Gibbons Law Alert

Case Highlight: California District Court Refuses to Stay Civil Case Pending Resolution of Potential Criminal Prosecution

Posted in Trademark Counterfeiting / Trademarks

On April 21, 2015

In Sanrio, Inc. v. Ronnie Home Textile Inc., the U.S. District Court for the Central District of California recently refused to stay a civil case pending completion of a parallel criminal counterfeiting investigation. In Sanrio, the plaintiffs sued a corporation and two alleged principals for trademark infringement and other claims. The case was filed after law enforcement seized allegedly counterfeit goods offered for sale by the defendants and related evidence. The defendants argued that the civil case should be stayed because the seizure left them without means to substantively defend themselves. They further argued that allowing the civil case to go forward would implicate the individual defendants’ Fifth Amendment rights, though criminal charges had not been brought against them.

Third Circuit Confirms That Challenged Expert Testimony Must Survive Daubert Challenges in Order to Demonstrate Conformity with Rule 23

by Michael R. McDonald and Caroline E. Oks

Posted in Class Action Defense

On April 20, 2015

Drawing upon its own precedent and that of the Supreme Court in Comcast v. Behrend, the Third Circuit recently held in In re Blood Reagents Antitrust Litig. that a district court must resolve any Daubert challenges to proffered expert testimony as part of its “rigorous analysis” of the requirements for class certification.

Case Update: CryoLife Appeals Preliminary Injunction to Declaratory Judgment Defendant in Patent Case

by Samuel H. Megerditchian

Posted in Patent

On April 20, 2015

CryoLife, Inc. has appealed the preliminary injunction recently issued against it in the United States District Court for the District of Delaware barring sales of its PerClot Topical blood-clotting powder product. CryoLife Inc. v. C.R. Bard Inc. et al., Dkt. Entry No. 121, Notice of Appeal. CryoLife has asked United States Court of Appeals for the Federal Circuit to review the district court’s grant of a preliminary injunction based on CryoLife’s failure to present (1) an alternative non-infringement argument based on Medafor, Inc.’s proposed claim construction and (2) expert analysis to support its invalidity contentions. As security, Medafor has agreed to pay CryoLife $100,000 if the injunction is overturned.

2015 Amendments to New York State Brownfield Cleanup Program

by Gibbons P.C.

Posted in Development/Redevelopment

On April 20, 2015

After a number of failed attempts over the past several years, the New York State Legislature and Gov. Andrew Cuomo reached agreement as part of the 2015-16 state budget on sweeping amendments to the New York State Brownfield Cleanup Program (BCP). This achievement is significant in light of the scheduled expiration of tax credits under the program on December 31, 2015. The attached article published by Bloomberg BNA, reprinted with permission, and co-authored by David J. Freeman, reviews the key elements of the amended statute, evaluates their significance and identifies some of the important unresolved issues that will need to be addressed in implementing the new law.

Pennsylvania’s Paid Sick Leave Ordinance May Be Put On Permanent Bed Rest but Trenton’s Ordinance Survives Court Challenge

by Gibbons P.C.

Posted in Employee Benefits

On April 20, 2015

In response to the growing trend of municipalities enacting paid sick leave ordinances, business groups are trying to fight back. On April 15, 2015, the Pennsylvania Senate passed a bill that would overturn Philadelphia’s new paid sick leave law. In New Jersey, however, a court challenge to Trenton’s paid sick leave ordinance has hit a roadblock.

New Jersey Appellate Division Says Experts Cannot Serve as Conduits for Hearsay Conclusions from Non-testifying Experts

by Gibbons P.C.

Posted in General Litigation

On April 13, 2015

After our recent report concerning a recent New Jersey Supreme Court opinion on the use of hypothetical questions with expert witnesses, New Jersey’s Appellate Division, in a to-be-published opinion, also placed limits on appropriate questions for experts, holding that non-testifying experts’ opinions cannot be “bootstrapped” into the record by asking testifying experts if their conclusions are “consistent” with a non-testifying expert’s. James v. Ruiz, No. A-3543-13T2, 2015 N.J. Super. LEXIS 46 (App. Div. Mar. 25, 2015).

New Jersey Attorneys Must Face Ethics Charges for Facebook Friending

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On April 8, 2015

On February 3, 2015, the Appellate Division of the New Jersey Superior Court affirmed the dismissal of a complaint two attorneys filed against the Office of Attorney Ethics and its Director (collectively “OAE”) claiming OAE lacked authority to investigate and prosecute ethics grievances against them for “friending” a party to a litigation on Facebook. The Appellate Division’s decision is significant – it affirms OAE’s power to investigate and prosecute alleged ethical violations and demonstrates the potential consequences for attorneys’ improper use of social media in litigation.

Congress Reintroduces Innovation Act in Hopes to Curb Frivolous Patent Litigation

by Gibbons P.C.

Posted in Patent / USPTO

On April 7, 2015

Recently, House Judiciary Committee Chairman Robert Goodlatte reintroduced a patent reform bill, known as the Innovation Act of 2015 (H.R. 9) (“The Act”). This reintroduced bipartisan bill is substantially similar to its predecessor, Innovation Act of 2013. The Innovation Act of 2013 had received overwhelming support by the House of Representatives, but was ultimately tabled, along with other patent reform bills, due to bipartisan disputes.

SDNY Clarifies Standard for Allowable “Discovery on Discovery”

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On April 6, 2015

A requesting party seeking to compel discovery into the producing party’s document collection processes – sometimes called “discovery on discovery” – has always faced an uphill battle. Courts fear allowing discovery to continue indefinitely. Mere suspicion of deficient document production is insufficient; the requestor must proffer an “adequate factual basis” for its belief. Recently, the Southern District of New York found that such a showing is not made where the requestor produced only limited relevant unproduced emails and the requestor did not specify how its requested relief would remedy the alleged discovery defects.

The Patient Survives: Third Party Challenge to PTO Revival of Patent Application Barred under the Administrative Procedures Act

by Thomas J. Bean

Posted in Patent

On April 6, 2015

The Federal Circuit Court of Appeals recently held that a third party may not challenge a decision by the United States Patent and Trademark Office (“PTO”) to revive an application under the Patent Cooperation Treaty and enabling statutes (“PCT”) through the Administrative Procedures Act (“APA”). See Excela Pharma Sciences, LLC v. Lee, No. 13-1206 (Fed. Cir. Mar. 26, 2015). In combination with the Federal Circuit’s prior holding in Aristocrat Technologies Australia Pty Ltd. v. International Game Technology, 543 F.3d 657 (Fed. Cir. 2008), this holding puts such decisions beyond the reach of third parties, whether affirmatively attacked under the APA or defensively raised in a later infringement action.