The recent unpublished decision of Dice Corporation v. Bold Technologies demonstrates some common pitfalls and offers practical insight to advocates who litigate complex commercial disputes. The case involved an intellectual property dispute between software suppliers that arose when a customer switched suppliers. The petitioner, Dice, alleged that its competitor, Bold Technologies, stole its intellectual property while transitioning the customer onto its own platform. Naturally, this basic dispute involved complex issues concerning software, source code and data extraction. The trial court found for Bold Technologies on summary judgment and Dice appealed, but the Court rejected its appeal.
The opinion, written by Judge Gibbons, is replete with reminders that the Sixth Circuit will not decide issues that are presented for the first time on appeal. “It is well-settled that this court’s function is to review the case presented to the district court, rather than a better case fashioned after an unfavorable order.” Related to the preservation of issues for appeal, the opinion also provides helpful clues to advocates who litigate complex commercial disputes, to wit, that the best advocacy is both simple and straightforward.
“It is the parties, in our adversarial system, who frame the issues before the court.” In complex commercial disputes, it is easy to get lost in technical minutiae. But the advocate’s job is still the same. And emphasizing a simple trail of logic that closes all the loops not only leaves a clean record for appeal, it guards against confusion and helps the decision maker(s) come to your position. For example, the Court comments that, “Other than a generalized explanation of what the receiver drivers do, Dice has failed to explain whether the receiver drivers derive economic value from their secrecy.” Likewise, the Court pointed out that “[Dice] provided hundreds of pages of incomprehensible computer code without explanation other than Clifford Dice’s claim that ‘Bold’s extraction program utilized Dice source code in the conversion process.’” And finally, the Court remarked that “the district court was not required to comb through the uncited record to make sense of Dice’s claim and, at the very least, Dice was obligated to explain the factual basis for its claim to the district court.”
In addition to simple, the best advocacy in complex commercial disputes is also straightforward. Sometimes, an advocate’s presentation may remain obscure for various reasons. It is debatable whether that is ever a good approach. But in complex commercial disputes, ambiguity is more risky because – unlike a slip-and-fall case or a First Amendment free speech case – the decision maker(s) may not have the relevant life experience to make concrete what is left ambiguous. And not only is the decision maker(s) unlikely to figure out their own reason why you should win, they probably will not give you the benefit of the doubt: “Although Dice’s briefing on this claim is opaque, we are skeptical whether Dice raised this claim before the district court.”