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Law Journal
Why Supreme Court Cases Are Marathons
From the Wall Street Journal of Sun, 30 Nov 2014 19:40:00 EST
A Halliburton securities suit has made two trips to the high court.
A Halliburton securities suit has made two trips to the high court. Bloomberg News

The Supreme Court on Tuesday will consider a business battle over trademark rights for screws that has been in the courts for more than 16 years, an extreme example of how cases headed for the high court can be matters of endurance.

Though urgent legal matters occasionally catch fire and move quickly through the courts, most require patience. Since the high court’s October 2009 term, 68 cases had legal histories dating back eight years or more, with 32 of those dating back over a decade, according to an analysis by The Wall Street Journal.

The average age for a high court case is nearly six years, but 37% of cases have taken longer since 2009. In most circumstances a case can spend at least three to four years in the courts before resulting in a high-court ruling.

The analysis covers all cases considered by the court except death-penalty and other murder cases in which defendants have challenged their convictions in an additional round of appeals. Such cases can take longer to resolve; two appeals before the court in the current term involve murders from the 1980s.

The court’s current docket includes a lawsuit stemming from the Western energy crisis of 2000-2002 and one focusing on military-contractor billing during Operation Iraqi Freedom in 2005. The justices earlier this year heard a case from three presidential campaigns ago, ruling Secret Service agents couldn’t be sued over how they treated protesters of President George W. Bush when he was running for re-election.

Given the time and money litigants put into cases, emotions can run high by the time the Supreme Court gets involved. That is true in the long-running trademark case before the court this week.

“I’m a man of faith. It was never an option not to proceed until it was over,” says Larry Bogatz, chief executive of B&B Hardware Inc., a Southern California seller of self-sealing, leakproof screws and bolts under the brand name Sealtight.

B&B alleges the Sealtight business, which provides screws for high-technology products from gas meters to automatic insulin injectors, has suffered because an East Texas company confused consumers by selling screws under a similar business name: Sealtite Building Fasteners.

Juries have twice ruled against B&B’s claims of trademark infringement. But the company points to related proceedings at the U.S. Patent and Trademark Office, where a trial board said the Sealtite trademark couldn’t be registered because it likely would cause confusion with Sealtight. The Supreme Court is considering whether the agency’s findings should have been taken into account in the civil litigation.

“It’s an emotional thing from my standpoint. I was just trying to protect my trademark,” says Mr. Bogatz. The youngest of his four children was a small child when court proceedings first started in 1998. That child went off to college this fall.

In Tyler, Texas, Bruce Crouch, president of Sealtite Building Fasteners, says the legal battle “is like a virus. It just never goes away.”

The company says its brand doesn’t cause confusion with Sealtight because it sells a vastly different type of product—construction screws—to a different type of customer. In addition to the winning jury verdicts, it points to a court order that B&B pay Sealtite’s attorney fees because it found B&B manufactured evidence to try to boost its case, a finding B&B denies.

Mr. Crouch says the case has been a burden on company finances and its executives’ workload. “We’re not a huge company and when you’re involved in something like that, it’s all encompassing,” he says.

Most Supreme Court litigants never imagined their cases going so far, but even garden-variety lawsuits can raise complex legal issues. The process, however, can mean a heavy cloud of legal uncertainty that seems as though it might never lift.

“For clients, they can’t understand it, of course. They can’t imagine something taking this long,” says Oregon lawyer Tom Steenson, who represents a Tien Tao minister whose case comes to the high court later this month.

The minister, Kwai Fun Wong, sued the U.S. government on allegations she was wrongly strip-searched and denied vegan meals while in custody for immigration reasons in 1999. The case has bounced back and forth several times in lower courts. It arrives at the high court on the most preliminary of questions: whether the minister filed her lawsuit two months too late.

There is no singular reason why cases hit the slow lane. Civil cases can linger because criminal matters take priority. Some appeals can proceed piecemeal before a final judgment, such as in class-action cases. Sometimes appeals courts just take a long time to rule. And because the Supreme Court only sits nine months each year, litigants can face wait times of a year to 18 months if a case doesn’t land on the court’s calendar at the right time.

“The American court system moves relatively slowly. And of course cases can take unexpected turns,” says Kannon Shanmugam of Williams & Connolly LLP, whose career highlights include a 2009 Supreme Court case on Hawaiian land rights that began its odyssey through the courts in 1994—before he attended law school.

Staying with a case all the way to the high court provides a rare opportunity: The chance to leave a lasting, nationwide mark on the law.

That is a sentiment voiced by lawyers involved in a 12-year-old securities suit that claims Halliburton Co. misled investors from 1999 to 2001. The company denies the allegations and declined to comment.

The case has made two trips to the Supreme Court and is back at a trial court for a new round of proceedings.

The case “has already had an important impact on the law through two Supreme Court decisions protecting investors,” says Carl Goldfarb of Boies, Schiller & Flexner LLP. For the client and the lawyers, “there’s no question it’s at times exhausting,” he says.

Write to Brent Kendall at

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