Commercial Courtwatch | Week of 8/26/24
Antitrust | Dismissal of § 2 claim reversed for judge’s failure to consider anticompetitive effect of defendant’s otherwise lawful actions as a whole. Fourth Circuit.
Copyright | District court imposed too high a burden when instructing the jury that a “causal relationship between the defendant's infringement and the defendant's revenues” were required for copyright infringement damages. First Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Antitrust | Dismissal of § 2 claim reversed for judge’s failure to consider anticompetitive effect of defendant’s otherwise lawful actions as a whole. Fourth Circuit.
Copyright | District court imposed too high a burden when instructing the jury that a “causal relationship between the defendant's infringement and the defendant's revenues” were required for copyright infringement damages. First Circuit.
Copyright | No “sophisticated plaintiff” exception to the discovery rule in copyright cases. Second Circuit.
Foreign Discovery | District must provide reasons for granting and denying foreign discovery motion under 28 U.S.C. § 1782. Fifth Circuit.
Jurisdiction | Look-through rule applies to LLC members when analyzing diversity jurisdiction. Second Circuit.
Jurisdiction | No appellate jurisdiction over denial of motion to join government entity that has sovereign immunity under collateral order doctrine. Fourth Circuit.
Trademark | Parties’ relative size and financial resources not relevant to whether Lanham Act case “exceptional” and warranting of attorneys’ fees. Third Circuit.
Patent | Application of patent misuse doctrine is question of law reviewed de novo after bench trial. Ninth Circuit.
Patent | No Art. III standing to appeal IPR decision when patentee withdrew infringement suit. Federal Circuit.
Patent | On-sale bar precluded ITC action for patented process that was “in secret use . . . and sold” one year before effective filing date of patent. Federal Circuit.
Preemption | Consumer’s state law mislabeling claims expressly preempted by the FDCA. Second Circuit.
Procedure | Forum non conveniens analysis gets case back to forum designated in unassented-to forum selection clause. Tenth Circuit.
Commercial Courtwatch | Week of 8/26/24
Antitrust | Dismissal of § 2 claim reversed for judge’s failure to consider anticompetitive effect of defendant’s otherwise lawful actions as a whole. Fourth Circuit.
Copyright | District court imposed too high a burden when instructing the jury that a “causal relationship between the defendant's infringement and the defendant's revenues” were required for copyright infringement damages. First Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Antitrust | Dismissal of § 2 claim reversed for judge’s failure to consider anticompetitive effect of defendant’s otherwise lawful actions as a whole. Fourth Circuit.
Copyright | District court imposed too high a burden when instructing the jury that a “causal relationship between the defendant's infringement and the defendant's revenues” were required for copyright infringement damages. First Circuit.
Copyright | No “sophisticated plaintiff” exception to the discovery rule in copyright cases. Second Circuit.
Foreign Discovery | District must provide reasons for granting and denying foreign discovery motion under 28 U.S.C. § 1782. Fifth Circuit.
Jurisdiction | Look-through rule applies to LLC members when analyzing diversity jurisdiction. Second Circuit.
Jurisdiction | No appellate jurisdiction over denial of motion to join government entity that has sovereign immunity under collateral order doctrine. Fourth Circuit.
Trademark | Parties’ relative size and financial resources not relevant to whether Lanham Act case “exceptional” and warranting of attorneys’ fees. Third Circuit.
Patent | Application of patent misuse doctrine is question of law reviewed de novo after bench trial. Ninth Circuit.
Patent | No Art. III standing to appeal IPR decision when patentee withdrew infringement suit. Federal Circuit.
Patent | On-sale bar precluded ITC action for patented process that was “in secret use . . . and sold” one year before effective filing date of patent. Federal Circuit.
Preemption | Consumer’s state law mislabeling claims expressly preempted by the FDCA. Second Circuit.
Procedure | Forum non conveniens analysis gets case back to forum designated in unassented-to forum selection clause. Tenth Circuit.
