Wednesday, June 1, 2011

Supreme Court Speaks About Willful Blindness

The Supreme Court issued an opinion in the case of Global-Tech Appliances, Inc. v. SEB S.A., a civil patent infringement case. A key issue was whether under 35 U.S.C. s 271(b), a party "must know that the induced acts constitute patent infringement." This case, however, is extremely important for the white collar practitioner and other criminal law practitioners who have cases with willful blindness issues. Willful blindness has been a recent concern in the white collar realm because a CEO, CFO, or other corporate executive may be claiming that he or she did not know about the questioned criminal conduct.

In Global Tech, the Court outlines its position for purposes of both criminal and civil law stating that "[o]ur Court has used the [Model Penal] Code's definition as a guide in analyzing whether certain statutory presumptions of knowledge comported with due process. . .  And every Court of Appeals -- with the possible exception of the District of Columbia Circuit ...-- has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes." (citations omitted)  The Court later states:

"While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts. . . . By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing, see ALI, Model Penal Code § 2.02(2)(c) (1985), and a negligent defendant is one who should have known of a similar risk but, in fact, did not, see § 2.02(2)(d).

"The test applied by the Federal Circuit in this case departs from the proper willful blindness standard in two important respects. First, it permits a finding of knowledge when there is merely a "known risk" that the induced acts are infringing. Second, in demanding only "deliberate indifference" to that risk, the Federal Circuit's test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities."

Justice Kennedy dissents. He states, "[h]aving interpreted the statute to require a showing of knowledge, the Court holds that willful blindness will suffice. This is a mistaken step. Willful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy."  He also states: "[t]he Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue."

Tim O'Toole and I will be speaking more about this case and issues of willful blindness at the upcoming NACDL Conference in Tahoe here.

(esp)(w/ a hat tip to Tim O'Toole)

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