Commercial Litigation

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Although Google fought tooth and nail against it, a win for an underdog video game developer means the Google Play Store could likely soon look a lot different for Android users. Google met its match in December when Epic Games, the creator of the hit video game Fortnite, won on all counts in its antitrust suit against the tech titan. However, the fight is far from over: the court is currently determining what exactly the Google Play Store will look like in the future and heard arguments last week over Epic’s proposed injunction. As Judge Donato of the Northern District of California put it during the hearing, despite Google’s argument that “there’s a terrifying world of chaos and energy that’s just around the corner if there’s competition in the app store market,” the judge “just [doesn’t] buy it.” On the other hand, he said Epic’s proposed injunction – which would bar Google from enforcing “contractual provisions, guidelines or policies, or otherwise imposing technical restrictions, usage frictions, financial terms or in-kind benefits that … restrict, prohibit, impede, disincentivize or deter the distribution of Android apps through an Android app distribution channel other than the Google Play Store” – was “too open-ended.”  Proceedings continue in August, and the parties will have opportunity for closing arguments. In the meantime, we revisit the implications and the stakes of the case, beyond just Google and its Play Store. 

A recent complaint alleging trade secret misappropriation in the Eastern District of New York demonstrates the importance of combing an alleged trade secret misappropriator’s social media for subtle – and not-so-subtle – evidence of their wrongdoing.

The United States has charged Klaus Pflugbeil and Yilong Shao with conspiring to convey…

The New York Court of Appeals recently endorsed the trial court’s discretion to grant leave to amend a complaint under CPLR 3025 (b), holding that when the appellate court dismisses the plaintiffs’ complaint without prejudice, and the original action remained pending in the trial court with defendants’ counterclaims, the trial court may grant plaintiffs leave to file a third amended complaint.

Picture this: You’ve just been retained by a new client who has been named as a defendant in a complex commercial litigation. While the client has solid grounds to be dismissed from the case at an early stage via a dispositive motion, the client is also facing cost constraints. This forces you to get creative when crafting a budget for your client’s defense. You remember the shiny new toy that is generative Artificial Intelligence (“AI”). You plan to use AI to help save costs on the initial research, and even potentially assist with brief writing. It seems you’ve found a practical solution to resolve all your client’s problems. Not so fast.

On March 4, 2024, the California Supreme Court ruled in Niedermeier v. FCA that consumers forced to trade in or sell their defective vehicles due to a manufacturer’s failure to comply with the Song-Beverly Consumer Warranty Act, California Civil Code section 1793 et seq., (the “Act”) should not have their restitution reduced by the money they received from the trade-in or sale.

In July 2019, the UK Supreme Court (UKSC) handed down a judgment in a case that concerned the extent and operation of the principle of open justice (Cape v Dring). The question before the UKSC was how much of the written material placed before the court in a civil action should be accessible to those who are not parties to the proceedings and how it should be made accessible to them.

On November 1, 2023, a jury in the U.S. District Court for the Central District of California awarded damages to Skye Orthobiologics, LLC (“Skye”) and Human Regenerative Technologies, LLC (“HRT”) for breach of contract, breach of fiduciary duty, and breach of duty of loyalty by Skye’s former employee (“Defendant”). While Plaintiffs Skye and HRT did not succeed on their claim of trade secret misappropriation, they were able to succeed in showing Defendant misappropriated confidential information in breach of his employment agreements.

Proving access to and use of trade secrets are core elements in a trade secrets misappropriation case.  Recent rulings in a trade secrets action filed by Allergan against its competitor Revance Therapeutics (“Revance”) provide helpful guidance on what is sufficient to plead these elements. There, the court explained what facts are—and are not—sufficient to infer access to and use of trade secrets allegedly misappropriated. The court also explained how examining the similarity of design may help in this analysis. Finally, the court clarified that the ability to reverse engineer alone may not always preclude trade secret protection.