The Volokh Conspiracy

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Does Equity Respect Separate Corporate Personality?


If you're interested in the intersection of corporate law, trademark, accounting for profits, and federal equity jurisdiction, you'll be interested in a new amicus brief that my colleague Paul Miller and I just filed in support of a cert petition in Dewberry Group, Inc. v. Dewberry Engineers Inc. A huge thank you to Donald Burke, John B. Goerlich, and William Weber, all of Willkie Farr & Gallagher, for outstanding work on the brief.

The basic issue is whether "equity" is a talisman that allows a court, in awarding an accounting for profits, to override separate corporate personality. We answer no. And the answer matters not only for the resolution of a circuit split, and not only for the interpretation of the Lanham Act, but also more generally for how federal courts interpret the many federal statutes authoring "equitable relief" or relief according to "principles of equity." As we say near the end of the brief,

The decision below is not a debatable but incorrect application of this Court's established framework for determining the scope of equitable remedial provisions. Rather, the court of appeals simply bypassed that framework altogether.

You can find the can find the cert petition here and our amicus brief here.