Commercial Litigation Update

Recently, a 1952 Mickey Mantle baseball card, in near-mint condition, sold for a record $12.6 million at auction. Imagine if the new owner brought the card home and showed it to a friend, carefully instructing the friend not to take it out of its protective cover. But while the new owner’s attention is diverted, the friend removes the card from its sleeve, lays it on the table, and proceeds to spill his nearby beer. Luckily, the friend is able to swipe the card off the table before it is completely ruined, but a few small drops of beer permanently stain the once-near-mint condition card.

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Congratulations—you’ve been sued again. This time it’s in federal court under the Lanham Act. You review the complaint, and while it’s not outrageously frivolous on its face (which we previously discussed here), it’s also not your run-of-the-mill Lanham Act case. You might assume that your only option is to fully litigate the claim, and wait for vindication from the Court on summary judgment or after trial. But the Lanham Act provides another remedy: fee-shifting to recoup your legal fees. If the Lanham Act claim you’ve defended against is “exceptional” under the ...

Congratulations. You’ve been sued in court in New Jersey. To make matters worse, the complaint is full of lies. Not distorted versions of the truth or someone’s interpretation of events that actually occurred, but outright false statements of fact. The kind that make you look bad in your personal and business communities. The kind that hurt your reputation and cause people to think twice about doing business with you or your company.

You are understandably upset and want to go on the offensive, but your lawyer tells you the playbook is empty. She explains that there is an “absolute ...

The Racketeer Influenced and Corrupt Organizations Act, better known as “RICO,” was enacted to fight organized crime but has evolved into the bane of legitimate businesses. Along with criminal penalties that can only be enforced by federal prosecutors, RICO contains a provision allowing for civil lawsuits. The rewards for a successful civil RICO claim include mandatory treble damages and attorney’s fees. For this reason, civil RICO lawsuits have become a favorite of overzealous plaintiffs hoping to make headlines and scare legitimate businesses into quick settlements. And since private plaintiffs have a greater incentive to be “creative” than federal prosecutors, civil RICO cases often push the statute’s limits. But the Supreme Court’s recent decision in the infamous “Bridgegate” case, Kelly v. United States, may help decelerate this trend by limiting civil RICO claims in important ways.

In the Bridgegate case, three New Jersey state officials were charged with exacting political revenge against a local Democratic mayor for failing to endorse the Republican governor’s reelection bid. In what could have been a deleted scene from The Sopranos, the state officials ordered a “traffic study” that closed down some lanes for commuters in Fort Lee, New Jersey (the home of the Democratic Mayor) traveling across the George Washington Bridge into New York City. The “traffic study” had the predictable result of creating hours of gridlock that ensnared commuters, school buses, and even ambulances. That gridlock was, of course, the goal all along. In fact, upon hearing the news that the Democratic mayor would not endorse the Republican governor, one of the state officials emailed the other, advising: “Time for some traffic problems in Fort Lee.”

Federal prosecutors felt that this was more than petty political retribution and charged the trio of state officials with criminal violations of the federal wire fraud statute, which makes it a crime to use interstate wires (such as telephones and email) to effect “any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. § 1343. One of the officials pleaded guilty, and the other two were convicted at trial. The convictions were later affirmed on appeal by the Third Circuit.

We are pleased to present Commercial Litigation Update, the newest blog from law firm Epstein Becker Green (EBG), which will offer engaging content about emerging trends and important developments in commercial and business litigation.

Commercial Litigation Update will feature thought leadership from EBG litigation attorneys and provide insightful and practical commentary and analysis on a wide range of timely litigation issues that affect businesses. Areas of interest will include trends and developments in antitrust, contract, defamation and product disparagement ...