Our
May 23,
June 28,
July 13 and
August 3 posts discussed the First Circuit's January 12
decision in Mission Product Holdings, Inc. v. Tempnology,
LLC.1 and, most recently, the pending petition for
certiorari.2 Since our last post, the respondent filed
its response to the petition in opposition to granting
cert.,3 giving several reasons why cert. should be
denied.
It is common knowledge that it is more likely that the Supreme
Court will grant cert. where decisions of the Courts of Appeals of
different circuits are in conflict in order to resolve the
conflict. The Opposition Brief discounts the circuit split touted
by petitioner. It describes the split as consisting solely of the
Seventh Circuit's 2012 Sunbeam decision and the First
Circuit's 2018 Tempnology decision and characterizes this split
as "neither deep nor long-standing."4 That
characterization depends on the exclusion of Lubrizol from
the equation, which respondent does with two points:
Lubrizol was
