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.

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

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. 

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.

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 commercial activities.

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 of Amazon’s affiliates, and Integrity Staffing Solutions, Inc., seeking compensation under the Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Cons. Stat. § 333.101 et seq. for time spent undergoing a mandatory security check after their shifts had already ended. The plaintiffs worked in a warehouse in Pennsylvania where they performed tasks related to fulfilling customer orders placed on Amazon. At the end of their shifts, the plaintiffs were not allowed to immediately leave the premises, as they were required to remain at the warehouse to proceed through a screening process that included walking through a metal detector. If the alarm went off, the worker would be subject to a secondary screening process where a security guard would search the worker’s bags and personal items. The plaintiffs alleged that the entire screening process could take up to twenty minutes, or even more if there were delays.  The defendants did not compensate the workers for any of this time.