Federal Circuit

The lone judge on the Federal Circuit with experience as a federal trial judge is retiring next year. President Biden has nominated a second trial judge, Judge Leonard Stark, from his home state of Delaware to replace her.

Background

Born on July 5, 1969 in Detroit, Leonard Philip Stark received a B.A., an M.A., and a B. Sc. from the University of Delaware in 1991 and received a J.D. from Yale Law School in 1996. After graduating, Stark clerked for Judge Walter Stapleton on the U.S. Court of Appeals for the Third Circuit.

After his clerkship, Stark joined the Wilmington office of Skadden, Arps, Slate, Meagher & Flom as an Associate. In 2002, Stark became an Assistant United States Attorney in Delaware. In 2007, Stark became a U.S. Magistrate Judge for the U.S. District Court for the District of Delaware.

On March 17, 2010, Stark was nominated by President Barack Obama to the U.S. District Court for the District of Delaware. He was confirmed unanimously by the U.S. Senate on August 5, 2010, and has served on the U.S. District Court since then.

History of the Seat

Stark has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit. The seat will open on March 11, 2022 when Judge Kate O’Malley moves to senior status.

Political Activity

While at the University of Delaware, Stark worked as a co-coordinator for Michael Dukakis’ presidential campaign. In 1992, Stark was an alternate delegate for Bill Clinton’s campaign.

Legal Career

After his clerkship on the Third Circuit, Stark joined Skadden Arps in Delaware, working in corporate and securities law. He then spent five years as an Assistant United States Attorney, working in both the criminal and civil divisions. Over the course of his career, Stark worked on two bench trials at Skadden and two jury trials at the U.S. Attorney’s Office.

Among the notable matters Stark handled at Skadden, he was part of the legal team for Cantor Fitzgerald LP, who sued several of its partners for breach of agreement, leading to a forty-day bench trial ending in a ruling in favor of Stark’s client. See Cantor Fitzgerald, LP v. Cantor, Del. Ch. No. 16297, 2000 WL 307370 (Del. Ch. Mar. 13, 2000).

Among his significant cases at the U.S. Attorney’s Office, Stark prosecuted three high-ranking officials with New Castle County, Delaware, for public corruption, racketeering, and fraud. See United States v. Gordon. Stark also handled appellate matters for the office, successfully defending a conviction and sentence for bank robbery before the Third Circuit. See United States v. Faines, 216 Fed. Appx. 227 (3d Cir. Feb. 14, 2007).

Jurisprudence

In 2007, Stark, at only 38, was appointed to be a U.S. Magistrate Judge for the District of Delaware, where he presided over arraignments, bond hearings, and federal misdemeanors, as well as felonies and civil cases where the parties consented to magistrate determinations. In his time as a magistrate judge, Stark handled one civil trial. Among the prominent cases he handled, Stark recommended that a class action challenging misrepresentations in automobile insurance agreements should be dismissed, a recommendation adopted by Judge Joseph Farnan and affirmed by the Third Circuit. See Eames v. Nationwide Mutual Ins. Co., 2009 WL 3041997 (3d Cir. Sept. 24, 2009).

Since his confirmation in 2010, Stark has been a U.S. District Court Judge on the District of Delaware, where he was made a name for himself by carrying an extensive patent docket. For example, Stark currently has 264 active patent cases on his docket and has presided over 31 patent jury trials. In a recent notable ruling, Stark ruled that Mentone Solutions could not patent packet data transmissions, as this was an invalid patent of an “abstract idea.” The Federal Circuit reversed Stark and revived the patent in a November 15 ruling.

