Minding Your Business

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

Law360 Expert Analysis: How To Navigate The Coming Antitrust Policy Tests

The FTC has announced penalties in two separate enforcement actions totaling almost $2 million for alleged violations of the HSR Act. The matters: U.S. v. Clarence L. Werner c/o Werner Enterprises, Inc.; and U.S. v. Biglari Holdings Inc. include claims of failures to file notification under the HSR Act and failures to observe the required waiting period prior to acquiring certain voting securities. HSR Act compliance should remain front of mind for investors and dealmakers, as failures to file when required could have significant financial and transactional implications.

Read the full article on Law360.

What Took You So Long? District Court Denies Leave to Amend Patent Infringement Contentions Finding Plaintiff Didn’t Act Diligently

The United States District Court for the District of Massachusetts recently denied a motion by Philips North America seeking leave of the Court to amend its claims of patent infringement against Fitbit to include several additional products finding Philips did not act diligently. This case serves as a reminder of the importance of timeliness in any litigation, but especially when a party’s diligence is a factor the court must consider. Continue Reading

Ecuador Welcomes Arbitration (Back)

2021 marked a new chapter for arbitration in Ecuador: after re-joining the International Centre for Settlement of Investment Disputes Convention in June, Ecuadorian Executive Decree No. 165 in August introduced Regulations to add to and improve the existing legal framework for arbitration as it results from the Ecuadorian Arbitration and Mediation Law (“AML”).  The AML, which was enacted in 1997 and amended in 2015, had been criticised for its lack of clarity. Continue Reading

When Nondisclosure Agreements and Pharmaceutical Trade Secrets Intersect

In the United States, the scale of trade secret theft is estimated to be between $180 billion and $450 billion annually. Among the targets of this theft are pharmaceutical companies, which are some of the most research-intensive institutions in the world. Pharmaceutical research generally requires extensive work and often generates proprietary data that is pivotal to shaping pharmaceutical development. Because that data may be very attractive to threat actors, pharmaceutical companies employ various measures to protect their proprietary information, these measures may sometimes fall short. A November 2021 trade secret misappropriation suit brought by Venn Therapeutics (“Venn”) against Corbus Pharmaceuticals (“Corbus”) in the District Court for the Middle District of Florida highlights the issues that can arise despite a company’s best efforts to protect its trade secrets.

Read the full post in Proskauer’s in Life Sciences blog.

NY Court Re-Affirms Privilege Protection for Personal Emails Sent by Law Firm Partner on Firm Email Account

Citing new deposition testimony, actor Justin Theroux in a recent motion asked the New York Supreme Court to reconsider its December 2020 denial of Theroux’s motion to compel production of emails that his neighbor, Norman Resnicow, a law firm partner, sent to his personal lawyer about the parties’ quarrel (related to the New York City co-op where they both reside) using his law firm email account.  Continue Reading

What the Omicron Variant Could Mean For Price Gouging Enforcement in New York

New York Governor Kathy Hochul has declared a disaster emergency for the state through January 15, 2022 in the wake of rising COVID-19 cases in the state and the newly identified Omicron variant. According to The Wall Street Journal, New York is the first state to declare a state of emergency in response to Omicron, although many states have remained under declared states of emergency since the beginning of the pandemic. New York allowed its previous declared state of emergency to expire on June 24, 2021. Continue Reading

Without Equitable Monetary Relief, No Need for Asset Freeze or Receivership to Preserve Resources, and More Takeaways from the Eleventh Circuit

The Eleventh Circuit’s opinion last month in FTC v. On Point Capital Partners LLC, et al., clarifies the ramifications of the Supreme Court’s ruling in AMG Capital Management regarding the prohibition of equitable monetary relief under Section 13(b) of the Federal Trade Commission Act (“FTCA”).

Section 13(b) of the FTCA authorizes the Federal Trade Commission to obtain a preliminary injunction and, in proper cases, a permanent injunction in federal court against any person, partnership, or corporation that the Commission believes is violating, or is about to violate, any provision of law enforced by the Commission. Continue Reading

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