Commercial Litigation Update

The October term of the Court began yesterday, with a sitting that marked the very active debut of Justice Ketanji Brown Jackson and predictions that this term will be even more controversial than last, although it is difficult for me to imagine a more incendiary decision than Dobbs.

As I recently noted in an article on trademarks in the U.S. and internationally, Metro-Goldin-Mayer and Pennsylvania State University are two entities in different, yet related, channels of trade (sports and entertainment, which were melded together as ESPN’s original name). But they do have something in common in that each is known for the roar of a lion:

In a recent article examining international trademark, copyright and related issues, we started with a focus on the place humor holds as a possible defense. To understand the roots of the penchant for humor to act as a bulwark of humanity’s way of defending itself, consider this story:

Epstein Becker Green Lawyers Anthony Argiropoulos, Theodora McCormick, William Gibson, and Maximilian Cadmus Argue for Amicus Curiae New Jersey Doctor-Patient Alliance

On August 25, 2022, the New Jersey Supreme Court issued on an important decision in Mirian Rivera v. The Valley Hospital, Inc., (A-25/26/27-21)(085992)(085993)(085994), reaffirming the exceedingly high bar for punitive damages claims in medical malpractice cases in New Jersey. This is an important decision for healthcare providers as it provides them with broad protection from punitive damages claims (which are not covered by malpractice insurance) that are really negligence or gross negligence claims in disguise.

In a brush-back pitch to DOJ opioid initiatives, the U.S. Supreme Court this past June issued an important decision clarifying the mental state the government must establish to convict a licensed medical professional of illegal drug distribution under the federal Controlled Substances Act (“CSA”). No longer can a doctor be convicted of such a crime based on objectively unreasonable prescribing practices alone. The government now must show that the medical professional subjectively, knowingly, and intentionally prescribed a controlled substance with no legitimate medical purpose. While unlikely to materially impact the number of DOJ opioid prosecutions, the case will no doubt inform charging decisions in marginal cases and will support important defense arguments at trial.

The last two years have provided legal professionals with a crash course in the remote practice of law. Attorneys and judges have been forced to navigate COVID-19 protocols and adapt to the rapidly changing legal landscape in the digital age. While the pandemic created an abundance of new technological challenges, it also impacted one of the oldest standards in our judicial system—service of process.

With the release of the decision in Dobbs v. Jackson, questions regarding enforcement activity in states that restrict or ban abortion by statute have been raised and have remained mostly hypothetical. The frequency and scope of future enforcement activity remains unknown. Given the variety of laws now in effect in restricted and ban states, and that enforcement of such laws is subject to state prosecutorial discretion as well as the prevailing political climate, enforcement initiatives are expected to vary by state.

On April 20, 2022, the U.S. Department of Justice (“DOJ”) announced a nationwide coordinated law enforcement action to combat health care-related COVID-19 fraud. In line with the announcement, the federal government has continued throughout this year to focus its enforcement on fraud in the COVID-19 space, particularly on misuse of Provider Relief funds and COVID-19 testing fraud.

On July 7, 2022, the Consumer Financial Protection Bureau (“CFPB”) issued an advisory opinion entitled ‘“Fair Credit Reporting: Permissible Purposes for Furnishing, Using, and Obtaining Consumer Reports.”[1] The advisory opinion clarifies that “permissible purposes” under the Fair Credit Reporting Act (the “FCRA”) are “consumer specific” and highlights that a person who uses or obtains a “consumer report” is “strictly prohibit[ed]” from doing so without a permissible purpose under the FCRA. In the midst of ongoing Congressional efforts to pass a comprehensive federal data privacy law, the CFPB’s advisory opinion is a reminder of the existing rules that protect consumer privacy.

Due to the large-scale shutdowns triggered by the Coronavirus pandemic (“COVID-19”), many businesses were unable to operate fully, or not at all. Litigants across the country have sought to be relieved of their obligations under contracts as a result of the pandemic-related disruptions, under legal theories including impossibility, frustration of purpose, and force majeure. As recently decided cases demonstrate, proponents of these theories have faced uphill battles.