Commercial Courtwatch | SCOTUS 2023-2024 Term Roundup Edition
APA | Statute of limitations for APA claims begins running from the date of plaintiff’s injury, not from the date of agency action (and interesting concurrence on the vacature vs. injunction remedy). Corner Post v. Board of Governors.
APA | Chevron is overruled. Loper Bright v. Raimondo.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
APA | Statute of limitations for APA claims begins running from the date of plaintiff’s injury, not from the date of agency action (and interesting concurrence on the vacature vs. injunction remedy). Corner Post v. Board of Governors.
APA | Chevron is overruled. Loper Bright v. Raimondo.
Arbitration | Nature or employee’s job (not employer’s industry) controls applicability of FAA exemption for transportation workers. Bissonnette v. LePage Bakeries Park St.
Arbitration | If two contracts conflict as to whether the parties’ dispute belongs in arbitration a court must decide which contract governs. Coinbase v. Suski.
Arbitration | Court can’t dismiss case when party properly requests stay pending arbitration. Smith v. Spizzirri.
Appropriations Clause | Congressional authority for CFPB to draw money from Federal Reserve satisfies appropriations clause. CFPB v. CFSA.
Banking | State law regulating bank activity preempted only if it significantly interferes with a national bank’s exercise of its powers. Cantero v. Bank of America.
Bankruptcy | The bankruptcy code does not authorize a release and injunction that, as part of a plan of reorganization under Chapter 11, effectively seek to discharge claims against a nondebtor without the consent of affected claimants. Harrington v. Purdue Pharma.
Bankruptcy | Bankruptcy Clause’s fee uniformity requirement not violated by temporary past fee disparity between districts, so no refund due. Office of the U.S. Trustee v. John Q. Hammons Fall 2006, LLC.
Bankruptcy | Party-in-interest not limited to those whose obligations differ pre vs. post bankruptcy plan. Truck Insurance v. Kaiser Gypsum.
Copyright | Three-year SOL not limit damages under Copyright Act. Warner Chappell Music v. Nealy.
Securities | Pure omissions not actionable under Rule 10b-5. Macquarie Infrastructure Corp. v. Moab Partners, L.P.
Takings | Fifth Amendment takings clause not distinguish between legislative and administrative land-use permits. Sheetz v. County of Eldordo.
Takings | Unclear if Fifth Amendment takings clause requires federal private right of action for money damages. DeVilliar v. United States.
Tax | Mandatory Repatriation Tax needn’t be apportioned. Moore v. U.S.
Tax | Obligation to redeem shares not a corporate liability for tax purposes. Connelly v. United States.
Trial | In civil penalties case against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial. SEC v. Jarkesy.
Whistleblowers | Whistleblower need not prove retaliatory intent to be covered under SOA. Murray v. UBS.
Commercial Courtwatch | Week of 7/15/24
Antitrust | Plaintiff must plead/prove that antitrust exemption for union activity not apply. Second Circuit.
Arbitration | District court lacked power to compel Samsung to arbitrate consumers’ privacy claims after Samsung’s refusal to pay AAA’s fees. Seventh Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Antitrust | Plaintiff must plead/prove that antitrust exemption for union activity not apply. Second Circuit.
Arbitration | District court lacked power to compel Samsung to arbitrate consumers’ privacy claims after Samsung’s refusal to pay AAA’s fees. Seventh Circuit.
Arbitration | Forum non conveniens not defense to enforcement of foreign arbitral award in US district court. Third Circuit.
Class Actions | Class representative had standing to represent absent class members even if unclear whether class representative’s harms were analogous to those of other circuit splits. Fifth Circuit.
Contract | Force majeure clause that impacted gas delivery during Winter Storm Uri didn’t require legal impossibility, but did require attempting to mitigate effect on performance. Fifth Circuit.
Contract | Letter from public health department requiring shutting down of public gathering (not Covid-19 pandemic itself) was basis force maejure-based termination. Sixth Circuit.
