Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Plaintiffs in Moldy Washing Machine Litigation May Proceed as a Class

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Posted in Class Action Defense

On December 12, 2012

A recent Seventh Circuit decision, authored by Judge Richard Posner, could have an impact on future class action litigations. In Butler, et al. v. Sears, Roebuck & Co.,—a lawsuit involving product defects that allegedly cause mold buildup in washing machines sold by Sears between 2001 and 2004—the Seventh Circuit sought to clarify “predominance,” a concept that, in the context of class action litigation, has been shrouded by ambiguity. In its opinion, the Seventh Circuit explained that “[p]redominance is a question of efficiency.” Put simply, predominance asks whether it is “more efficient . . . to decide some issues on a class basis or all issues in separate trials?”

ITC Finds That a “Pattern of Circumvention” is not Required Under Section 337(d)(2) to Obtain a General Exclusion Order

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Posted in International Trade Commission

On December 10, 2012

The International Trade Commission (the “ITC”) recently issued its opinion in Certain Lighting Control Devices Including Dimmer Switches and Parts Thereof (IV), Inv. No. 337-TA-776. The ITC opinion addressed whether the complainant had established the facts necessary for a finding of circumvention of a Limited Exclusion Order to justify the issuance of a General Exclusion Order. The ITC ultimately issued the General Exclusion Order sought by the complainant, disagreeing with the findings of the Administrative Law Judge and the recommendation of the Commission Investigative Staff.

Supreme Court Takes on Myriad

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Posted in Patent

On December 7, 2012

As anticipated, the Supreme Court has granted certiorari in Association for Molecular Pathology v. Myriad Genetics, et al. (the “Myriad” case) to review the Circuit Court’s opinion. The Court previously granted certiorari to vacate and remand the Federal Circuit’s Myriad decision for reconsideration in view of the Court’s 2012 decision in Mayo Collaborative Services, et al. v. Prometheus Laboratories, Inc. (“Mayo”). Notwithstanding Mayo, the Federal Circuit reached the same result on remand as its initial decision.

Communication Between Counsel and Client’s Independent Contractors May Be Privileged

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Posted in General Litigation

On December 6, 2012

The Eastern District of Pennsylvania recently found that communications generated and documents created by a party’s independent consultant may be entitled to attorney-client privilege protection. In In re Flonase Antitrust Litigation, direct and indirect purchasers of Flonase launched a class action against GlaxoSmithKline PLC (“GSK”) for allegedly delaying market entry of generic Flonase into the market. A dispute arose between GSK and direct purchasers as to whether the attorney-client privilege protects communications between GSK and its independent contractor, Swiftwater, which is a pharmaceutical consulting company. In this case, Swiftwater assisted GSK’s Flonase brand team in three areas: legal and regulatory, business development, and standard business practices. In the legal arena, Swiftwater assisted in the evaluation of legal and regulatory matters, such as evaluating GSK’s patent and intellectual property rights and FDA application to market over-the-counter Flonase.

U.S. v. Aleynikov Redux: Senate Closes Loophole in EEA

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Posted in Trade Secrets

On December 6, 2012

This past spring, we reported the Second Circuit’s reversal in U.S. v. Aleynikov, where the Court considered violations of the Economic Espionage Act of 1996 (“EEA”), 18 U.S.C. § 1832, and the National Stolen Property Act (“NSPA”), 18 U.S.C. § 2314. In short, the Second Circuit ruled that the EEA pertains to trade secrets “placed in” commerce, and that Aleynikov’s alleged misappropriation of the source code of Goldman Sachs & Co.’s trading system, which was for internal use, therefore was not violative of the EEA or the NSPA.

NJIPLA Pharmaceutical/Chemical Patent Practice Program

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Posted in Patent

On December 3, 2012

The 26th Annual New Jersey Intellectual Property Law Association (NJIPLA) Pharmaceutical/Chemical Patent Practice Update will feature the Honorable Faith S. Hochberg of the United States District Court for the District of New Jersey, who will provide a judge’s perspective on emerging issues under the AIA. The program will take place on December 5, 2012, from 12:00 – 5:15 p.m. at the Woodbridge Hilton in Iselin, New Jersey. The program offers 4.5 NJ and NY CLE credits, and 4.0 PA CLE credits, and will also provide a look at Already v. Nike, antitrust pitfalls in product improvements, and new issues regarding biotech patents.

Patent Litigators: Be Careful What You Plead, Part II

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Posted in Patent

On December 3, 2012

We previously reported on a sua sponte Memorandum Order where Senior U.S. District Court Judge Milton I. Shadur of the Northern District of Illinois took counsel to task for the quality of its answer and counterclaim. In New Paradigm Enterprises, Inc., d/b/a Q101 v. Merlin Media LLC, No. 12 C 5160, Slip Op. (N.D. Ill. Oct. 12, 2012), Judge Shadur again took issue with the pleadings. This time, the Court sua sponte found New Paradigm’s responses to Merlin Media’s answers, counterclaims and affirmative defenses to be “problematic.”

Gibbons Director David Freeman Reelected President of the New York City Brownfield Partnership

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 30, 2012

David J. Freeman, a Director in the Real Property & Environmental Department of Gibbons P.C., has been unanimously reelected to a second term as president of the New York City Brownfield Partnership, a public/private nonprofit organization dedicated to promoting the cleanup and redevelopment of brownfields in New York City. The Partnership is a member organization of more than 40 real estate developers and owners, community organizations, governmental agencies, and environmental professionals who are active on brownfield matters.

Commercial Tenant Relieved of Duty to Maintain Common Areas in N.J. Appellate Division Decision

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 29, 2012

Commercial tenants in multi-tenant shopping centers can now breathe a sigh of relief as the New Jersey Appellate Division in Kandrac v. Marrazzo’s Market of Robbinsville, safeguards the boundaries of commercial tenant liability for business invitees, reiterating that a commercial tenant does not owe a duty to its patrons to maintain a common area, such as a parking lot, that the landlord is contractually obligated to maintain.

Kappos to Leave His Post, What Next . . .?

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Posted in Patent

On November 29, 2012

As practitioners learned, The United States Patent and Trademark Office (USPTO) has confirmed that Director David Kappos plans to retire from his post in January 2013 after nearly three and a half years of service to the USPTO. Kappos’ Tenure – Director Kappos was sworn in as Under Secretary of Commerce for Intellectual Property and Director of the USPTO on August 13, 2009. His tenure has been evidenced by major change both within the USPTO and through the enactment of the Leahy Smith America Invents Act (herein “AIA” or “Act”) impacting global patent practice.

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