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Cutera, Inc. Message Board

  • fredtrades fredtrades Dec 18, 2005 7:59 PM Flag

    Summary Judgment explained

    I am not a shareholder of this stock, but I do beleive it has been unjustly punished. When a case opens, the defense requests a summary judgment, and 99 times out of 100, the summary judgment is denied. In other words it does not mean anything. I thought Cramer would have realized that and mentioned that instead of drawing such an ugly picture. I think he just wants to pump his new darling CYRO. I have been monitoring this stock and am tempted to buy but feel it may go down further because people don't understand the legal system. The Law team for CUTR is pushing for an early trial date and I take that as a good sign for CUTR.

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    • A fellow lawyer expressed similar opinion to mine last week. I hope he doesn't mind that I repost below one of his posts that day.

      mass lit -- 1 lawyer's opinion
      by: mkttekgawd (49/M/Palm Springs, CA)
      Long-Term Sentiment: Sell
      12/13/05 09:47 pm
      Msg: 2320 of 2790

      ok, so imho:

      i've read the docket, and i've read a bunch of the pleadings, including the two orders (1) denying cutr's msj and (2) refusing to reopen discovery. apparently the mkt reaction was to both.

      (12) the msj was filed in february. basically, it has been under submission all this time.

      (2) i can't believe any super competent mm would have thot that cutr would win sj.

      (3) the motion to reopen discovery was denied, ironically, in part because cutr complained so much when palomar tried to take the depo of a former cutr emplyoyee, sasnett, who apparently is an adverse wit to cutr. palomar was too late, and so was cutr.

      (4) i have serious questions about cutr's counsels' credibility with this federal judge. palomar's attys are having their way with cutr.

      (5) it feels to me like cutr is trying to stall a trial. their ceo's statement today they want an early trial, notwithstanding

      (6) no trial date is set. the case is 3 years old. we won't see trial before this summer. whatever that uncertainty means for the mkt (we know, don't we).

      (7) the court's opinion on the msj is what everyone expected -- in fact, to win some its defense claims, cutr had to convince the court by clear and convincing evidence, the standard just below 'beyond a reasonable doubt.' not likely in any event. there certainly is a triable issue of fact.

      (8) i'm really concerned about the competency of cutr's counsel. can't say it enough. that does not bode well for trial. they missed certain deadlines, leading me to wonder how much federal court experience they have.

      (9) but, i still can't understand why the street doesn't already know this. today's move was a momentum reaction.

      (10) problem is, how long will you continue to hold? i don't think the news will get better for cutr, until a verdict.

      (11) oh, and the support for cutr's msj was based in part on studies going back 25 years that were so general that they could invalidate my asshole, much less a patent.

      (12) so, maybe the street was sleeping, but the judge's reasoning caused usually intelligent people to rethink this. to put it differently, perhaps cutr's weakness was exposed today.

      (13) unfortunately for me, i will be looking to step off this elevator. gee, it will only cost me 25k. thanks ibd. forget to spell due diligence, and -- here's a lesson, checked out this board and wrongly assumed people who posted mid-day knew something about the procedural posture of the case. lesson earned, lesson learned.

      • 1 Reply to blueskyoc
      • blueskyoc,

        Upon further reading of the two orders and other pleadings filed in the legal case, I am led to concur with your and mkttekgawd's opinions.

        I first assumed CUTR had a very strong legal position against PMTI's lawsuit. My assumption was since CUTR's price kept running up for a long time, PMTI's lawsuit against CUTR must have been weak. That was a bad assumption on my part.

        I also had believed that losing the motion for summary judgment didn't mean anything. So when CUTR dramatically dropped in price just after that news I jumped in long without fully investigating the causes for the drop. Frankly I didn't have the time and I didn't want to miss out on any quick bounce. I was wrong here too.

        I sold last of my long position on Friday. I'm uncertain which direction the stock price will take in the immediate future but feel that there is some more drop in price left in the next 1 month.

        I don't feel comfortable enough to short but feel relieved that I am out of CUTR for now.

        I was an enthusiastic long just after the crash but when prices further fell on Thursday, I felt this stock was just too risky to hold one way or the other. I apologize to any long who may have relied on my posts. Fortunately or unfortunately I'm out of this stock for a while. I wish everyone good luck.

