Minding Your Business

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

Category Archives: Litigation

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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

Recent Decisions Spotlight Arbitration Agreements in Online Delivery Service Terms and Conditions

The global pandemic has brought about countless changes, including, for many households, increased reliance on online retail and delivery services, such as Amazon. When consumers sign up for these services or place their orders, they are likely to see a notice regarding terms and conditions, which may include an arbitration agreement pursuant to which the consumer … 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

Cybersecurity: A Guide to Preparing for and Responding to a Breach

A cyber breach can have serious legal, financial, and reputational consequences for a company, as described in our previous post. As such, cybersecurity threats must be treated as business risks, not just a potential IT problem. Senior management at a company should take the lead to ensure that the company is taking appropriate actions 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

Sixth Circuit Tips the Scale in Split Over What Constitutes an Autodialer Under the TCPA

The Sixth Circuit has joined the Second and Ninth Circuits in their broad interpretation of the Telephone Consumer Protection Act’s (TCPA) autodialer provision. In doing so, it has tipped the scale in a circuit split that is ripe for review by the U.S. Supreme Court.… Continue Reading

Supreme Court Decides No Signature, No Problem

On June 1, 2020, the U.S. Supreme Court delivered a unanimous opinion regarding the relationship between domestic equitable estoppel and the enforcement of arbitration agreements. In GE Energy Power Conversion France SAS, Corp., Converteam SAS v. Outokumpufka Stainless USA, LLC, et al., (“GE Energy Power”), the Court addressed the question of whether the Convention on … Continue Reading

Pandemic for Profit? – SEC Enforcement Patrols Press Releases

In times of crisis, fraudsters attempt to exploit the latest news developments to lure investors into scams, and the once-in-a-century global health crisis we are currently facing is no exception. On February 4, 2020, the SEC noted in an Investor Alert that it was aware of a number of web-based promotions claiming that the products … Continue Reading

UK Arbitration H1 2020: 6 Months and 6 Key Messages from the English Courts, Part 2

With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. We identified 6 key developments in arbitration case law in England from the last 6 months. In Part 1 of the two-part post, … Continue Reading

Margaret Dale Explores Ways to Protect Privilege After Data Breach

Proskauer’s Vice-Chair of the Litigation Department and Minding Your Business blog editor, Margaret Dale was recently featured on Thomson Reuters’ Practical Law, where she explores ways that clients can protect privilege after a data breach. The first, “Protecting Privilege Basics,” identifies steps that can be taken by an organization to maximize the ability to successfully … Continue Reading

UK Arbitration H1 2020: 6 Months and 6 Key Messages from the English Courts, Part 1

With an uptick in commercial wrangles expected as a result of measures taken to combat Covid-19, England is not alone in seeking to provide a welcoming jurisdiction to deal with such disputes. In this two-part post, we pick out 6 key developments in arbitration case law in England over the last 6 months to reveal … Continue Reading

Maintaining Privilege and Work Product Protections in Dual Purpose (Legal and Business) Investigations

Requires More than Merely Adding Counsel’s Name to a Forensic Report. Technical investigations conducted following cyber-incidents often have both legal and ordinary-course business purposes. In certain jurisdictions, reports generated as a result of such investigations can be protected from discovery by privilege and work product protections– despite certain non-legal use – under the “dual purpose” … Continue Reading

Supreme Court Narrowly Rejects Second Circuit’s Sweeping “Defense Preclusion” Doctrine

Earlier this month, the United States Supreme Court unanimously rebuffed the Second Circuit’s attempt to expand the scope of res judicata to include the so-called concept of “defense preclusion” – a novel doctrine that would have barred defendants from raising defenses not asserted in previously adjudicated disputes regardless of whether the disputes share a common … Continue Reading

Pricing in an Emergency: Where Price Gouging Meets Antitrust

As state investigators across the country launch price gouging investigations, one thing is becoming clear – state price gouging investigations can look a lot like antitrust investigations. Price gouging enforcement is at an all-time high, and more and more it is being combined with antitrust and unfair trade practice investigations. This overlap can be bad … Continue Reading

First Circuit Holds Japan is an Adequate Alternative Forum

On April 24, 2020, the First Circuit affirmed the District of Massachusetts’ dismissal of a case against General Electric on forum non conveniens grounds. In 2011, an earthquake-induced tsunami struck the Fukushima Daiichi Nuclear Power Plant in Japan. Individuals and businesses who suffered property damage and/or economic harm from the disaster filed a class action … Continue Reading

Corporate Caution during COVID-19

The COVID-19 pandemic has brought great economic uncertainty and significant market volatility, creating an environment where investors that are trying to assess the financial impact of the virus are looking to glean any insight they can from a company’s disclosures and are hanging on every statement made by company leaders. This environment of heightened investor … 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

Delaware Chancery Holds Early Committee Appointment Necessary to Cleanse Conflict from Corporate Transactions

In Salladay v. Lev, the Delaware Chancery Court elaborated on how early a corporate board must take protective measures to shield a conflicted transaction from entire fairness review. Salladay involved a motion to dismiss a challenge to a merger agreement based on alleged director conflicts at the target company. The defendants argued that the transaction … Continue Reading

Jeep Drivers’ Claims Come to a Screeching Halt: Hypothetical Hacking Threat Does Not Confer Article III Standing

On March 27, 2020, a five-year legal battle between three certified classes of Jeep Cherokee drivers and Fiat Chrysler came to a sudden end, when a federal judge in the Southern District of Illinois held that allegations that the vehicles were vulnerable to cyber-attacks did not give plaintiffs standing to sue under Article III of … Continue Reading

First Circuit Treads “Unchartered Waters”: Holds Copyright Sublicenses Can Be Implied

On March 13, 2020, the U.S. Court of Appeals for the First Circuit, in a case of first impression, held that a copyright licensee given the unrestricted right to grant sublicenses may do so without using express language. The case, Photographic Illustrators Corp. v. Orgill, Inc., stems from a license Photographic Illustrators Corp. (“PIC”), a … Continue Reading
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