Commercial Litigation Update

On March 26, 2021, the United States Court of Appeals for the Second Circuit decided The Andy Warhol Foundation v. Goldsmith, a decision addressing the “fair use” doctrine, an important part of copyright law. “Fair use” tries to balance the extent to which one artist may build on a prior artist’s work without getting the first artist’s approval or license for doing so, and when so much of the quality or quantity of first work is copied that that artist’s work deserves protection against the latter piece. In the recently-decided case, which the Warhol Foundation had won ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Dismisses the Trump Twitter Account Case as Moot, but Social Media Is Sure to Be on the Menu Again".

The following is an excerpt:

Yesterday, I discussed the Supreme Court's move into the world of technology in the case of Google LLC v. Oracle America, Inc., in which the Court held that Google's copying of a small slice of Java programming language code constituted a permissible “fair use” of Oracle's assumed copyright of Java itself. The ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Court Won't Allow Second-Guessing of Convictions Supported by Persuasive Evidence".

The following is an excerpt:

In a per curiam opinion (Sotomayor, J., dissenting without opinion), the Court today decided the case of Mays v. Hines, reversing the Sixth Circuit and reinstating a judgment of conviction in a murder case that originated almost 35 years ago.

Hines had been convicted of murder in the wake of evidence that he had been seen fleeing the ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: "The Supreme Court Takes a Lenient View of Personal Jurisdiction and 4th Amendment Seizures".

The following is an excerpt:

The Court rendered two opinions on Thursday, both interesting and impactful, one of them particularly significant with respect to civil litigation practice.

Ford Motor Co. v. Montana Eighth Judicial District Court arose following two motor vehicle accidents, one in Montana, the other in Minnesota, in which Ford vehicles were ...

Last week, the Securities and Exchange Commission’s Division of Examinations (the “Division”) released its 2021 examination priorities.  The priorities reflect the impact of the COVID-19 pandemic, including how it has increased risks related to cybersecurity; a new focus on climate change; and appear to recognize concerns raised by the recent trading in GameStop stock.

Impact of COVID-19

The onset of the work-from-home environment arising from the COVID-19 pandemic, has, among other things, increased the SEC’s concerns about “endpoint security, data loss, remote ...

Imagine this: You litigate a case for years. Your opponent wins summary judgment. You appeal. The appellate court agrees that the summary judgment was erroneous and remands for trial. On remand, your opponent argues that the appellate court actually affirmed the dismissal of one the claims that was clearly remanded for trial. The lower court accepts that argument. What do you do?

You are facing the injustice of being denied the victory you just won in the appellate court. You know you can return to the appellate court again—someday—as of right. But if that return trip does not happen ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Understanding Standing Under Article III – and the Chief Justice Stands Alone.

The following is an excerpt:

Articles in the popular press have noted that today's decision by a near-unanimous Supreme Court in the case of Uzuegbunam v. Preczewski represents a victory for several Christian students in their battle against a college's restrictive policies that prevented their on-campus religious evangelizing.

It is true enough that the now-former ...

Creative and aggressive plaintiffs’ lawyers are forever on the hunt for new theories under which to bring potentially lucrative class action lawsuits utilizing plaintiff-friendly state consumer protection statutes (with California being the most favored forum). The dietary supplement industry has been in the plaintiffs bar’s cross-hairs for more than a decade now. As the case law has evolved and developed, supplement companies have had notable success fighting these suits. Just last week, Judge Miller in the Southern District of California tossed a proposed class action ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: The Supreme Court Decides Significant Administrative Law Case Preventing Disclosure of Agency Deliberations

The following is an excerpt:

The Court decided two cases today, one of which is an administrative law case that may prove consequential, not just in the field of environmental law, in which it is grounded, but in other areas of the law, for example, health care, in which prospective rules undergo repeated drafts and modifications. United States ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: A Hint About the Future of the Affordable Care Act.

The following is an excerpt:

There were no opinions delivered today, only very heated and important argument in the consolidated cases of Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee.

These cases concern whether two of Arizona’s voting policies—one prohibiting counting provisional ballots cast on election day outside of a ...