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Addressing an issue of first impression, the Second Circuit held recently that bankruptcy courts have inherent authority to impose non-nominal civil contempt sanctions, including per diem sanctions and attorneys’ fees, arising out of an attorney’s failure to comply with the bankruptcy court’s discovery orders.

The Class Action Fairness Act (“CAFA”), was enacted to make federal courts the primary venue for class action litigation. It did so by modifying the usual jurisdictional requirements of the diversity jurisdiction statute. Under CAFA, federal courts may exercise removal jurisdiction over state law class actions originally filed in state court so long as there is “minimal” rather than “complete” diversity, and the amount in controversy is greater than $5 million.

On June 8, 2023, the U.S. Supreme Court issued its decision in Jack Daniel’s Properties, Inc. v. VIP Products, LLC and provided some clarity as to the applicability of the “Rogers test,” a doctrine that grapples with the interplay of trademark law and the First Amendment. The case involved a trademark dispute between Jack Daniel’s Properties, the maker of the famous whiskey, and VIP, a dog toy company that makes and sells a product called “Bad Spaniels.” The Bad Spaniels squeaky toy is in the shape of a whiskey bottle and has a black label with white font similar to Jack Daniel’s; in place of “Old No. 7 Brand Tennessee Sour Mash Whiskey,” the toy reads, “The Old No. 2 On Your Tennessee Carpet.” After VIP initially filed suit against Jack Daniel’s seeking declaratory judgment that the product did not infringe on Jack Daniel’s trademarks, Jack Daniel’s brought counterclaims under the Lanham Act for trademark infringement and trademark dilution.

A three-way circuit split has long plagued the realm of attorney-client privilege on how to treat communications that implicate both legal and non-legal concerns (known as “dual-purpose communications”). Namely, if a lawyer communicates with their client, simultaneously providing legal advice and business advice, is the entire communication protected by the attorney-client privilege? How substantial must the legal advice be for the communication to be privileged? The Supreme Court recently had the opportunity to resolve this split, but in a strange turn of events, dismissed the previously granted writ of certiorari as improvidently granted two weeks after hearing oral argument. Before delving into the oral argument and subsequent dismissal by the Supreme Court, it is worth reviewing a brief history of the existing circuit split.

Defendants on the losing side of a class certification order were recently provided with a roadmap of how to challenge a district court’s analysis on appeal.

On April 12, 2023, the United States Court of Appeals for the Seventh Circuit vacated and remanded a district court’s class certification order because it failed to “rigorously analyze” the prerequisites to certify a class under Federal Rule of Civil Procedure 23. The appellate court held that the district court abused its discretion by failing to “go beyond the pleadings” – in other words, the plaintiffs’ allegations – in its analysis. 

What began as a trademark infringement dispute concerning electronic cigarettes has evolved into a never-ending series of discovery issues, and lessons about the limits of Federal Rule of Evidence 502 and privilege waivers. DR Distributors, LLC filed its initial complaint against 21 Century Smoking, Inc and its owner, Brent Duke, in September 2012 alleging trademark violations. The defendants filed their counterclaim also alleging trademark violations about a month later. Though fact discovery was supposed to have ended in 2015, the parties continued to assert problems with discovery seven years later. The latest issue presented before the U.S. District Court in the Northern District of Illinois in this case was whether the defendants waived the marital communications privilege by disclosing certain communications during discovery. In its decision finding that the privilege had been waived, the Court described the limited application of Rule 502 and warned against the dangers of arguing that a disclosure was “inadvertent” without providing any explanation of how the privilege review was performed.