New Orleans snowball fight. Yes, that’s right.

Originally published by David Coale.

Icy litigation about the “sno-ball” market in New Orleans led to a series of sanctions motions, requiring the Fifth Circuit to evaluate the potential chilling effect of sanctions. (The opinion cites this informative article about the technical development of shaved-ice treats.) The Court held:

1. “If SnoWizard made material misrepresentations about the validity of various trademarks and patents [in other litigation], Southern Snow should have introduced those claims during its litigation over the validity of those trademarks and patents during the trial”;
2. Alleged “obstructive acts” during those proceedings “are not criminal conduct” and thus “cannot act as a predicate offense for a civil-RICO claim”;
3. Dismissal without prejudice is not a sufficient predicate for a later malicious prosecution claim; and
4. Conversely, the various sanctions and damages theories advanced were “no so obviously foreclosed by precedent as to make them legally indefensible.”

The Court concluded: “”The parties could have shaved down the overwhelming costs in time, expense and scarce judicial resources that this litigation has consumed it they could have abandoned their unrelenting desire to crush the opposition.” Snow Ingredients, Inc. v. Snowizard, Inc., No. 15-30393 (Aug. 15, 2016). (The opinion echoes the similiarly frosty relations between the parties in the recent case of  Yumilicious v. Barrie, involving a dispute about frozen yogurt franchises.)

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