Copyright | No copyright protection for model building codes that were ultimately incorporated into law in Canada. Fifth Circuit.
Copyright | No damages for copyright infringement based on foreign sales and damages need to be reduced by valued added to infringing products by infringer. Seventh Circuit.
Debt | Whether foreign notes are valid hinges on law of issuer’s jurisdiction despite NY choice-of-law clause. Second Circuit.
ERISA | Insurer permissibly denied life insurance benefits to survivors of mountaineer whose dead body was never recovered because unclear if death was “caused solely by an accident.” Eleventh Circuit.
Ethics | Dismissal order vacated under 28 U.S.C. § 455 because judge’s wife owned stock in defendant corporation at inception of suit, but not at time of dismissal order. Second Circuit.
Insurance | Only right of possession remains as insurable interest post-foreclosure proceeding. Seventh Circuit.
Patent | Dismissal reversed because drug label + public statements sufficient to survive MTD because induced infringement because how statements are perceived is a factual question. Federal Circuit.
Patent | Gaming patents found invalid under Alice. Federal Circuit.
Personal Jurisdiction | Website subject to personal jurisdiction in state where it sent marketing messages to ISP’s customers. Tenth Circuit.
Securities | Breach of fiduciary duty was close common law analogous to Exchange Act’s “short-swing” profit provision, so no Art. III standing problem. Second Circuit.
Trade Secret | Preliminary injunction vacated because trade secret imprecisely defined and injunction scope suffered from similar lack of imprecision. Federal Circuit.
Commercial Courtwatch | Week of 7/1/24
Appellate | Interlocutory appeal of stay in PG&E securities litigation appropriate because district court’s sua spent stay both “lengthy and indefinite.” Ninth Circuit.
Arbitration | FAA not give federal courts jurisdiction to adjudicate petition to vacate arbitration award—need independent basis like diversity or federal question, but “a claim of manifest disregard of federal law doesn’t present a federal question.” Fourth Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Appellate | Interlocutory appeal of stay in PG&E securities litigation appropriate because district court’s sua spent stay both “lengthy and indefinite.” Ninth Circuit.
Arbitration | FAA not give federal courts jurisdiction to adjudicate petition to vacate arbitration award—need independent basis like diversity or federal question, but “a claim of manifest disregard of federal law doesn’t present a federal question.” Fourth Circuit.
Contract | Electronically “acknowledging” PIIA enough to make terms binding on employee as a matter of contract law in later copyright dispute. D.C. Circuit.
Contract | No enforceable requirements contract without clear quantity, even with evidence of past purchase orders. Sixth Circuit.
Damages | Post-judgment interest accrues on total of judgment + pre-judgment interest. Delaware Supreme Court.
Injunctions | Irreparable harm no less important when movement shows likelihood of success on the merits. Federal Circuit.
M&A | Chancery court dismissal of BitGo’s claim for repudiation of merger agreement with Galaxy reversed because meaning of “Company 2021 Audited Financial Statements” ambiguous, necessitating consideration of extrinsic evidence. Delaware Supreme Court.
M&A | All members of special committee must be independent to cleanse spin-out transaction and avoid entire-fairness review. Delaware Supreme Court.
Patent | The same conditions for patentability that apply to utility patents apply to design patents, going back to applying 1966 Graham v. John Deere Co. SCOTUS decision. En banc Federal Circuit.
Patent | Section 284 damages for foreign infringement permitted if patentee shows "causal relationship" between the infringing act within the country, overruling Power Integrations. Federal Circuit.
Patent | Prior appeal revering district court’s grant of enhanced damages after jury verdict kept patents susceptible to attack before a “final judgment,” and interim patent invalidity ruling nullifies jury verdict of infringement. Federal Circuit.
Patent | Art. III standing not lost based on loan agreement agreement that provided patentee option to assign patents to lender upon default. Federal Circuit.
Securities | Anonymous criticism of management’s disclosures regarding acquisition insufficient to plead scienter for valid 10(b) claim. Ninth Circuit.
