Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

No TKO: California Judge Refuses to Disqualify Counsel from Patent Litigation

Last week, a federal judge in California denied the plaintiff’s motions to disqualify the defendant’s counsel, finding that the firm’s former representation of the plaintiff was not sufficiently recent, substantial, or substantively related to the firm’s current representation of the defendant to warrant disqualification.

The plaintiff, IPS Group, Inc., brought two related lawsuits against Duncan Solutions, Inc., for patent infringement — one in July 2015 and another in March 2017. In June 2017, the law firm Mintz Levin Cohn Ferris Glovsky and Popeo P.C. (“Mintz”) joined the defense teams representing Duncan in both matters. IPS Group made two “virtually identical” motions in July to disqualify Mintz in each case, arguing that (1) IPS Group was a current client of Mintz, so concurrent representation of IPS Group and Duncan was a breach of the duty of loyalty, and alternatively, (2) IPS Group was a former client of Mintz, who had obtained confidential information from IPS Group material to Mintz’s current representation of Duncan. Continue Reading

Chambers and Partners Releases Pharmaceutical Advertising 2018 Guide

Chambers and Partners released its first ever Pharmaceutical Advertising 2018 guide, authored by Proskauer partners Lawrence Weinstein and Alexander Kaplan with assistance from several litigation associates. The guide provides a comprehensive look at the laws and regulations governing pharmaceutical advertising in various markets, and provides important developments in the most significant jurisdictions and legal commentary on key issues for businesses.

Read the full Chambers guide here.

eDiscovery Includes Electronic Vehicle Data and Possible Sanctions for Spoliation

Discovery of relevant material extends far beyond documents created on personal computers. Discoverable data exists in many forms, including electronic data found in vehicles such as tractors used for tractor-trailers. This type of data is also subject to spoliation sanctions if not properly preserved. A recent case in the Northern District of Alabama, Barry v. Big M Transportation, Inc., addressed whether sanctions were warranted when electronic vehicle data was not preserved for a tractor-trailer that was involved in an accident. Continue Reading

Consider Whether the Promise of a Bird in the Hand is Better Than Two in the Bush

When drafting settlement agreements, most lawyers give due attention to the scope of any release clause. And for good reason: for defendants, the extent to which the release protects against future litigation is critical, and for plaintiffs, the extent to which it preserves future claims may be equally critical. But lawyers – and particularly those representing plaintiffs – should also give thoughtful attention to the timing of a release clause in any settlement agreement. Otherwise, a plaintiff may find that its “compromise” was nothing more than a unilateral agreement to reduce the value of its claim. Continue Reading

The Supreme Court Enters the Digital Age

Electronic filing is coming to the U.S. Supreme Court! Effective November 13, 2017, amendments to the Supreme Court’s rules take effect that require represented parties (and their amici) to submit petitions, briefs, and most other filings through the Court’s electronic filing system. The Rules explain that the new e-filing requirements are “[i]n addition to the filing requirements” already set forth in the Rules. Accordingly, parties and their amici will still be required to submit forty copies of their briefs on paper in booklet form, and they now must additionally submit one paper copy on 8.5 x 11 inch paper (in case the Clerk’s office needs to scan the brief for any reason). The paper submission remains the “official filing” for purposes of determining timeliness, but e-filing is supposed to occur “contemporaneously” with the paper filing. Pro se parties will continue to file submissions exclusively on paper; those submissions will be scanned by the Clerk’s office and posted on the Court’s web site. Continue Reading

California Defendants Beware: Failing to Compel Arbitration Against Named Plaintiff Could Have Far-Reaching Consequences

California defendants in class actions should be wary of seeking a strategic advantage by litigating before seeking to compel arbitration. The Court of Appeal held recently in Sprunk v. Prisma LLC  that a defendant in class action litigation can waive its right to seek arbitration against absent, unnamed class members by deciding not to compel arbitration against the named plaintiff within a reasonable timeframe. Continue Reading

Concrete Enough to Stand: Ninth Circuit Upholds FCRA Claims in Spokeo

On August 15, 2017, the Ninth Circuit delivered the latest episode in the Robins v. Spokeo saga, reaffirming on remand from the Supreme Court that plaintiff Robins had alleged an injury in fact sufficient for Article III standing to bring claims under the Fair Credit Reporting Act (FCRA).

Robins had brought a putative class action against Spokeo, which operates a “people search engine” that compiles consumer data into online reports of individuals’ personal information.  Robins alleged that Spokeo had willfully violated the FCRA’s procedural requirements, including that consumer reporting agencies must “follow reasonable procedures to assure maximum possible accuracy of the information” in consumer reports, because Spokeo’s report on Robins allegedly listed the wrong age, marital status, wealth, education level, and profession, and included a photo of a different person.  According to Robins, the inaccuracies in the report about him harmed his employment prospects and caused him emotional distress. Continue Reading

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