Failure to Challenge Venue Before TC Heartland Does Not Waive Venue Objection​

Following the Supreme Court decision in TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514 (2017), the court granted defendants' motions to transfer for improper venue and rejected plaintiffs' arguments that defendants waived their defense. "Federal Circuit precedent clearly foreclosed the venue defense. It would be inequitable to expect Movants to have objected to venue, especially where the Supreme Court had already denied certiorari on the exact question in [VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574 (Fed. Cir. 1990)] itself. . . . Both reconsideration of certiorari and reconsideration of merits rulings are, strictly speaking, possibilities, so arguments directed to those results are, strictly speaking, available. But in fairness, neither possibility is great enough upon which to base a finding of waiver where circuit precedent forecloses an argument, particularly in cases such as this one where the relevant circuit is the only one with jurisdiction over the issue, such that even the possibility of a future circuit split does not exist."

CG Technology Development, LLC et al v. FanDuel, Inc., 2-16-cv-00801 (NVD July 27, 2017, Order) (Jones, USDJ)