    • There seems to be a number of lawyers on this board including myself. Lawyers on this board have explained reasonably well what a motion for summary judgment entails.

      The issue regarding the denial of motion for summary judgment on 12/12/05 is NOT that the motion was denied as expected but that the court affirmed the STRENGTH OF PMTI's CLAIMS AND WEAKNESS OF CUTR's POSITION in the two (2) orders.


      The court not only denied CUTR's motion but clearly DISAGREED with CUTR's arguments that PMTI's claims are invalid.

      "The Court disagrees" [with CUTR's claims that PMTI's claims 12, 27, and 32 are invalid as anticipated by prior art under 1967 journal article by kuhns.] Pages 2-3.

      CUTR's claim that 12 and 27 were anticipated by a 1983 article by Ohshiro "fails for similar reasons", the Court said. Page 3.

      "Reasonable jurors could find that...." [PMTI's claims are valid.] Page 6.

      "... a factual dispute exists...." Page 7.

      "Again, Cutera is attempting to read a limitation into claim 27 that does not exist." Page 8.

      "The court rejected that [CUTR's] argument at the time and continues to do so." Page 8.

      "... evidence in the record raises a triable issue of fact...." Page 9.

      "... a triable issue of fact exists...." Page 10.

      "The record does, however, contain evidence indicating... Cutera deliberately markets this feature [PMTI's claim] of its CoolGlide products." Page 11.

      Not only did the court deny CUTR's motion for summary judgment but the court clearly indicated that PMTI showed evidence validating its claim against CUTR. This is why this court order was not just a denial of motion for summary judgment.

      Many lawyers heard that CUTR lost the motion and thought it wasn't a big deal. However a closer look into the order reveals the validity of PMTI's claims and the court's concurrence.


      The court ruled that it will not permit CUTR to conduct further discovery action as time for it has well expired.

      "... it [CUTR] had ample opportunity to conduct the depositions, and plaintiffs repeatedly made available for deposition the witnesses whose testimony was required." Page 1.

      "Defenant, who successfully objected to plaintiff's attempt to depose a former Cutera employee after the close of fact discover... cannot now attemp to do the same." Page 1.

      "It [CUTR] cannot thus rewrite the rules." Page 1.

      I seriously question the strength of CUTR's defenses to PMTI's claims. PMTI can very well win the lawsuit. If it does then CUTR's business will come to a halt and will have to pay extensive monetary sums. I also question CUTR's counsel as they cannot even take proper depositions of required witnesses. There's no excuse for this and may be malpractice.

      In legal standpoint, CUTR doesn't look good.

      • 3 Replies to blueskyoc
      • Pay attention to this. I have been on record about this case and am worried about CUTR. A case against CYNO would have a different defense because it is a much different story. PMTI will try to get as much as they can and with the momentum of a win over CUTR they feel others will cave in. They are just doing their job. Another poster was correct in saying this is an "industry issue". That may be correct to some degree but I think there are limits to PMTI claims...just not so in the case of CUTR. I hope a settlement occurs but after 3 years and 10 mil I think it is going to trial. Hope I am wrong.

      • I have read the order and, while it is clear that CUTR failed to carry the day, the spin you put on the court's wording is . . . well "spin". Judges routinely paint the loosing side rather darkly, but they did loose. The fact is the court found numerous question of fact for the jury to decide. And, ultimately it will be up to the jury. Until then everyone is free to babble.

      • You can read the two orders yourself via link below. Look for two documents 1) palomar v cutera motion for depositions.pdf and 2) palomar v cutera.pdf both on 12/12/05.

    • Finally someone with actual brains instead of some of these aholes with shit for brains.
      They all know all thats going to go down. All lawyers i presume!
      Lets wait and see what the real outcome is before predicting so much gloom and doom.
      As far as Cramer goes hes nothing more than a race track tout.. They will tout 12 different horses to 12 different persons and hit 3 in the money. Same goes for the screamer!
      As far as cutr goes they have no backbone or brains either. They should have went after Cramer for his damaging testimony on their company. He had them guilty befor a trail!

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