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

Category Archives: Federal Rules

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Federal Judge Finds Copyright Issues “Embedded” in Social Media Re-Posts

Judge Jed Rakoff of the Southern District of New York recently denied a motion to dismiss in a copyright dispute involving the unlicensed “embedding” of a social media video. In doing so, the court explicitly and definitively rejected the Ninth Circuit’s “server rule,” under which the Ninth Circuit held that re-posting of online content does … Continue Reading

How Different Judicial Notice Rules Can Change an Outcome

Judicial notice is one of the less glamorous parts of motion practice. A request for judicial notice is typically a lower-priority background document, drafted towards the end of the brief-writing process, along with a notice of motion and declaration.  But at times, questions relating to judicial notice standards warrant additional consideration, along with the merits … 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

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

Antitrust Enforcers Preview Incoming Spotlight on Blockchain

The tide of regulation of cryptocurrency and blockchain could be turning in the United States. Following comments by newly-confirmed Treasury Secretary (and former Federal Reserve Chair) Janet Yellen describing Bitcoin as “inefficient” and “extremely volatile,” the price of the coin dropped 10% in 24 hours. During her confirmation hearings, Yellen described cryptocurrencies as a “particular … 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

CAFC Tightens Enablement Standard for Functional Claiming of Antibodies

In the recent case of Amgen Inc. v. Sanofi, Aventisub LLC, the Federal Circuit affirmed the district court’s invalidation of certain of Amgen’s antibody patent claims, concluding that the claims were not “enable[d]” under 35 U.S.C. § 112. This decision establishes that it is more difficult to satisfy the enablement requirement for antibody claims that … Continue Reading

The House Judiciary Committee Takes on Big Tech

“Mark my words: Change is coming. Laws are coming.” That was the warning David Cicilline (D-RI) – the House Judiciary Antitrust, Commercial, and Administrative Law Subcommittee Chairman – gave on February 25th at the first in a series of hearings following the Subcommittee’s 16-month probe into Big Tech’s gatekeeping power. This one, titled Reviving Competition, … Continue Reading

CLERA or Murkier: Proposed Antitrust Legislation Raises Questions

The Sherman Act was passed in 1890. The Clayton Act in 1914. And they have hardly changed since. Last month, Senator Amy Klobuchar, the new chair of the Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights, proposed an overhaul of the antitrust laws: CLERA, the Competition and Antitrust Law Enforcement Reform Act.  … 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

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

When Emergencies Become De Rigueur

Many are asking how long states of emergency can continue to be renewed, and whether such extended renewals are permissible or valid. Given the lack of comparable precedent, there is some uncertainty around the issue. Expectations are that while some courts are likely to defer to the use of extraordinary executive power, not all will … Continue Reading

Price Gouging and Bad Intent: How Much Does it Matter?

Although much of the coverage relating to price gouging enforcement has focused on bad actors hoarding pandemic-related goods, businesses that make good faith efforts to comply with the panoply of price gouging restrictions may nevertheless find themselves in the crosshairs. The relevant statutes typically impose a form of strict liability, and do not take motive … Continue Reading

Supreme Court to Weigh in on Constitutionality of Patent and Trial Appeal Board Appointments

The Supreme Court recently granted three petitions for certiorari challenging the Federal Circuit’s holding in Arthrex v. Smith & Nephew that administrative patent judges of the Patent Trial and Appeal Board (PTAB) are unconstitutionally appointed. Under the Patent Act, PTAB judges are appointed by the Secretary of Commerce in consultation with the Director of the … 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

The (Potentially) Shifting Landscape of Online Marketplace Liability

Consumers are doing more and more shopping online. But when a consumer buys a product that is defective or counterfeit, are online marketplaces liable for misconduct by third-party sellers? E-commerce platforms have generally avoided being treated like their brick-and-mortar counterparts by arguing that they do not actually “sell” goods, but rather provide services (e.g., payment … Continue Reading

Pre-Election Drug Pricing Regulation Efforts: Where Does Congress Stand?

The regulation of drug prices has received significant recent bipartisan support in Congress. Democrats and Republicans in both houses have proposed approximately eighty bills relating to drug pricing over the past two years. The charts below summarize the key provisions of representative bills.[i] Although the proposed price-regulating mechanisms differ from bill to bill, the bills … Continue Reading

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
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