If you are interested in the intersection of corporate law, trademark law, profit accounting, and federal securities jurisdiction, you will be interested in a new amicus brief that my colleague Paul Miller and I just filed in support of a cert petition in Dewberry Group, Inc. v. Dewberry Engineers Inc. Huge thanks to Donald Burke, John B. Goerlich and William Weber, all of Willkie Farr & Gallagher, for their excellent work on the brief.
The key question is whether “capital” is a talisman that allows a court, in granting an accounting of profits, to ignore separate corporate personality. We answer no. And the answer matters not only for resolving a circuit split, and not only for interpreting the Lanham Act, but also more generally for how federal courts interpret the numerous federal statutes that create “equitable relief ” or redress according to “principles of equity.” As we say towards the end of the brief,
The following decision is not a questionable but a misapplication of the framework established by this Court for determining the scope of just remedial provisions. Rather, the Court of Appeal simply bypassed that framework altogether.
You can find the certification request here and our amicus brief here.