Gibbons Law Alert
The attorney-client privilege is one of the most sacrosanct and inviolable, allowing full and frank dialogue between client and counsel. The recent decision in BSP Software LLC v. Motio, Inc., 1-12-cv-02100 (ND Ill. July 9, 2013) DN 141, Order has broad implications for this well-established privilege, and important lessons-learned for when it might be waived.
On June 28th, U.S. District Judge Lorna G. Schofield of the Southern District of New York entered a default judgment in favor of the National Football League® (“NFL®”) against operators of more than 1,997 websites utilizing 1,223 infringing domain names, all of which were offering counterfeit NFL merchandise. In doing so, the District Court awarded the NFL a $273 million judgment against the website operators and injunctive relief.
When the Borough of Harvey Cedars took a portion of the beachfront property of Harvey and Phyllis Karan to allow the Army Corps of Engineers to construct a protective dune, the Karans lost their view of the ocean, and a court awarded them $375,000 as compensation for the drop in the value of their $1.7 million home. In a momentous decision with important ramifications for shore protection efforts and for a much broader category of eminent domain cases, the New Jersey Supreme Court held that “just compensation” for the Karans should also have reflected the quantifiable benefits that they received as a result of the improved flood protection provided by the dune.
In Lynch v. Tropicana Products, Inc., a Federal District Court in New Jersey refused to toss a putative class action against Tropicana alleging that its “100% pure and natural” claim, and its advertisement showing an orange being “pierced” by a straw ― inferring that the consumer is essentially drinking right from the orange ― is false and misleading.
The generic pharmaceutical industry faced a Catch-22 when a serious adverse reaction arose from use of a generic drug product, and the manufacturer was restrained from unilaterally amending the product label to conform to state requirements, due to the Supreme Court’s decision in PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011). PLIVA held that state requirements to change a label are pre-empted by the Federal Food, Drug and Cosmetic Act’s prohibition of changing labeling without authorization by the FDA.
In a recent decision in Carolina Bedding Direct, LLC v. Downen, United States Magistrate Judge Monte C. Richardson shed light on the limitations placed on discovery by Federal Rule of Civil Procedure 26 and the circumstances under which a requesting party will be denied wholesale access to a responding party’s computer, cell phone, and email account. The decision also reinforces that courts are unlikely to question a responding party’s certification of compliance with discovery requests absent a real showing of improper conduct, even if it is shown that the responding party failed to produce its own email and text messages that were later produced by another party.
On June 25, 2013, the Delaware Court of Chancery paved the way for the boards of directors of Delaware corporations to amend their bylaws to include forum selection clauses requiring any litigation related to the corporation’s internal affairs to be conducted in Delaware courts. Adopting such provisions is intended to avoid the inefficiency and cost of Delaware corporations having to defend against the same litigation in multiple forums (e.g., both in Delaware and the state of the corporation’s principal place of business, as well as in state and federal court).
Following a status conference held on June 27, it appears that the copyright case relating to ownership rights in the comic book super hero “Ghost Rider” will be going to trial in the Southern District of New York in November. We recently reported that the Second Circuit reversed the lower court’s dismissal of this lawsuit, Gary Friedrich Enters., LLC v. Marvel Enters., Inc., finding a genuine issue of material fact existed as to what rights, if any, Friedrich retained in the character following a 1978 contract he entered with Marvel. We reported additional background on the case here.
It has long been the law that regulators may not condition the grant of a land-use permit on the owner’s relinquishment of an interest in the property unless there is both a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. In a case that may have been overlooked amidst several landmark decisions handed down in the same week, the U.S. Supreme Court ruled that these requirements also apply to monetary exactions.
The U.S. Supreme Court issued a critical decision on June 26, 2013, striking down a provision of the Defense of Marriage Act (“DOMA”) that limited the definition of marriage for federal purposes to unions of opposite-sex couples. The Court’s ruling in United States v. Windsor will have far-reaching implications for employers, at least in those states that recognize same-sex marriages, in terms of leave administration, benefits eligibility and workplace protections. In another case decided the same day, Hollingsworth v. Perry, the Court let stand a Federal District Court ruling in California that an amendment to the California Constitution limiting marriage to opposite sex couples was unconstitutional. In neither case did the Court require all states to recognize same-sex marriages.