Summary Judgment | District court’s denial of summary judgment is not appealable after a trial on the merits. Federal Circuit.
Trademark | Lanham Act not preclude judicial review of PTO’s trademark grant. Fourth Circuit.
Commercial Courtwatch | Week of 12/3/23
Insurance | No coverage for industrial service company for $222M verdict because company didn’t step into shoes of other subcontractor after its parent acquired previous subcontractor, Tenth Circuit hold.
Class Actions | Approval of Mercedes-Benz paint defect class action not abuse of discretion even though 80% of class not receive any benefit because the district court’s review process sound, per Eleventh Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Insurance | No coverage for industrial service company for $222M verdict because company didn’t step into shoes of other subcontractor after its parent acquired previous subcontractor, Tenth Circuit hold.
Class Actions | Approval of Mercedes-Benz paint defect class action not abuse of discretion even though 80% of class not receive any benefit because the district court’s review process sound, per Eleventh Circuit.
Class Actions | CAFA’s “securities-related” exemption deprived federal court of jurisdiction over state court suit alleging breach of fiduciary duty to shareholders, per Second Circuit.
MDLs | Ninth Circuit affirms dismissal of fraud and unfair conduct claims for Intel’s failure to disclose design defects due to poor pleading.
Arbitration | Second Circuit reverses denial of motion to compel arbitration because consumer was on “inquiry notice” of whether an arbitration clause governed her contract.
Arbitration | Coinbase’s arbitration delegation clause not unconscionable, and district court erred in holding otherwise, Ninth Circuit holds.
Patents | Statutory requirement for PTAB to issue decision within 1 year no jurisdictional, and remedy for failure to issue is mandamus, per Federal Circuit in dispute between Purdue and Collegium Pharma.
Patents | Federal Circuit vacates VLSI’s $2.2 B verdict against Intel.
Securities | Former spouse may have claim to asset purchased by husband with illicit funds because childcare may count as consideration for the asset, First Circuit holds.
Securities | Disclosing that a risk that’s already occurred “could” occur can support securities fraud claim, Ninth Circuit holds.
Commercial Courtwatch | Week of 11/26/23
Corporate—An acquisition involving Jay-Z’s music streaming company may be “terrible business decision” and “by all accounts, a terrible deal,” but that doesn’t mean the board faced substantial liability for approving it, so demand futility not apply. Chancery dismissed case. DE Supreme Court affirmed.
False Claims Act—Service of process clock under FRCP 4(m) only begins to run once the district court orders service of the unsealed complaint, per Second Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Corporate—An acquisition involving Jay-Z’s music streaming company may be “terrible business decision” and “by all accounts, a terrible deal,” but that doesn’t mean the board faced substantial liability for approving it, so demand futility not apply. Chancery dismissed case. DE Supreme Court affirmed.
False Claims Act—Service of process clock under FRCP 4(m) only begins to run once the district court orders service of the unsealed complaint, per Second Circuit.
Class Actions—Third Circuit rejects class settlement for $9 million in “gift cards” of which $2.9 million was claimed, which included $3mm for class counsel because district court erred in not considering appropriateness of using amount claimed as gauge of reasonableness of class fee.
Jurisdiction—No specific jurisdiction over defendants’ actions that violated state privacy law because actions part of general business practices everywhere, Ninth Circuit holds.
Securities—Board not required to approve sale of securities to issuer’s beneficial owner for specific purpose of exempting transaction from 16(b) liability in order to trigger exemption under SEC rule, Ninth Circuit holds.
Trial—Damages verdict vacated because district court erred in letting plaintiff’s CFO testify as lay witnesses under FRE 701 about company’s projected profits without satisfying requirements of FRE 702, per Tenth Circuit.
Patent—Federal Circuit vacates stipulated judgment of infringement vacated because district court failed to address extrinsic evidence that bore on meaning of patent term to POSITA during claim construction.
