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

Category Archives: Commercial Litigation

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State Infringement of Copyright Cannot Proceed in Federal Court, Fifth Circuit Says

When there is a right, there is a remedy—or so the maxim goes.  But when a state infringes upon your copyright, such a remedy may be more difficult to obtain.  Just a year ago, the Supreme Court held in Allen v. Cooper that the Copyright Remedy Clarification Act did not abrogate a state’s sovereign immunity, and … Continue Reading

Secret Hair Don’t Care: When NDAs Fail to Protect Trade Secrets

In a significant recent decision, the Federal Circuit reversed a $66 million judgment against L’Oreal USA, Inc. for patent infringement and trade secret misappropriation asserted by Olaplex, Inc. The case arose as a result of L’Oreal and Olaplex entering into negotiations regarding a potential acquisition, pursuant to which Olaplex shared with L’Oreal its confidential information, … Continue Reading

Retail Marketers’ Antitrust Settlement Raises the Question: When Are Exclusive “Staggered” Contracts Anticompetitive?

If you ever noticed a coupon dispenser or colorful cardboard display while walking down the aisle of your local supermarket, there is a good chance it was put there by News Corp.’s News America Marketing (NAM) – in-store marketing’s dominant player.  News Corp.’s dominance, however, was allegedly the result of anticompetitive conduct, according to its … Continue Reading

Court Rules that New York’s New Anti-SLAPP Law Applies Retroactively

On June 30, 2021, pop star Kesha was reportedly handed a victory by a New York state court, which ruled that the state’s new anti-SLAPP legislation applied retroactively to music producer Dr. Luke’s lawsuit, in which he claims Kesha defamed him by allegedly falsely accusing him of rape. The court’s decision means that Dr. Luke … Continue Reading

More Lessons Learned from Theranos: Ensuring Privilege Protections

The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel.  While the … 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

Second Circuit Revisits Transformative Use Test in “Fish Sticks n’ Tater Tots” Music Copyright Case

The Second Circuit recently upheld a ruling that streaming giants Apple, Amazon, and Netflix engaged in fair use, in a case concerning the use of plaintiff musicians’ song in a documentary film available for viewing on defendants’ streaming platforms. In doing so, the Court found the eight-second snippet of the song was performed in a … Continue Reading

The “Truth Hurts”: Judge Rules Lizzo is 100% That [Copyright Owner]

Judge Dolly M. Gee of the Central District of California recently awarded singer Lizzo a major victory in a copyright dispute concerning the artist’s hit song “Truth Hurts.” In her ruling, Judge Gee dismissed with prejudice a claim that Lizzo must share copyright ownership of “Truth Hurts” with the plaintiffs in the case, because the … 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

Another Court Gets on (Hover) Board with Online Marketplace Liability for Defective Products

In two prior blog posts, we covered how online marketplaces, like Amazon, are being held responsible for defective and counterfeit products sold on their platforms.  In the latest development in this space, California’s Court of Appeal (Second Appellate District) determined that Amazon could be held strictly liable for injuries a consumer suffered from a defective hoverboard she … 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

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

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

COVID-19 “Not a Golden Ticket” to Avoid Discovery Obligations

The COVID-19 pandemic has unquestionably had a massive effect on nearly all aspects of American life.  However, now that COVID-19 is and continues to be a known risk, parties should carefully consider when and to what extent it can be invoked to obtain an extension or continuance with respect to discovery obligations.… Continue Reading

Is Your Class Action Settlement Reasonable? A Look Inside the Court’s Approval of the Yahoo! Data Breach Settlement May Shed Some Light

A federal court recently issued a decision approving a class action settlement resolving litigation stemming from five Yahoo! data breaches that occurred from 2012 to 2016 and affected at least 194 million Yahoo! customers. The company agreed to establish a $117.5 million settlement fund and institute numerous business practice changes designed to prevent future data … Continue Reading

Hallmark Win in Greeting Card Trademark Dispute: Court Finds Unauthorized Sale of Cards Meant for Destruction Infringing

It is generally understood that trademark law protects against a third party’s use of your mark or a confusingly similar mark to mislead consumers into thinking goods manufactured by someone else were made by your company. But what happens if those goods were in fact made by your company, but you didn’t authorize their sale?  … Continue Reading

Are Antitrust Claims Against Licensors of Standard Essential Patents Dead On Arrival?

If the September 2020 Continental Automotive Systems, Inc. opinion is any indicator, the answer seems to be “yes,” at least where an alleged violation of fair, reasonable, and nondiscriminatory (“FRAND”) terms and conditions is concerned. Following on the heels of F.T.C. v. Qualcomm Inc., the Northern District of Texas dismissed a complaint in which Continental … Continue Reading

Tolling Statutes of Limitations in Products Liability Cases: Latent Injury or Unknown Cause?

Consider a hypothetical person named Jane, who bought a chair twenty years ago. The chair was designed to help relieve back pain, but it actually made it worse. Because Jane was trying many different remedies, she did not associate the chair with the new pain. Additionally, the problems with the chair were not discovered for … Continue Reading

Happy Prime Day: Trump Directs Federal Government to Pursue Legislation Making E-Commerce Platforms Liable for Counterfeit Sales

In a recent post, we summarized recent developments in litigation and legislative activity concerning whether online marketplaces may be directly liable for the sale of defective and counterfeit products on their platforms. Now the executive branch has weighed in, with President Trump issuing (on Prime Day, no less) a Memorandum on Stopping Counterfeit Trafficking on … Continue Reading
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