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.
commercial litigation
AI Got It Wrong, Doesn’t Mean We Are Right: Practical Considerations for the Use of Generative AI for Commercial Litigators
By William Walsh on
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.
Can Open Justice Be Too Open? A Review of Proposals to Provide Non-Parties Greater Access to Court Documents in England & Wales
By Charles Bishop & Dorothy Murray on
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.
Court Finds Access to Botox Trade Secrets and Similarity of Competitor Product Supported Inference of Trade Secrets Misappropriation
By Alyson Tocicki & Baldassare Vinti on
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.
Montana Supreme Court Finds Minimum Contacts in Social Media Posts Targeting State Residents
By Shiloh Rainwater on
Posting on social media about businesses located in another state could give rise to personal jurisdiction in that state, according to a recent landmark opinion by a sharply divided Montana Supreme Court. In Groo v. Montana Eleventh Judicial District Court, the Court considered whether several Facebook posts made by Melissa Groo, a New York-based wildlife-photography ethicist, concerning Triple D Game Farm, a wildlife-photography farm in Montana, supported personal jurisdiction in an action by Triple D against Groo in Montana state court for tortious interference with contractual relations and prospective economic advantage. In the posts, Groo had tagged individuals and companies doing business with Triple D, three of whom resided in Montana, and encouraged them to cancel their business with the company because of its alleged mistreatment of animals. Four Justices found the posts sufficient to exercise specific personal jurisdiction over Groo; three dissented.
Be Smarter Than a Lizard: Overcoming Reptile Theory in the Discovery Phase
By Chelsea Samuels on
It’s no secret: plaintiffs’ attorneys want to win big. Using reptile theory, plaintiffs (and their counsel) are enjoying gargantuan jury verdicts. Through thoughtful and strategic lawyering, however, the harsh effects of reptile theory can be avoided.
Two Reminders of The Importance of Clear Drafting: PA(GI) & Drax
By Charles Bishop on
Two of the most common queries Proskauer’s UK litigation team is asked to advise upon are (i) the interpretation and scope of indemnities and (ii) liability caps. Over the summer, the English Courts handed down two judgments that focus on the interpretation of such provisions. These cases serve as a useful reminder of the importance of (1) clear drafting, (2) consistent drafting throughout a contract, and (3) fully considering all relevant risks at the outset of negotiations.
Where Do We Go From Here? Practical Considerations When Multidistrict Litigation Comes to an End
By Christina Maria Assi on
When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a multidistrict litigation (MDL). 28 U.S.C. § 1407(a). In an MDL, the lawsuits are transferred from their filing courts to a single “transferee” Court (the MDL Court) chosen by the Judicial Panel on Multidistrict Litigation (JPML). The purposes of this centralization are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. For example, overarching issues of law, such as preemption admissibility of common-issue expert opinions, are often resolved by the MDL Court instead of needing to be re-litigated in several different courts. Additionally, MDL Courts can hold bellwether trials to help the parties structure a global settlement process to resolve many or all of the filed cases.