Patent—Filing subsequent infringement suits in violation of Kessler doctrine justified deeming dismissal of subsequent suits “exceptional” and awarding $5mm in attorneys’ fees, Federal Circuit holds in 2-1 decision.
Patent—No Art. III requirement for filing IPR, but you can’t appeal rejection of IPR to Federal Circuit.
Commercial Courtwatch | Week of 2/22/23
Arbitration | Tenth Circuit holds effective vindication exception nixed applicability of arbitration provision in ERISA plan documents.
Arbitration | Second Circuit unsure if FAA exemption applies to transportation workers or transportation industry.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Getting caught up on business litigation from the Federal Courts of Appeals and Delaware, made easy.
Arbitration | Tenth Circuit holds effective vindication exception nixed applicability of arbitration provision in ERISA plan documents.
Arbitration | Second Circuit unsure if FAA exemption applies to transportation workers or transportation industry.
Arbitration | Functus officio doctrine doesn't prevent district court from remanding case to arbitrator to issue a "reasoned" award. See Second Circuit.
Bankruptcy | No Texas Two Step for J&J, because bankruptcy court is for companies in financial distress. See Third Circuit.
Corporate Law | No chancery court jurisdiction over dispute about parties’s right to appoint arbitrator.
Corporate Law | Caremark analysis applies to D&Os, and corporate officer breached duty of loyalty by sexually harassing an employee, Del. Chancery holds.
Corporate Law | A conflicted acquirer underpays if merger price doesn’t account for acquirer’s breach of fiduciary duty, per Del. Chancery.
Venue | District court should reassess forum non conveniens analysis now that civil defendants are also criminal defendants in the district. See First Circuit.
Patents | Court erred in claim construction by relying on dictionary meaning of “enlarged chamber” instead of meaning understood by a skilled artisan. See Federal Circuit.
Patents | Jury verdict set aside under prosecution laches due to "institutionalized abuse" of the patent system, per Federal Circuit.
Patents | Low-data video streaming patent invalid under 101, per Federal Circuit.
Commercial Courtwatch | Week of 1/12/23
Patent | Discovery order maintaining attorney eyes only designation on source code not reviewable collateral order. Federal Circuit.
Trial | District court not abuse discretion in excluding infringement theory that was disclosed four months before trial. Federal Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Getting caught up on business litigation from the Federal Courts of Appeals and Delaware, made easy.
Patent | Discovery order maintaining attorney eyes only designation on source code not reviewable collateral order. Federal Circuit.
Trial | District court not abuse discretion in excluding infringement theory that was disclosed four months before trial. Federal Circuit.
Insurance | DJ action seeking a duty to defend generally becomes justiciable earlier than DJ action for a duty to indemnify. Second Circuit.
Banking | Service members’s claims against banks under JASTA fails for failure to plead a direct link between bank activities and terrorism activities that turn on legal disputes are not cognizable under the FCRA, per Second Circuit.
Corporate Law | Series A investor can't use "shady" tactic to disqualify a board candidate that would break deadlock yet claim a receiver needs appointing because of deadlock. Del. Chancery.
Corporate Law | Plaintiff entitled to fees under "corporate benefit doctrine" for writing unsolicited letter to SPAC board correctly advising on required stockholder vote. Del. Chancery.
Corporate Law | Can't infer that board demand futile because of chance of director liability if in separate litigation court found no liability on the merits. Del. Chancery.
Securities | Mass solicitation of securities on social media can make you a 12(a) statutory seller under 33 Act. Ninth Circuit.
TCPA | Facebook not violate the TCPA by sending automated birthday messages because messages not involve autodialer that randomly or sequentially generated phone numbers. Ninth Circuit.
Commercial Courtwatch | Week of 12/26/22
ERISA | In ERISA denial-of-benefits cases, factual disputes over administrative record should be resolved via Rule 52 bench trial, not quasi summary judgment proceeding employed by other circuits on the briefs. Fourth Circuit.
