Gibbons Law Alert

Gibbons Law Alert Blog

Twitter Appeals Order to Produce Tweets

Posted in E-Discovery: Legal Decisions and Court Rules

On September 11, 2012

We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on May 23 and June 7. Defendant is accused of disorderly conduct for allegedly having blocked traffic during an Occupy Wall Street protest. The District Attorney has sought defendant’s simultaneous tweets that allegedly will undermine his defense that he was forced onto the street by police officers. The trial court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter and then denied Twitter’s own motion to quash.

The Gibbons Institute of Law, Science & Technology presents “Views from the Bench”

by Gibbons P.C.

Posted in Intellectual Property

On September 11, 2012

Please join us Tuesday, October 16, as the Gibbons Institute of Law, Science & Technology welcomes the Honorable Kathleen M. O’Malley, Circuit Judge, U.S. Court of Appeals for the Federal Circuit, to present Views from the Bench at the Newark Club. The lecture will begin at 6:00 pm followed by a Networking Reception at 7:30 pm. CLE credits for NJ and NY are offered.

Good for the Gander: New NY Pilot Program Shows E-Discovery Is Also On State Courts’ Radar

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On September 10, 2012

New York state court practitioners need to be increasingly mindful about their e-discovery obligations. Although Congress and the federal courts have largely blazed the e-discovery trail to date, e-discovery issues are slowly but surely being addressed at the state level as well. Recently, New York’s Electronic Discovery Working Group selected Part 48 of the Commercial Division of the State Supreme Court in New York County (currently run by Justice Jeffrey K. Oing) to participate in a pilot program to utilize a new Electronic Discovery Order (“EDO”) form.

Akamai and McKesson: Inducement Liability for Infringement by Multiple Actors

by Thomas J. Bean

Posted in Patent

On September 10, 2012

In August, we reported that a decision in the en banc Federal Circuit rehearings of Akamai Technologies, Inc. v. Limelight Networks, Inc., 629 F.3d 1311 (Fed. Cir. 2010) and McKesson Techs. Inc. v. Epic Sys. Corp. , 98 U.S.P.Q.2d 1281 (Fed. Cir. 2011) appeared to be imminent. As predicted, on August 31, 2012, the Federal Circuit issued an en banc, per curiam opinion deciding both cases.

We Produced Privileged Documents; Now What?

by Gibbons P.C.

Posted in Licensing

On September 7, 2012

The production of a party’s privileged documents is every lawyer’s–and client’s–worst nightmare because it provides additional facts (and avenues for discovery) as well as legal analysis of those facts that may not have existed. In layman’s terms, it is a game changer. A recent decision plays out this very scenario and shows that despite the production of privileged documents, they can be salvaged if the producing party acted properly before and after the disclosure.

Second Circuit Holds That a Post-Disclosure Stock Price Rebound Does Not Per Se Preclude Damages for Alleged Federal Securities Fraud

by Gibbons P.C.

Posted in Appellate / Securities

On September 6, 2012

Recently, the Second Circuit vacated a District Court’s dismissal of a securities fraud action brought by Acticon AG, shareholder of China North East Petroleum Holdings Ltd. (“NEP”), for failure to plead economic loss—a necessary element to maintain a private damages action under § 10(b) of the Securities Exchange Act of 1934 (“§10(b)”). Acticon had multiple opportunities to, but did not, sell its NEP shares at a profit after NEP’s disclosure of the alleged fraud. The Court held that economic loss is not conclusively negated at the pleadings stage where the price of a security recovers shortly after a disclosure of alleged fraud. Significantly, in drawing all reasonable inferences in favor of the plaintiff under NEP’s 12(b)(6) motion, the Court explained that a rise in the price of a stock following a corrective disclosure requires an inquiry into whether the security rose for “reasons unrelated to [the] initial drop,” and thus introduces factual questions and competing theories of causation that would be inappropriate to resolve on a motion to dismiss.

Yums v. Nike Update — Two Amicus Curiae Briefs Filed: One Arguing Vacatur and Remand and the Second in Support of Yums

by Gibbons P.C.

Posted in Trademarks

On September 6, 2012

Last week, in a prior blog, we reported that Petitioner Already, LLC d/b/a Yums (“Yums”) filed its opening brief with the Supreme Court, arguing that a trademark registrant’s post-suit covenant not to sue does not divest a Federal District Court of standing to review a challenge to the validity of the underlying trademark registration.

Color Trademarks Remain in Fashion: Second Circuit Sides with Louboutin

by Gibbons P.C.

Posted in Trademarks

On September 5, 2012

Earlier today, the United States Court of Appeals for the Second Circuit issued its long-awaited decision in Christian Louboutin S.A. v. Yves Saint Laurent America Holding, Inc.. The Appellate Court decision reversed the lower court’s finding that a single color can never serve as a trademark for fashion. It also found that Louboutin’s red, lacquered shoe outsole had acquired distinctiveness and is protectable as a trademark. However, the Court went on to state that the trademark is “limited to uses where the red outsole contrasts with the color of the remainder of the shoe.” The case has now been remanded to the District Court for further proceedings.

Freelancer Survives “Live to Ride” Logo Dispute with Harley-Davidson — For Now

by Gibbons P.C.

Posted in Copyright

On September 5, 2012

A pending action in the Eastern District of Wisconsin serves as a reminder of the need for clarity and specificity in any IP-related deal, and in this case, in a matter involving copyright. Wayne W. Peterson is a freelance commercial artist who produced various commissioned works for the Harley-Davidson motorcycle company from the mid-1970s through the mid-2000s. Two of Peterson’s works, the “Live to Ride” logo, created in 1985 and the “Harley-Davidson University” logo, created in 1991, are the subject of Peterson’s Complaint.

Will the Supreme Court Weigh in on Reverse Payments in ANDA Cases?

by Gibbons P.C.

Posted in Patent

On September 4, 2012

We previously reported on developments in various United States Courts of Appeal decisions concerning reverse payments in Hatch-Waxman litigation settlements – that is, payments made by branded pharmaceutical patent holders to generic challengers to postpone market entry of the generic product. Most recently, as we reported here, the Third Circuit in In re K-Dur Antitrust Litig. bucked prior holdings of the Eleventh, Second, and Federal Circuits, ruling that a reverse payment is prima facie evidence of an antitrust violation and, therefore, serves as evidence of unreasonable restraints of trade. In light of the Third Circuit’s divergent decision from other circuit precedent, many predicted a subsequent Petition for Certiorari.