Gibbons Law Alert

Gibbons Law Alert Blog

Increased Patent Litigation in the District of Delaware?

Posted in Patent

On November 3, 2011

Following last month’s enactment of the Leahy-Smith America Invents Act (“AIA”), significant limitations on multidefendant infringement suits are now in effect. Specifically, the joinder provision of the AIA, 35 U.S.C. § 299, permits accused infringers to be joined in one action only if any right to relief is asserted against the parties jointly, severally, or arising out of the same transactions or occurrences; and, common questions of fact as to all defendants will arise in the case. Simply put, patentees can no longer sue multiple defendants in the same litigation based solely on allegations that they each have infringed the patent(s)- in-suit.

NJDEP to Issue Draft Remedial Priority Scores for Contaminated Sites

by Brett S. Theisen

Posted in Environmental and Green Issues

On November 2, 2011

In the next few weeks, responsible parties for some 12,000 known contaminated sites in New Jersey will be receiving a letter with a draft Remedial Priority Score (RPS) for their particular site compliments of the New Jersey Department of Environmental Protection (NJDEP). The NJDEP has not specified how the rankings will be used, although the RPS system has been described by the NJDEP as “a triage tool to sort sites for further consideration.”

Ninth Circuit Rules that Magnuson-Moss Warranty Act Prohibits Mandatory Arbitration in Warranties, Creating a Circuit Split

by Michael R. McDonald

Posted in General Litigation

On November 1, 2011

The Ninth Circuit in Kolev v. EuroMotors West/The Auto Gallery held that The Magnuson Moss Warranty Act (“MMWA”) “precludes enforcement of pre-dispute agreements . . . that require mandatory binding arbitration of consumer warranty claims.” The Ninth Circuit’s ruling would essentially prohibit manufacturers and distributors of consumer products from attempting to take advantage of the Supreme Court’s recent pro-arbitration rulings, including AT&T Mobility v. Concepcion, involving MMWA consumer warranty claims. Thus, to the extent the MMWA precludes arbitration clauses, class waivers in such clauses, which Concepcion rendered immune from invalidation under state laws, would thus likewise be unenforceable in MMWA actions, providing a complete end-run around Concepcion.

Is It Open Season Now for NPEs?

by Gibbons P.C.

Posted in Patent

On October 31, 2011

Among other changes, the America Invents Act (“AIA”) includes the new 35 U.S.C. § 299. This statute purports to reduce the ability of a patent owner to join multiple, unrelated defendants in a single action, a tactic often used by litigious non-practicing entities (“NPEs”), who press for nuisance value settlements. In addition, the AIA commissioned the Government Accounting Office (“GAO”) to study the consequences of NPEs, to include their costs, benefits and economic impact.

Keynote Speaker Announced for Gibbons Fifth Annual E-Discovery Conference

by Gibbons P.C.

Posted in Corporate Information and Records Management Policies / E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies / Technology Developments and Issues

On October 29, 2011

Gibbons is pleased to announce that the Honorable Edwin H. Stern (ret.) will present a brief keynote address where he will provide an insider’s view of some e-discovery concerns facing the courts today at the Gibbons Fifth Annual E-Discovery Conference, which will be held at the Sheraton Meadowlands Hotel & Conference Center in East Rutherford, NJ.

Creditors of Insolvent Delaware Limited Liability Companies Lack Standing to Pursue Derivative Claims

by Christopher Viceconte

Posted in General Litigation

On October 28, 2011

Relying on the plain language of Delaware’s Limited Liability Company Act, the Delaware Supreme Court, in CML V, LLC v. John Bax, et al., recently ruled that creditors of insolvent Delaware limited liability companies lack standing to sue derivatively for their managers’ alleged breach of their fiduciary duties. According to Chief Justice Myron T. Steele, writing for the Court, 6 Del. C. § 18-1002 of Delaware’s Limited Liability Company Act is “unambiguous and limits derivative standing in LLCs exclusively to ‘member[s]’ or ‘assignee[s].’” In so holding, the Court distinguished insolvent LLCs from insolvent corporations, which are subject to derivative claims by creditors, noting that “the General Assembly is free to elect a statutory limitation on derivative standing for LLCs that is different than that for corporations, and thereby preclude creditors from attaining standing.”

Gearing Up for the Litigation Hold Panel Discussion at Gibbons Fifth Annual E-Discovery Conference

by Gibbons P.C.

Posted in Litigation Preparedness and Strategies

On October 26, 2011

Have you ever felt daunted by the prospect of issuing a litigation hold? If so, you are not alone — particularly in today’s dynamic legal environment, where even judges within the same judicial district disagree as to what is required to satisfy the duty to preserve evidence and avoid spoliation sanctions. Please join us at Gibbons Fifth Annual E-Discovery Conference, where we will deconstruct an effective litigation hold notice paragraph-by-paragraph, explaining why each element is included and how to tailor hold notices to any litigation. We will also explain recent developments in this area of the law, which you can draw on to position your company to effectively issue and administer litigation holds, avoid game-changing spoliation sanctions and return the focus to litigating matters on the merits.

First Annual Electronics, Telecom and Software Patent Practice Update

by Gibbons P.C.

Posted in Patent

On October 26, 2011

The New Jersey Intellectual Property Law Association (“NJIPLA”) will be hosting its first annual “Electronics, Telecom and Software Patent Practice Update” on Wednesday, November 9, 2011, from 12:00-5:15 pm at the New Brunswick Hyatt. This informative event is co-chaired by Robert E. Rudnick, a Director in the Gibbons Intellectual Property Department and Vice President of the NJIPLA, who will also be a panelist at the event speaking on the recently enacted Leahy-Smith America Invents Act and its impact on patent protection in the electrical arts.

E-Discovery Blog Post Written by Mark S. Sidoti Chosen as “Pick of the Week” by LitigationWorld

by Gibbons P.C.

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

On October 26, 2011

In its October 3, 2011 issue, the editorial team of LitigationWorld chose Mark S. Sidoti’s September 28, 2011 blog post entitled New Jersey District Judge Grants Spoliation Sanctions Citing Negligent Litigation Hold Procedures as its Pick of the Week. LitigationWorld is a free weekly email newsletter that provides helpful tips regarding electronic discovery, litigation strategy, and litigation technology. Each week, the editorial team chooses the most noteworthy and insightful articles on the litigation web published during the previous week and, from those, selects one as their Pick of the Week.

ABA Formal Opinion 11-460 is at Odds With Stengart v. Loving Care Agency, Inc.

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On October 25, 2011

The American Bar Association recently published Formal Opinion 11-460 to provide guidance to attorneys regarding their ethical duty upon discovering emails between a third party and the third party’s attorney. The Opinion interprets Model Rule 4.4(b) literally, concluding that neither that rule nor any other requires an attorney to notify opposing counsel of receipt of potentially privileged communications. The Opinion is of particular note because it directly contradicts the New Jersey Supreme Court’s opinion in Stengart v. Loving Care Agency. Inc. 201 N.J. 300 (2010).