In what could be a strategic move to ensure its day in court, ROSS Intelligence made good this morning on its vow to continue fighting Thomson Reuters’ lawsuit against it, partially answering TR’s allegations and filing its own counterclaim against TR.

The filings follow news, first reported here Friday, that ROSS will be shutting down its operations Jan. 31 under the pressure of the lawsuit, which has prevented it from raising new financing and made it an unattractive prospect for acquisition.

But the company vowed to continue its legal battle, using insurance funds to pay its litigation costs.

“The company will continue as a going concern so that the facts at the heart of this lawsuit are brought to light and so that Westlaw’s tactics — using litigation as a weapon and stifling competition — do not succeed,” the company said.

While there had been some speculation that TR would withdraw the lawsuit now that ROSS is closing, the filings this morning may block TR from doing that.

Under federal civil procedure rules, a plaintiff may dismiss a lawsuit on its own only before its opponent files an answer. Thereafter, a plaintiff must request a court order of dismissal, and if the defendant objects, the court can grant that dismissal only if the counterclaim can remain pending for independent adjudication.

That appears to mean that even if TR now wanted to withdraw its lawsuit, and even if the judge allowed it, the counterclaim would remain alive.

“Today, we partially withdrew our motion to dismiss as to a portion of the claims brought by Thomson Reuters,” ROSS cofounder and CEO Andrew Arruda told me in an email this morning. “Instead, we answered part of their complaint and filed our own affirmative case. We did so both to reduce the burden on the court and to prevent Thomson Reuters from voluntarily dismissing its case with the ability to refile, thus holding the threat of future litigation over ROSS’s head.”

ROSS’s counterclaims, he said, “bring the action directly to Thomson Reuters, by affirmatively challenging their claim to copyright protection over the headnotes and key number system and their ability to prevent access to public domain judicial opinions. We hope this will begin to efficiently move the case forward to a resolution on the merits. From our inception, ROSS had a singular mission: to democratize legal research. We have never wavered from that mission. This is just the next step on that journey.”

Two New Filings

In this morning’s filings, ROSS filed two documents. One partially withdraws ROSS’s motion to dismiss, only as to TR’s claim for tortious interference with contract, while leaving the motion to dismiss in place as to TR’s claim of copyright infringement.

As I’ve previously reported, the court last month held a hearing on ROSS’s motion to dismiss, but it has not yet issued a ruling.

The second document filed this morning is an answer and counterclaim. The answer responds to the tortious interference allegations, while the counterclaim raises new claims against TR.

With regard to tortious interference, which is based on TR’s allegations that ROSS induced the legal research and writing company LegalEase Solutions to use its Westlaw account to deliver Westlaw data to ROSS en masse, ROSS denies that this happened.

“ROSS denies it illicitly and surreptitiously used a then-Westlaw licensee to acquire access to and copy Plaintiff’s content, and that it is attempting to create a business or competing product by taking for itself any features of Westlaw or ‘Westlaw Content,’ as defined and alleged by Plaintiffs,” its answer says.

Counterclaims Against TR

In its counterclaims, ROSS asks the court to issue a declaratory judgment that TR has no valid copyrights in the Westlaw content.

“It is well established in American law that judicial opinions and federal and state laws, including administrative rules and regulations, are not copyrightable, and must remain public as a matter of due process,” the counterclaim says.

Other aspects of Westlaw, such as its key number system and headnotes, constitute a “method of operation,” which is not eligible for protection under copyright law, ROSS contends.

“In view of the foregoing, Counterdefendants have no legal rights, in copyright or contract, exclusive or otherwise, to restrict access to or publication of the judicial opinions, notes on decisions, headnotes, federal and state laws, including administrative rules and regulations,” ROSS argues.

Purchased Cases Elsewhere

In a second counterclaim, ROSS asks the court to enter judgment declaring that there has been no infringement.

It says that it contracted with LegalEase solely for the purpose of having it provide “researcher-chosen quotes of case law directly from raw judicial opinions in certain legal areas.” It then used those quotes to train its AI search algorithm.

ROSS says that it neither knew which research services LegalEase would use nor instructed it as to which services to use. ROSS says that it explicitly told LegalEase that it did not want any third-party information and that it instructed LegalEase “not to breach any third-party contract” in providing the research.

As for the actual judicial opinions in ROSS, it says that it purchased those from legal publishers Casemaker and Fastcase, not LegalEase.

“ROSS’s use of LegalEase researcher-chosen quotes of case law directly from raw judicial opinions does not infringe any copyrights that Counterdefendants claim to have in any ‘Westlaw Content,’ including because the judicial opinions and direct excerpts thereof are not entitled to copyright protection under the Copyright Act,” ROSS argues.

In a third counterclaim, ROSS asks the court to declare that it has not engaged in tortious interference with the contract between TR and LegalEase.

“ROSS did not direct or in any way encourage LegalEase to breach any third-party contract, including without limitation LegalEase’s contract with Counterdefendants,” the pleading says. “ROSS further did not direct or control LegalEase conduct in connection with researching and obtaining raw judicial opinions.”

Photo of Bob Ambrogi Bob Ambrogi

Bob is a lawyer, veteran legal journalist, and award-winning blogger and podcaster. In 2011, he was named to the inaugural Fastcase 50, honoring “the law’s smartest, most courageous innovators, techies, visionaries and leaders.” Earlier in his career, he was editor-in-chief of several legal publications, including The National Law Journal, and editorial director of ALM’s Litigation Services Division.