Johnson & Johnson Vision Care, Inc. v. Rembrandt Vision Technologies, L.P.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case.

Issues: (1) Whether a movant must show that it has been denied a full and fair opportunity to present its case by “clear and convincing evidence,” as the U.S. Courts of Appeals for the 3rd, 5th, 7th, 8th, and 11th Circuits have held; or must the movant instead show “substantial interference” in the presentation of its case, as the U.S. Courts of Appeals for the 9th, 10th and District of Columbia Circuits have held; or does the burden on this issue shift under certain circumstances to the party opposing a Federal Rule of Civil Procedure 60(b)(3) motion, as the U.S. Courts of Appeals for the 1st and 6th Circuits have held; or is there no requirement to show any real effect on the proceeding at all, as the U.S. Court of Appeals for the Federal Circuit has held here; (2) whether “misrepresentations . . . of an opposing party” under Fed. R. Civ. P. 60(b)(3) include misrepresentations by an expert witness, unknown to the party or its counsel, as the Federal and 11th Circuits have held, or cannot be attributed to the party without the complicity of the party or its counsel, as the 7th and District of Columbia Circuits have held; and (3) whether “misconduct” under Fed. R. Civ. P. 60(b)(3) includes purely accidental and unintentional omissions in the course of discovery, as the 1st, 5th, 11th, and Federal Circuits have held, or requires a showing of improper or wrongful behavior, as the 6th Circuit has held.