Commercial Litigation Update

The question of whether a would-be trademark, “TRUMP TOO SMALL,” warrants a First Amendment exception to the Lanham Act’s prohibition on registering a living person’s name as a trademark without that person’s permission has now reached the United States Supreme Court. On June 5, 2023, in Vidal v. Elster, Case 22-704, the high court granted the United States Patent and Trademark Office’s (hereinafter, the “Government”) petition for certiorari to determine whether, under 15 U.S.C. § 1052(c), the refusal to register a trademark containing another person’s name violates the Free Speech Clause of the First Amendment when that mark implies criticism of a government official or public figure. As we wrote last year, one cannot normally trademark another person’s name, but in the case of Steve Elster’s trademark application for TRUMP TOO SMALL, the United States Court of Appeals for the Federal Circuit (the “CAFC”) held in In re Elster, 26 F.4th 1328, 2022 USPQ2d 195 (Fed. Cir. 2022), that one’s First Amendment right to make social commentary about a public figure trumps (bad pun intended) the Lanham Act. Whether the Supreme Court agrees with the CAFC soon will be determined.

It should come as no surprise to constitutionalists, practitioners under the Federal False Claims Act (31 U.S.C. §§3729–3733) (FCA), and auditors of the oral argument in the case that the Supreme Court has held that the federal government may move to dismiss an FCA action under §3730(c)(2)(A) whenever it has intervened—whether during the seal period or later on. United States ex rel. Polansky v. Executive Health Resources, Inc. To assert this right, the government must actually intervene (which is not difficult since the statute allows it at any time before final judgment, even on appeal), and the propriety of dismissal is to be adjudicated pursuant to Fed. R. Civ. P. 41(a), the rule generally governing voluntary dismissal of suits in ordinary civil litigation, and dismissal should be granted in all but the most extraordinary cases. 

Indian tribal rights led the Supreme Court’s docket today. In one case, the Court held that the federal Bankruptcy Code abrogated the sovereign immunity of tribal governments. And in another, this time upholding tribal rights, the Court held upheld the constitutionality of the Indian Child Welfare Act (ICWA), with its arguably discriminatory provision requiring the placement of foster or adoptive Indian children with Indian caretakers. Justice Gorsuch, perhaps the Court’s most interested and knowledgeable member concerning tribal rights and interests, was the lone dissenter in the bankruptcy case and provided a unique historical perspective in a scholarly concurrence in the ICWA case. Finally, a unanimous Court held that the Constitution allows the retrial of a defendant who had been tried in an improper venue before jurors drawn from the wrong district. Three interesting and detailed opinions, none reflecting any major division in the Court, though perhaps Justices Thomas and Alito might seem to live on an island of their own.

In our first post we discussed what a trademark is and how business owners can strengthen the protection of their trademarks. But, obtaining a trademark registration is just the first step—you also need to monitor your trademark to make sure no one else is using it, or a confusingly similar trademark, without your permission. Trademark infringement occurs when another business or individual uses your trademark, or a similar mark, in a way that is likely to confuse or deceive consumers about the source of the goods or services. This can be detrimental to your business by both diluting your brand and causing you to lose customers. This post explores some of the best methods business owners can employ to monitor their trademarks.

The U.S. Court of Appeals for the Second Circuit issued a decision in Slattery v. Hochul, reversing the dismissal of a First Amendment challenge to New York Labor Law §203-e (also referred to as the “Boss Bill”). The Boss Bill prohibits employers from taking adverse employment actions against employees based upon their reproductive health decisions, including “a decision to use or access a particular drug, device or medical service,” and also forbids employers from “accessing an employee’s personal information regarding the employee’s . . . reproductive health decision making.” The term “reproductive health decision making” necessarily would include an employee’s decision to have an abortion or use contraception. The Boss Bill, unlike Title VII of the Civil Rights Act, does not contain an exemption for religiously affiliated organizations.

Emerging from the pattern of unanimity, or near unanimity, that has characterized most of the cases decided so far this term, the Supreme Court decided one of its most eagerly awaited and controversial cases. And the outcome of the case will confound the predictions of many voting-rights analysts and critics of the Court and its Chief Justice.

The case is Allen v. Milligan, and, in a 5-4 opinion written by the Chief Justice, and joined by Justices Sotomayor, Kagan, and Jackson, and, most significantly, by Justice Kavanaugh, the Court held that a districting plan adopted by the State of Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act, 52 U. S. C. §10301. I think it is fair to say that, following the oral argument of the case, most liberal commentators expected significant further erosion of Section 2, and most politically, if not jurisprudentially, conservative observers were licking their lips. Each side has been surprised.

The New York State Court Rule (the “Rule”), 22 NYCRR 202.20-d, that governs entity depositions is intended to streamline the method for examining entities. Although it is similar to FRCP 30(b)(6), it is not entirely the same. The differences between the Rule and FRCP 30(b)(6), as well as the fact that there is minimal case law interpreting the Rule, will likely lead to some confusion for commercial entities - and their general counsel - that receive a notice or subpoena to testify at a deposition for a case pending in New York State court. This blog post provides a brief overview of what is required by such a notice or subpoena and the related rights that are afforded to the commercial entity.

Continuing the issuance of opinions as to which the Justices are largely of one mind, the Court today handed down three decisions. Each gives important guidance to litigators on both sides of the ball. The first of these is a unanimous opinion settling the hotly debated question of whether intent under the federal False Claims Act (FCA) is a subjective or objective matter. It is the former. The second decision, also unanimous, clarified what a plaintiff must plead and prove to establish securities fraud regarding a stock offering through a direct listing. The third case offers a lone dissent over a majority and concurring opinions rejecting a labor union’s argument that the National Labor Relations Act (NLRA) preempts a state court tort action concerning workers sabotaging a company’s concrete trucks.

With essential unanimity, though with an array of concurrences in one of them, the Supreme Court ruled against government parties in three cases, two of them in favor of homeowners, and in property rights and environmental enforcement cases, and a third, upholding the right of appeal by a prison guard charged with causing a detainee's beating.

Introducing the first episode of our new podcast, Speaking of Litigation - read our announcement here.

Trial lawyers are constantly developing dynamic litigation strategies and using new technologies in the courtroom.

Whether we like it or not, litigation is becoming more like a reality TV show, with video depositions trending toward full-scale production sets. But what really goes into making a comprehensive and seamless video deposition?

Epstein Becker Green attorneys Max Cadmus, Victoria Flinn McCurdy, and Anthony Argiropoulos break down how this trend requires litigators to strengthen their deposition playbook.