to shore up Lexos’s arguments. 57 Id. at 3 n.1.