By Memorandum Opinion entered by The Honorable Gregory M. Sleet in AT&T Intellectual Property I, L.P. v. Cox Communications, Inc., et al., Civil Action No. 14-1106-GMS (D.Del., July 9, 2015), the Court denied the motion to transfer of defendants after finding that defendant parent company had made prior inconsistent representations to the Court about the principal places of business for its regional entities in prior actions before the Court where they were the parties seeking to transfer venue to the District of Delaware.  The Court found that defendants were “playing fast and loose with the court” and that such conducted constituted sufficient bad faith to justify application of judicial estoppel.  Id. at 3.  The Court found that denying defendants’ pending motion was a narrowly tailored remedy to address the harm.  Id.

The Court went on to explain that, even if it did not apply judicial estoppel, it would reach the same result and deny defendants’ motion to transfer venue because the Court did not find credible the affidavit of defendants’ in-house intellectual property counsel stating that the principal place of business of all defendants was at the parent company’s headquarters in Atlanta, given the inconsistent representations made to the Court about the principal places of business for the same regional entities in prior actions.  Accordingly, the Court denied defendants’ motion.

A copy of the Memorandum Order is attached.

The take away from the decision is that parties should be careful about taking contrary positions and should avoid making what could be found to be inconsistent representations to the Court, unless there is a sound and justifiable reason to explain the change in position.