Commercial Litigation Update

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Court Refuses to Take Another Look at Case Questioning Whether Judge or Arbitrator Should Decide Scope of Arbitration Agreement

The following is an excerpt:

The overall quiet at the Court on Monday was only lightly interrupted with its per curiam decision in Henry Schein, Inc. v. Archer & White Sales, Inc., dismissing the petition for certiorari to the Fifth Circuit as improvidently granted. I mention it because the dismissal leaves open the questions that ...

Our colleague Stuart Gerson of Epstein Becker Green has a new post on SCOTUS Today that will be of interest to our readers: Unanimous Court Applies “Plain Meaning” Approach in Bankruptcy Decision

The following is an excerpt:

Bankruptcy is not usually a subject that I would cover in this blog, but I write about the Supreme Court’s unanimous decision today in City of Chicago v. Fulton for two reasons. The first is obvious in that, in these uncertain times, there is an unfortunate number of companies that are contemplating reorganization and others that, as a result, are taking ...

Our colleagues Janene Marasciullo and David J. Clark of Epstein Becker Green have a new post on the Trade Secrets and Employee Mobility blog that will be of interest to our readers: "Less Than a Month After DOJ Brings Its First Wage-Fixing Indictment, DOJ Brings Its First "No-Poach" Indictment."

The following is an excerpt:

In the past month, the U.S. Department of Justice (DOJ) has made good on its 2016 threat, contained in its Antitrust Guidance for Human Resource Professionals (“Antitrust Guidance”) to bring criminal charges against people or corporations who enter into ...

Long before the birth of Elvis Presley in 1935, and even longer before his recent 86^th birthday on January 8, 2021, King Arthur was the legendary king of choice, and his story was most completely told in Le Morte d'Arthur by Sir Thomas Malory. Hence, we embrace the paraphrased allusion in the title above, to both Arthur and the King of Rock-n-Roll, who despite his absence from the public stage since 1977 remains a brand. Thus, Elvis is a good example of what a lay person would call post-mortem publicity rights, as his brand remains one today valued at over $300 million. What is also ...

Most have heard the cliché “don’t do the crime, if you can’t do the time.” For many criminal defendants, however, a significant factor in the time served is not just the crime committed, but rather the so-called “trial penalty.”

A “trial penalty” describes situations where a defendant chooses to proceed to trial instead of accepting whatever plea deal the Government had offered and receives a significantly lengthier sentence than she would have received had she not gone to trial. Often the “trial penalty” results in a defendant receiving a much lengthier ...

The COVID-19 pandemic has foisted ten years of technological advances on the legal sector in a period of ten months. In June of 2020, when the novel Coronavirus was truly novel, we blogged (here) about whether virtual jury trials would be part of the “new normal” and discussed some of the potential pitfalls associated with remote courtroom proceedings.

What seemed revolutionary just a few short months ago, does, indeed, appear to be the “new normal,” ushered in by the pandemic. On January 7, 2021, the New Jersey Supreme Court issued an Order resuming civil jury trials in a ...

EBG attorney William O. Stein recently obtained a complete defense verdict in one of the few jury trials to be tried during the pandemic. I recently sat down with him for a Q&A regarding his experience trying a “socially distanced” jury trial during the pandemic and how it differed from a regular jury trial.

Q: What was it like trying a “socially distanced” jury trial case during the pandemic?

Following up on our prior discussion of Studio 417, Inc., et al. v. The Cincinnati Ins. Comp., a different federal judge in the Western District of Missouri recently ruled in Zwillo V, Corp. v. Lexington Insurance Co. that a Kansas City restaurant could not recover for COVID-19 business interruption losses under an insurance policy and, in the process, questioned the reasoning of Studio 417, Inc. and other recent decisions.

The owner of a restaurant in Kansas City (the “Insured”), purchased a commercial property insurance policy from Lexington Insurance Company (the ...

Since the enactment of the Hatch-Waxman Act in 1984, courts have held that brand companies can sue generics wherever they plan on making sales, which is everywhere in the U.S. In practice, most suits have been filed in Delaware and New Jersey, with suits against multiple generic companies over the same drug consolidated in one proceeding.

In November 2020, the Federal Circuit upended this settled practice when it issued its opinion in Valeant Pharmaceuticals v. Mylan Pharmaceuticals, No. 19-2402 (Fed. Cir. 2020), holding that venue is not established by contemplated future acts of ...

On October 21, 2020, President Trump signed into law the “Due Process Protections Act” (“DPPA”), P.L. No. 116-182, 134 Stat. Ann. 894, which was effective upon enactment. Receiving rare bi-partisan support in both houses of Congress, the new law seeks to bring balance to the power dynamic between the prosecution and the defense by requiring federal courts at the outset of a case to put the government on notice of its constitutional discovery obligations and the potential consequences for flouting those obligations.

By directly amending Federal Rule of Criminal Procedure ...