The Federal Trade Commission has announced revisions to HSR Act and Clayton Act Section 8 thresholds, which are indexed annually in alignment with prior year economic activity. The article identifies the adjustments that are likely to be the most relevant to our clients and reiterates several important practice tips.
Court Rules that Patient List and Related Medical Practice Information Qualify as Trade Secrets
The 2016 enactment of the Defend Trade Secrets Act (“DTSA”) has led to an increase in trade secret litigation. The DTSA codified into federal law the right of an owner of a trade secret to sue in federal court when its trade secret had been misappropriated. Prior to the DTSA, with the absence of diversity jurisdiction, aggrieved trade secret owners had to pursue legal remedies under state law, typically under the Uniform Trade Secret Act (“UTSA”), which has been enacted by 47 states. Notably, the DTSA does not preempt state trade secret laws, therefore, aggrieved trade secret holders may seek civil remedies for alleged misappropriation under either state or federal law or both. Both the DTSA and the UTSA requires the trade secret owner to take reasonable measures to keep the trade secret information secret. The term reasonable can have many meanings in different contexts depending on a multitude of factors. As such, what may be considered reasonable efforts under one set of facts may be deemed deficient under another set of facts.
The “State of the Arts” after Andy Warhol Foundation v. Goldsmith
It has been eight months since the Supreme Court’s landmark copyright fair use decision in Andy Warhol Foundation for the Visual Art, Inc. v. Goldsmith. Much has been written on the subject, including in this forum, but in many ways it was a narrow decision. The Court held that the commercial licensing of Orange Prince, a work in Andy Warhol’s Prince series based on a photograph by Lynn Goldsmith, was not protected under the first factor of the four-factor fair use test under 17 U.S.C. § 107. Its discussion of the transformative use test emphasized the similarity of the uses the works were put to (depicting Prince on magazine covers), rather than the characteristics of the works themselves. This, the Court said, prevents judges from acting as art critics to determine the aesthetic differences between, or meanings behind, artistic works.
Exodus From The Energy Charter Treaty – What is Left of Europe’s Protections for Investors?
As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the ECT by EU member states, which effectively will limit protections granted by the treaty previously enjoyed by direct investors and asset managers with portfolio companies in the energy sector.
New California Evidentiary Standard Makes Admitting Defense Expert Testimony More Challenging
California’s evidentiary rules have changed. As of January 1, 2024, defense expert testimony in medical causation cases is subject to a higher threshold.
DOJ and FTC Release New Merger Guidelines
On December 18, 2023, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) released the 2023 Merger Guidelines. Following a 60-day public comment period that solicited over 30,000 comments from a variety of stakeholders, the finalized guidelines take a somewhat softer approach than the draft guidelines…
Federal Circuit Clarifies Reach of “Artificial” Act of Patent Infringement
Litigators in the life sciences field are no doubt familiar with the so-called “artificial” act of infringement established by 35 U.S.C. § 271(e)(2)(A)-(B): namely, that a party can be sued for patent infringement by merely filing an Abbreviated New Drug Application (“ANDA”) for a generic drug or a Biologics License Application (“BLA”) for a biosimilar drug. The filing of such an action can allow for, among other things, the resolution of patent infringement disputes before the generic (or biosimilar) drug enters the market.