Writings

Stark has written extensively throughout his career, including pieces describing the jurisprudence of his mentor Judge Walter Stapleton, see eg., Leonard Stark, Judge ‘The Game By The Rules’: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton, 6 Delaware Law Review 223 (2003), and on presidential history. See Leonard Stark, Review: Mutual Contempt – Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, 85 The American Oxonian 210 (Spring 1998). More interestingly, as a college student, Stark drafted multiple papers on the negative effects of gender roles, particularly in perpetuating homophobia and sexism. See L.P. Stark, Traditional Gender Role Beliefs and Individual Outcomes: An Exploratory Analysis, 24 Sex Roles: A Journal of Research 639 (1991). See also Leonard Stark, Examining the Effects of Gender Roles, 10 Enquiry: Research at the University of Delaware 8 (1989).

Overall Assessment

With extensive experience with patent litigation, it is hard to argue that Stark would not be qualified for the patent-heavy docket of the Federal Circuit. He will likely get a fairly smooth confirmation with bipartisan support.

The Federal Circuit is the only federal appellate court that has never had an African American judge serving on it. President Biden’s nomination of Chicago litigator Tiffany Cunningham, however, fixes this aberration while adding a seasoned patent litigator to the court.

Background

Tiffany P. Cunningham received a B. Sc. from Massachusetts Institute of Technology in 1998 and received a J.D. from Harvard Law School in 2001. After graduating, Cunningham clerked for Judge Timothy Dyk on the U.S. Court of Appeals for the Federal Circuit.

After her clerkship, Cunningham joined the Chicago office of Kirkland & Ellis as an Associate. In 2007, Cunningham became a Partner with the firm. In 2014, she shifted to become a Partner with Perkins Coie, where she currently works.

History of the Seat

Cunningham has been nominated for a seat on the U.S. Court of Appeals for the Federal Circuit. The seat will open on May 31, 2021 when Judge Evan Wallach moves to senior status.

Political Activity

As of 2021, Cunningham has donated relatively rarely to political candidates, making a contribution to President Obama in 2012, and to Hillary Clinton in 2016.^[1]

Legal Career

After her clerkship on the Federal Circuit, Cunningham has spent the next twenty years of her career as a patent litigator, serving this role both at Kirkland & Ellis and at Perkins Coie. Between these two positions, Cunningham has represented plaintiffs and defendants across the country in patent litigation.

For example, while at Kirkland & Ellis, Cunningham was part of the legal team for Caterpillar, Inc. who successfully persuaded the Federal Circuit to reverse a jury decision finding that the company had misappropriated trade secrets and breached its contract.^[2] On the district court level, Cunningham defended Syngenta Crop Protection LLC in a patent infringement lawsuit brought by Bayer Cropscience Inc.^[3]

Similarly, while at Perkins Coie, Cunningham represented Intel Corp. before the Delaware Chancery Court in a dispute over the technology used in Wi-Fi products.^[4]

Overall Assessment

Perhaps because of the court’s specialized docket, nominees to the Federal Circuit don’t usually attract the same degree of controversy as nominees to the other courts of appeals. Cunningham, who has extensive experience in the court’s IP-heavy docket, is unlikely to break this pattern, and will likely be confirmed with broad support.

[1]Center for Responsive Politics, https://www.opensecrets.org/donor-lookup/results?name=Tiffany+Cunningham&cycle=&state=IL&zip=&employ=&cand= (last visited Apr. 3, 2021).

[2]See Caterpillar Inc. v. Sturman Indus., 387 F.3d 1358 (Fed. Cir. 2004).

[3] See Bayer Cropscience, Inc. v. Syngenta Crop Prot. LLC, 979 F. Supp. 2d 653 (M.D.N.C. 2013).

[4] See Jeff Montgomery, Intel Wins Early Round in Chancery Suit Over Sanyo License, Law 360, Mar. 1, 2021. See also Sanyo Elec. Co. Ltd. v. Intel. Corp., C.A. No. 2018-0723-MTZ, 2021 Del. Ch. LEXIS 35 (Del. Ch. Feb. 26, 2021).

The Vetting Room

Judge Leonard Stark – Nominee to the U.S. Court of Appeals for the Federal Circuit

Tiffany Cunningham – Nominee to the U.S. Court of Appeals in the Federal Circuit