Commercial Litigation Update

In September 2020, the U.S. Department of Justice (“DOJ”) and the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) announced its annual healthcare-related “takedown.” The takedown, which involved enforcement actions that actually occurred over numerous months preceding the press event (and as such, the reference to a “takedown” is a misnomer”) targeted alleged schemes that related to opioid distribution, substance abuse treatment facilities (“sober homes”), and telehealth providers, the latter of ...

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 ...

On September 30, 2020, the Third Circuit reversed a decision by the Eastern District of Pennsylvania ordering AbbieVie, Inc. (“AbbieVie”) and Besins Healthcare Inc. (“Besins”) to pay $448 million in disgorgement of ill-gotten profits for allegedly filing sham patent lawsuits to stifle competition. AbbieVie and Besins had filed patent infringement lawsuits against two developers of generic alternatives to its brand-name testosterone gel product AndroGel. The FTC sued AbbieVie and Besins in 2014 alleging that the patent suits were baseless and brought for no other ...

There are cybersecurity lessons to be learned from high profile data breaches and the ensuing regulatory responses. The recent well-publicized Twitter hack is no different. According to the New York State Department of Financial Services (“NYSDFS”) investigation and report, on July 15, 2020, a 17-year old hacker and his accomplices easily misled Twitter’s employees into disclosing their credentials resulting in a breach of Twitter’s network and the hackers’ takeover of accounts assigned to high-profile users in just a 24-hour period. The NYSDFS concluded that ...

Mark Twain once said: “Trial by jury is the palladium of our liberties. I do not know what a palladium is, but I am sure it is a good thing!” If Mr. Twain were alive today, he wouldn’t be quite so sure that jury trials conducted during the COVID-19 pandemic are really such a good thing.

Recent news reports suggest that a vaccine may not be available until next spring at the earliest, and it may take months before that vaccine can be widely distributed. But the demands of justice do not rest, and courts—already overburdened with growing dockets before the pandemic—are struggling to ...

The Third Circuit recently affirmed the significant discretion that district court judges have to manage their dockets when it confirmed that “good cause” must be shown under Federal Rule Civ. P. 16(b)(4) to add a party or amend a pleading after the deadline in a district court’s scheduling order has passed rather than Rule 15(a)’s more liberal (“[t]he court should freely give leave when justice so requires”) standard. In Premier Comp Solutions, LLC v. UPMC, 970 F.3d 316 (3d Cir. 2020), the plaintiff made a motion to amend its complaint and add a party, relying on Rule 15 of ...

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 ...

EBG attorney Edward J. Loya, Jr. was recently named Chair of the Hispanic National Bar Association’s Criminal Law Section. I recently sat down with him for a Q&A regarding this honor, his work with the HNBA, and his white collar criminal practice at EBG.

Q: Most of our readers are probably familiar with the Hispanic National Bar Association, but for those who may not be, can you tell us a little about HNBA’s history and mission?

On July 8, 2020, the California Court of Appeals held that when an employee fails to initial a specific part of an arbitration agreement, but still signs it, the agreement is still enforceable.

Plaintiff Joseph Martinez brought a series of employment claims against his former employer, BaronHR, Inc., which moved to compel arbitration. Martinez opposed the motion to compel arbitration on the ground that he did not initial the provision outlining his agreement to waive his right to a trial by jury. Martinez argued that the absence of his initials expressed an intent not to arbitrate ...

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.