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

Category Archives: Appellate

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E-cigs & E-discovery: When Marriage Cannot Save Sloppy Document Productions

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. … Continue Reading

The Seventh Circuit Asks, “What’s Wrong With Having Lots of Patents?”

The answer? Not much, in itself. If one patent is good, 132 is probably fine too. That was Judge Easterbrook’s reasoning in a recent decision addressing indirect purchasers’ antitrust challenge to AbbVie’s so-called “patent thicket” of 132 patents around the blockbuster drug Humira, arguing the sheer number of patents blocked would-be biosimilar competition. But “if … Continue Reading

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 … 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 … Continue Reading

Expanding FSIA to Criminal Cases Would Not Save a Turkish Bank from U.S. Prosecution, Holds the Second Circuit

The Second Circuit recently held that a denial of a motion to dismiss a criminal indictment based on the Foreign Sovereign Immunities Act (“FSIA”) is immediately appealable under the collateral-order doctrine but concluded that even if FSIA did provide immunity from criminal prosecutions, that immunity would not extend to a foreign sovereign’s or its instrumentality’s … Continue Reading

Disgorgement Continues at the SEC

On October 12, 2021, the Fifth Circuit Court of Appeals upheld a disgorgement order issued by the SEC, in—according to the opinion— the first appellate ruling on the topic since the Supreme Court’s 2020 decision in Liu v. SEC. Commercial litigators involved in securities disputes should take note that parallel actions with the SEC can still result in … Continue Reading

Employers Can Keep Employees on Premises Post-Shift—at a Cost

According to a recent decision, employers who want to keep employees on their premises for security checks after they have already clocked out must pay their employees to do so—at least in Pennsylvania. In 2013, two Amazon.com employees filed a putative class action in the Philadelphia County Court of Common Pleas against their employer, certain … Continue Reading

Honesty is the Best Policy: Federal Circuit Affirms Vacatur of Judgment Due to Material Misrepresentations

The United State Court of Appeals for the Federal Circuit recently affirmed a decision by the United States District Court for the Central District of California, setting aside a judgment and injunction in a patent infringement case due to material misrepresentations on the part of the prevailing party discovered after the final judgment was issued. This … Continue Reading

When Is Less Really More for a Patent Licensee?

In Apple v. Qualcomm, Federal Circuit Finds No Standing to Challenge Validity of a Few Patents When Many Were Licensed The development timeline for small-molecule drugs and biologics is lengthy, estimated to take between 10 and 15 years. As a result, pharmaceutical companies need to consider freedom to operate issues long before they receive FDA … Continue Reading

Uber Can’t Compel Arbitration of PAGA Claim According to California Court

On April 21, 2021, the Second Appellate District of the Court of Appeal of the State of California filed an unpublished opinion rejecting Uber’s attempt to enforce an arbitration provision that waived an employee’s right to bring a claim under the California Private Attorneys General Act (PAGA). This statute authorizes “aggrieved employees” to file lawsuits … Continue Reading

The FTC’s Enforcement Power: How AMG Reshapes the Landscape

In a unanimous opinion, the U.S. Supreme Court held that Section 13(b) of the FTC Act does not authorize the Federal Trade Commission to seek monetary relief in the form of restitution or disgorgement, despite the agency’s redoubled practice of seeking such relief under the Act since 2012. The Court’s opinion significantly reshapes the FTC’s … Continue Reading

Circuit Split Deepens as Eleventh Circuit Holds Administrative Feasibility is Not a Requirement for Class Certification

On February 2, 2021, the Eleventh Circuit reversed the district court’s denial of class certification for failure to prove an administratively feasible method to identify absent class members. The Eleventh Circuit’s rejection of administrative feasibility as a prerequisite to certification under Federal Rule of Civil Procedure 23 has deepened a circuit split on the issue.… Continue Reading

No Hearing? No Money: Second Circuit Holds the Government May Not Keep Illegally Seized Rent

The Second Circuit has recently held that the Government must account for rental income it denied a property owner during a period of illegal seizure even though the Government was able to establish probable cause at a post-seizure hearing.  The appeal stemmed from a decades-long sanctions and civil forfeiture action in which the U.S. Department … Continue Reading

Circuit Split Deepens as Eleventh Circuit Rejects “Risk of Identity Theft” Theory of Standing in Data Breach Suit

On February 4, 2021, the Eleventh Circuit affirmed the dismissal of a customer’s proposed class action lawsuit against a Florida-based fast-food chain, PDQ, over a data breach. The three-judge panel rejected the argument that an increased risk of identity theft was a concrete injury sufficient to confer Article III standing, deepening a circuit split on … Continue Reading

Do All Class Members Have Standing For Mere Statutory Violations? The Supreme Court Will Decide

On March 30, the Supreme Court will hear arguments on whether a damages class action, is permitted by Article III of the Constitution or Rule 23 of the Federal Rules of Civil Procedure where the majority of the class has suffered no actual injury. Notably, this is the first time the Supreme Court will apply … Continue Reading

Ninth Circuit Affirms Shareholders Cannot Sue Corporate Officers for Forward-Looking Projections that Don’t Pan Out

It is illegal under the Securities Exchange Act to make false or misleading statements to the investing public about material facts.  At the same time, corporations and their officers must be able to make statements about the company’s future plans, projections, and aspirations without fear of opening themselves up to claims of securities law liability … Continue Reading

Could the FTC Pass the Torch to the Consumer Financial Protection Bureau to Oversee the Fintech Industry?

The change in the White House administration combined with a potential ground-breaking Supreme Court decision may move the oversight and enforcement for marketing by the fintech sector from the Federal Trade Commission (“FTC”) to the Consumer Financial Protection Bureau (“CFPB”).  This would be a tectonic shift.… Continue Reading

Firm’s Computer Policy Doesn’t Undermine Claim of Privilege Over “Private” Communications With Counsel

New York City apartment living can spawn interesting legal disputes when neighbors fail to resolve their grievances amicably and resort to the courts.  Sometimes these disputes bring fanfare as well as opportunities to observe traditional rules of law in action. A recent decision in the ongoing dispute between actor Justin Theroux and his neighbors (Theroux … Continue Reading

Bearing the Books and Records Burden: Delaware Supreme Court Affirms Section 220 Order in AmerisourceBergen

This past year, Proskauer’s private fund litigation blog highlighted a Delaware Chancery case adopting an expansive view in favor of parties seeking information from companies under Section 220 of the Delaware General Corporation Law. The Delaware Supreme Court recently affirmed the Chancery Court’s ruling, providing additional appellate guidance on Section 220 and endorsing limits the Chancery … Continue Reading

Key Takeaways from the Amendment to Rule 30(b)(6)

This past year has brought lots of change, including an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure. Rule 30(b)(6) governs the deposition of an organization (e.g., a corporation or a partnership) and requires, generally, that the notice of such a deposition set out with reasonable particularity the matters of examination.  The … Continue Reading

Insurers Did Not Act As Advertised in “Advertising Injury” Suit

Does coverage for liability arising out of “advertising injury” include copyright infringement suits where the insured was not alleged to have engaged in advertisement? In Superior Integrated Solutions, Inc. v. Mercer Insurance Company of New Jersey, Inc., the New Jersey Appeals Court said “yes,” affirming the trial court’s granting summary judgment for an insured.… Continue Reading
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