Minding Your Business

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

Category Archives: Federal Rules

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Orphan Drug Exclusivity for CRISPR/Cas-Based Therapeutics

The prospect of genetic engineering using CRISPR (clustered regularly interspaced short palindromic repeats) and CRISPR-associated nucleases (Cas) has long been hailed as a “revolutionary” development in medicine. This technology is rapidly advancing, and several CRISPR/Cas-based drugs have entered clinical trials over the past several years. One kind of product in clinical trials is CRISPR-modified cells, … Continue Reading

Use of Technology Assisted Review Finds Support in Northern District of Illinois

In a recent order from Livingston v. City of Chicago, Magistrate Judge Young Kim of the Northern District of Illinois provided useful guidance to litigants in the use of technology assisted review, or TAR. Importantly, Judge Kim affirmed what is known as “Sedona Principle Six,” the notion that a responding party is in the best … Continue Reading

11th Circuit Rejects Litigant’s “Creative Effort” To Escape Forum Selection Clause Requiring Federal Forum

Common practice dictates that plaintiffs often prefer to be in state court – and will sometimes go to great lengths to avoid federal court jurisdiction. That was the case in Deroy v. Carnival Corporation, a recent Eleventh Circuit decision, wherein the court rejected a plaintiff’s “creative effort” to escape a forum-selection clause requiring her to … Continue Reading

Federal Circuit Issues a Splintered Ruling on the Eleventh Amendment Immunity and Rule 19 Joinder Analysis

On July 24, 2020, a panel of the Court of Appeals for the Federal Circuit issued splintered precedential opinions surrounding the interplay of state sovereign immunity under the Eleventh Amendment and required joinder of parties under Rule 19 of the Federal Rules of Civil Procedure in a patent-in-suit infringement case in Gensetix, Inc. v. Baylor … Continue Reading

What’s My Price? Price Gouging Enforcement, Bargaining Power and Stealth Price Increases

Businesses may be wondering whether there is increased risk of price gouging liability when they impose higher penalty terms, ask for higher up-front payments, raise rates, or otherwise seek terms that may be more burdensome. Sellers and service provides should consider the risk of being held liable for non-price terms that result in higher customer … Continue Reading

Pricing Controls under the Defense Production Act

With the federal government’s increasing focus on enforcing price gouging compliance, attention has turned to the Defense Production Act (the “DPA”). Passed in 1950 in response to the Korean War, the DPA is modelled on the War Powers Acts of 1941 and 1942 and gives the President, among other things, sweeping power to control the … Continue Reading

Federal Price Gouging Enforcement Update

While the majority of price gouging enforcement has occurred at the state level (see Proskauer on Price Gouging — A Coast-to-Coast Reference Guide), the federal government has also been active, and several federal price gouging bills have been introduced, though none have been signed into law. See, e.g., S. 3574 (empowers the FTC and Attorney … Continue Reading

Clearance to Reduce Capacity May Not Be Clearance to Raise Prices: Can Business Review Letters Impact Price Gouging Compliance?

In response to the current pandemic, antitrust enforcers at the Department of Justice have been issuing business review letters at record pace. One of these business review letters addressed an inquiry from the pork industry about reducing supply based on the COVID pandemic disruption. This raises the question as to whether the DOJ letter about antitrust … Continue Reading

Latest Attack on the Affordable Care Act Soundly Defeated: “The Government should honor its obligations.”

President Obama’s Affordable Care Act has survived yet another challenge in the federal courts. In a resounding 8-1 decision this Monday, April 27, 2020, the U.S. Supreme Court ruled that health insurance companies who suffered losses entering the new marketplaces established by the Affordable Care Act (“ACA”) were entitled to compensation for those losses.… Continue Reading

Divided Supreme Court Rules that State Jury Verdicts for Serious Crimes Must Be Unanimous

On April 20, 2020, the Supreme Court held in a 6-3 decision that the Sixth Amendment requires a unanimous jury verdict to convict a defendant of a serious offense in state courts. In so holding, the Court not only paved the way for potentially hundreds of defendants convicted by divided juries, like petitioner Evangelisto Ramos, … Continue Reading

The House Targets Price Gouging, Again

Even though states are leading the way on price gouging enforcement, recent action in Congress may lead to overlapping federal government enforcement.  Recent Congressional letters, statements, and proposed bills show a strong appetite for action on price gouging.  House Democrats tried but failed to add price gouging language to the coronavirus relief package in March.  … Continue Reading

Bipartisan Congress Intensifies Efforts to Restrict Orphan Drug Exclusivity

“Orphan” drug exclusivity, which is intended to reward drug companies’ investment in the development of certain drugs, might soon be harder to get—and keep. Over the past several months, Congress introduced two similar bills to amend a “loophole” in the Orphan Drug Act (ODA).  On October 17, 2019, a bipartisan group of House members introduced … Continue Reading

FTC Announces 2018 Thresholds Under HSR Act and Clayton Act

On January 26, 2018, the Federal Trade Commission announced revisions to HSR Act and Clayton Act Section 8 thresholds, which are indexed annually to account for inflation. We have identified the adjustments that are likely to be the most relevant to our clients, and reiterate several important practice tips. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, commonly … Continue Reading

The Supreme Court Enters the Digital Age

Electronic filing is coming to the U.S. Supreme Court! Effective November 13, 2017, amendments to the Supreme Court’s rules take effect that require represented parties (and their amici) to submit petitions, briefs, and most other filings through the Court’s electronic filing system. The Rules explain that the new e-filing requirements are “[i]n addition to the … Continue Reading

New CFPB Arbitration Rule Already Under Attack

On July 10, 2017, the Consumer Financial Protection Bureau (CFPB) issued a new rule that would make it easier for consumers to bring class action lawsuits against financial institutions. The new rule bans financial institutions from using mandatory arbitration clauses in consumer contracts to prevent and avoid class action lawsuits. If the new rule goes … Continue Reading

NY Court of Appeals Clarifies What May Constitute a Binding Agreement in the Sale of Syndicated Loans

A unanimous New York Court of Appeals recently held that the acceptance of an auction bid for the sale of a syndicated loan may constitute a final and binding trade, even if there is language indicating that the agreement is “subject to” the execution of a mutually acceptable, written agreement. The ruling overturns a New … Continue Reading

You’ve Got (Foreign) Mail: Can Law Enforcement Get to it?

Even though Microsoft is a U.S. corporation subject to domestic subpoenas and warrants, prosecutors are not entitled to emails stored on its servers abroad, the Second Circuit ruled last week in Microsoft Corp. v. United States. In a majority opinion by Judge Carney, the Court held that warrants under the Stored Communications Act (“SCA”) are … Continue Reading

Amended Rule 34: No Boilerplate Objections, but Specificity Remains a Question

Amended in December alongside many other rules in the Federal Rules of Civil Procedure, Rule 34(b)(2)(B) now requires that objections to document requests be stated with “specificity.” The early applications of the amended rule demonstrate that boilerplate objections will not stand, but courts have yet to answer more nuanced questions regarding the level of specificity … Continue Reading
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