Minding Your Business

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

$264 Million Settlement in EpiPen Price Gouging Litigation

On July 11, 2022, the United States District Court for the District of Kansas approved a $264 million settlement against Mylan and certain of its subsidiaries in the case In Re EpiPen (Epinephrine Injection, USP) Marketing, Sales Practices, and Antitrust Litigation in a matter broadly tagged as price-gouging litigation. Plaintiffs filed class action lawsuits against Mylan, the owner of EpiPen, and Pfizer, Inc., a manufacturer and seller of EpiPen, alleging, “anticompetitive conduct including, among other things: engaging in a ‘hard switch’ and selling EpiPens only in packs of two; entering into discount agreements with schools that were conditioned on the schools not purchasing competing products; securing multiple overlapping patents on minor changes to the EpiPen and engaging in ‘sham’ patent litigation to forestall generic competition; and paying excessive rebates to commercial insurance companies, pharmaceutical benefits managers, and state-based Medicaid agencies conditioned on those companies and agencies not reimbursing the use of competing products.” The plaintiffs claimed that the defendants broke various state antitrust laws and the federal civil RICO statute. The suits, filed in the Northern District of Illinois, the District of Kansas, the District of New Jersey, and the Western District of Washington, were joined in August of 2017 in the District of Kansas. Continue Reading

Changes to Rules Governing Expert Testimony Imminent

Last month, the Advisory Committee on Evidence of the Judicial Conference of the United States’ Committee on Rules of Practice and Procedure voted to unanimously to recommend certain amendments to Federal Rule of Evidence 702, which governs the admissibility of expert witness testimony.  This vote signals imminent changes that could significantly affect federal practitioners’ requirements to demonstrate their experts’ reliability.

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Kardashian’s ‘SKKN by Kim’ Brand Facing Legal Uncertainty

Kim Kardashian has been hit with a lawsuit by New York-based Beauty Concepts LLC over Kardashian’s recently launched skincare line, “SKKN by Kim.”  Beauty Concepts filed a complaint in the Eastern District of New York against Kardashian, her business entity Kimsaprincess Inc., and beauty company Coty Inc. on Tuesday, alleging that SKKN by Kim uses branding “highly confusingly similar” to Beauty Concepts’ own skincare line, “SKKN+”.  The complaint further alleges that Beauty Concepts has priority of use over the letters “skkn” due to the company’s consistent use of the mark “SKKN+” since at least August 2018.
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Copyright Office Recommends No New Copyright Protections for News Publishers in the United States

Bucking a legal trend in Europe, the United States Copyright Office recently recommended against adopting additional copyright-like protections for news publishers that would require online news aggregators to pay publishers for news content shared on their platforms.  In a report published on June 30, 2022, the Office found such protections to be unnecessary in light of copyright protections currently held by publishers in connection with their works, and noted that any change to U.S. copyright law that would increase publishers’ ability to block or seek compensation for the use of their works by news aggregators would “necessarily avoid or narrow limitations on copyright that have critical policy and Constitutional dimensions.”  Instead, the Office suggested that funding challenges faced by publishers would be better solved through other legal means, such as changes to competition law or tax policy.

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FTC Report Warns Against Overconfidence in AI Tools to Combat Online Harm

Last month, the FTC issued a report to Congress advising governments and companies to exercise “great caution” in using artificial intelligence (“AI”) to combat harmful online content.  The report responds to Congress’s request to look into whether and how AI may be used to identify, remove, or otherwise address a wide variety of specified “online harms.”  Among the “harms” covered by Congress’s request were impersonation scams, fake reviews and accounts, deepfakes, illegal drug sales, revenge pornography, hate crimes, online harassment and cyberstalking, and misinformation campaigns aimed at influencing elections.

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Infant Formula Shortage Update

Lawmakers in Washington, D.C., and California have taken recent steps to further protect the infant formula market from price gouging. On June 7, 2022, the D.C. Council passed the “Infant Formula Consumer Protection Emergency Act.” The Act, which will remain in effect for 90 days, targets companies selling baby formula at extremely high prices. The Act provides that companies may be subject to a $5,000 fine, for first-time offenses, or a $10,000 fine, for subsequent offenses, if they sell infant formula at a price greater than 20% of what they previously sold substantially similar formula in the District over the 90-day period prior to February 17, 2022. If the retailer never sold a substantially similar formula product in that 90-day period, they would face fines if they sell infant formula at a price greater than 20% of the average price of substantially similar infant formula product from substantially similar retailers. Continue Reading

Supreme Court Rules on the Requirements for a Waiver of the Right to Arbitrate

The United States Supreme Court recently resolved a circuit split regarding when a party has waived its contractual right to arbitrate by participating in litigation prior to seeking to arbitrate a dispute. In Morgan v. Sundance, Inc., the Court held that the party seeking to resist arbitration does not need to show that it has been prejudiced by the other party’s delay in seeking to compel arbitration. Notably, and in holding that “the Eighth Circuit erred in conditioning a waiver of the right to arbitrate on a showing of prejudice,” the Supreme Court decided against the use of “custom-made rules, to tilt the playing field in favor of (or against) arbitration.”

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