FCA | Whistleblower going outside chain of command to document FCA violations triggered expanded retaliation protection in 2010 FCA amendments as "other efforts.” Third Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
ERISA | In ERISA denial-of-benefits cases, factual disputes over administrative record should be resolved via Rule 52 bench trial, not quasi summary judgment proceeding employed by other circuits on the briefs. Fourth Circuit.
FCA | Whistleblower going outside chain of command to document FCA violations triggered expanded retaliation protection in 2010 FCA amendments as "other efforts.” Third Circuit.
FCA | No attorneys fees for FCA whistleblower who received fee amount under private fee sharing agreement with co-whistleblower. First Circuit.
Bankruptcy | Bankruptcy Court not err in rejecting DCF analysis showing solvency in favor of liquidation analysis showing insolvency. Second Circuit.
M&A | No standing for security-holders of parent company to challenge misstatements by target company about itself prior to merger. Second Circuit.
Appeals | State supreme court decision holding that its new rule applies prospectively applies to pending appeals. First Circuit.
Patents | If whether prior art invalidates patent turns on credibility of prior art manufacturer then summary judgment improper even if non-movant failed to oppose. Federal Circuit.
Patents | Jury could conclude that "RFID for Dummies" disclosed patented claims, making MSJ grant improper. Federal Circuit.
Commercial Courtwatch | Week of 12/15/22
Jurisdiction | Attorney sanctions upheld because of "a veritable tsunami of decisions finding no Article III standing.” Tenth Circuit.
Contracts | Email exchange didn't form valid contract because it lacked "essential term," and denial of motion to amend not error. Eighth Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Jurisdiction | Attorney sanctions upheld because of "a veritable tsunami of decisions finding no Article III standing.” Tenth Circuit.
Contracts | Email exchange didn't form valid contract because it lacked "essential term," and denial of motion to amend not error. Eighth Circuit.
Civil Procedure | Failure to update process server information nixed 60(b) arguments to set aside default judgment. Eighth Circuit.
Class Actions | Uber settlement not "coupon settlement" subject to CAFA attorney fee restrictions. Ninth Circuit.
False Advertising | "Flora-Bama Lodge" and MTV's Floribama not sufficiently confusing under Lanham Act. Eleventh Circuit.
Energy | FERC must show its work. DC Circuit.
Arbitration | No jurisdiction to confirm/vacate arbitral award under FAA Section 9 based on look through rule, even if underlying dispute is ERISA federal question issue. Eighth Circuit.
Patents | Error for expert to rely on ordinary meaning of limitation even if it's consistent with meaning the parties agreed to. Federal Circuit.
Commercial Courtwatch | Week of 11/23/22
Venue | District court not have to transfer venue if it doesn't want to, and it doesn't matter if not transferring would make the case time-barred. Fifth Circuit.
Immunity | Military equipment sales from US to South Korea not "commercial activity" under FSIA exception to sovereign immunity. Fourth Circuit.
Chronicling business litigation from the Federal Courts of Appeals and Delaware
Getting caught up on business litigation from the Federal Courts of Appeals and Delaware, made easy.
Venue | District court not have to transfer venue if it doesn't want to, and it doesn't matter if not transferring would make the case time-barred. Fifth Circuit.
Immunity | Military equipment sales from US to South Korea not "commercial activity" under FSIA exception to sovereign immunity. Fourth Circuit.
Jurisdiction | No Art III standing because at oral argument judge came up with hypothetical where plaintiffs wouldn't incur damages. Fifth Circuit.
Jurisdiction | Can't consolidate two cases if court lacks subject-matter jurisdiction over one of them, even if find out after trial.... Fourth Circuit.
Human Remains | Human remains are "cargo" under Montreal Convention, preempting civil suit. Who knew. Second Circuit.
Energy | Gotta present RFRA challenge to gas pipeline to FERC first. Third Circuit.
Insurance | Insured didn't bargain for but-for causation standard re police term of "because of.” Ninth Circuit.