Gibbons Law Alert
An opinion from Judge Rebecca Doherty in In re Actos (Pioglitazone) Products Liability Litigation, MDL No. 11-2299, provides valuable lessons on the consequences of drafting overly-broad litigation hold notices, as well as the importance of providing evidence from knowledgeable witnesses in defense of document retention procedures.
Yesterday, the United States District Court for the District of New Jersey held that patents listed in the Approved Drug Products with Therapeutic Equivalence Evaluations (the “Orange Book”), but not asserted under the Hatch-Waxman framework, are subject to declaratory judgment actions by later ANDA filers seeking to trigger the first ANDA filer’s exclusivity period.
The New York Court of Appeals has vacated its recent decision in K2 Investment Group, LLC v. American Guarantee & Liability Insurance Co., reverting to the majority position that an insurer breaching its duty to defend an insured is not barred from relying on policy exclusions to defend a later claim for indemnification. The case originated from a related lawsuit where K2 Investment Group, LLC and ATAS Management Group, LLC (collectively, the “LLCs”) sued an attorney for legal malpractice.
The New Jersey Law Journal has named Gibbons P.C. the “General Litigation Department of the Year” for 2014, the top award presented in its second annual “Litigation Departments of the Year” awards program. The general litigation award recognized the firm’s litigation strength in several areas, including commercial litigation, products liability, employment, intellectual property, and media law. In 2013, the firm’s Business & Commercial Litigation Department was named the “Commercial Litigation Department of the Year” in the same awards program.
In 2006, responding to terrorist attacks in London and Madrid, the European Commission impelemented a data retention directive (the “Directive”) seeking to harmonize EU member states’ retention of certain electronic data that is generated or processed by providers of electronic communications services or public communications networks. The Directive requires, among other things, that Internet service providers retain details of network user communications and information necessary to identify particular users for at least six months and, in some cases, up to two years.
Recently, a Florida appellate court held that a former headmaster was not entitled to an $80,000 payment pursuant to a settlement agreement with his former employer, all thanks to his chats with his daughter about the settlement, and her subsequent Facebook post bragging about the settlement. Patrick Snay sued Gulliver Schools, Inc. for age discrimination and retaliation. Gulliver agreed to pay Snay, in part, $80,000 to settle all claims. The parties’ agreement contained a non-disclosure provision requiring the existence and terms of the settlement be kept confidential, and upon breach by Snay or his wife, the disgorgement of the $80,000 payment.
While most trade secrets cases are litigated in civil court, one former Microsoft employee learned the hard way that the theft of trade secrets is also a federal crime. Alex A. Kibkalo, a former Microsoft Corp. employee, was being prosecuted for leaking valuable company trade secrets to a blogger for publication. On March 31, 2014, Kibkalo’s counsel and the prosecution advised a district court judge in Washington that the government and Kibkalo had reached a plea agreement. Pursuant to the terms of the agreement, Kibkalo will spend three months in federal prison and pay Microsoft Corp. restitution of $22,500.
It’s been six months since the new model State Environmental Quality Review Act (SEQRA) Environmental Assessment Forms (EAFs) became effective on October 7, 2013, and many individuals are still scratching their heads on how to efficiently and effectively complete the forms. In an effort to assist and instruct government agencies and the public on how to use the new model EAFs, the New York State Department of Environmental Conservation (NYS DEC) has announced a series of webinars to be held this spring. The webinars are designed to demonstrate how the new EAFs, the web-based framework for the guidebooks developed by NYS DEC, and the EAF Mapper, a software mapping program, work together to streamline the EAF completion process by both project sponsors (applicants) and reviewing agencies.
On March 25, 2014, the United States Patent and Trademark Office (USPTO) announced that the Patent Trial and Appeal Board (PTAB) would be hosting roundtables across the country to educate the public, and collect feedback regarding the new America Invents Act (AIA) trial proceedings. These roundtables are free and open to the public. According to Deputy Under Secretary of Commerce for Intellectual Property and Deputy Director of the USPTO, Michelle Lee, “[t]hese roundtables are a part of USPTO’s ongoing efforts to provide more opportunities for the public and other key stakeholders to share ideas, feedback, experiences and insights on additional ways we can improve our processes.”
In a recent decision, the Delaware Supreme Court held a proponent of social media evidence may authenticate that evidence using the same forms of verification available under Delaware Rule of Evidence 901 to authenticate any other type of evidence, including witness testimony, corroborative circumstances, distinctive characteristics, or descriptions and explanations of the technical process or system that generated the evidence in question. In Parker v. State of Delaware, Delaware’s high court held that the trial judge may admit a social media post when there is evidence sufficient to support a finding by a reasonable juror that the proffered evidence is what its proponent claims it to be, leaving the jury to decide whether to accept or reject the evidence.