Elliot Fineman the Industry Network System, Inc. v. Armstrong World Industries, Inc.

How later courts described this case

• concluding that a new trial was necessary in light of trial counsel’s inflammatory remarks during summation, including improperly referring to his own truthfulness, improperly commenting on what he perceived to be the justness of his case, inserting “facts” not in evidence about defendant’s witnesses, explicitly accusing defendant’s witnesses of being “liars” and “perjurers,” making repeated inappropriate references to the defendants’ wealth, and issuing a derogatory, insulting attack upon defense counsel throughout the summation, including by suggesting that defense counsel had made misrepresentations to the jury, and also, because the court’s subsequently issued curative instruction was not sufficient to remove the taint of prejudice
• finding as a matter of law that “absent other relevant factors, 55 percent market share will not prove the existence of monopoly power” and noting “90% is enough, 60% is not likely to suffice, and 33% is insufficient”
• holding that a conspiracy in violation of sec tion 1 does not require the sharing of an identical anticompetitive motive, but requires only a shared commitment to a common scheme that has an anticompetitive objective
• holding a new trial was warranted because plaintiff's counsel “improperly testified to his own truthfulness and trustworthiness, supplied ‘facts’ not in evidence about the credibility of [defendant’s] witnesses, accused [defendant]’s witnesses of being ‘liars’ and ‘perjurers,’ and levied ‘an unadorned, disparaging attack’ upon defense counsel throughout his summation”

Written by the judges who cited it.