Gibbons Law Alert

Gibbons Law Alert Blog

On August 30, 2012

In a recent “not for publication” Memorandum Opinion and Order relating to Reckitt Benckiser’s (“RB”) over-the-counter cough syrup, Delsym® (dextromethorphan polistirex), United States Magistrate Judge Douglas E. Arpert of the District of New Jersey found that RB failed to establish trade secret misappropriation, unfair competition, and tortious interference with business expectations claimed against Tris Pharma, following a four-day bench trial.

Changing the “Games”: The First Social Media Olympics

by Gibbons P.C.

Posted in Technology Developments and Issues

On August 28, 2012

As followers of this blog know, we often bring you updates regarding the ever-changing world of social media, in particular, how it affects attorney ethics or judicial proceedings, or how it is used by financial services industry participants. Here, as the closing ceremonies for this year’s London Olympics have recently ended, we pause to reflect how the popularity of social media has “changed the game,” resulting in the world’s first “Social Media Olympics.”

Norman IP v. Lexmark: Post AIA Joinder and the Rule 42 Trump Card

by Gibbons P.C.

Posted in Biotech / Patent

On August 28, 2012

In Norman IP Holdings, LLC v. Lexmark Int’l, Inc., a recent Eastern District of Texas decision, Chief District Judge Leonard Davis provided guidance on the application of Fed. R. Civ. P. 20 (“Rule 20”) joinder and Fed. R. Civ. P. 42 (“Rule 42”) consolidation in patent infringement cases post-enactment of the Leahy-Smith America Invents Act (“AIA”). Norman IP brought suit against Lexmark and others on September 15, 2011, one day before the AIA was signed into law. Norman IP later added an additional 23 defendants. The defendants filed a motion to dismiss for improper joinder or to sever, and Norman IP alternatively requested that any severed cases be consolidated under Rule 42. The Court granted defendants’ motion to sever and issued an order consolidating the cases for pretrial issues excluding venue.

Already v. Nike: Petitioner’s Brief Asserts that Jurisdiction Remains Despite Covenant Not to Sue

by Gibbons P.C.

Posted in Patent / Trademarks

On August 24, 2012

In a prior blog, we reported that the Supreme Court had granted certiorari in Already, LLC dba Yums v. Nike, Inc., No. 11-982, to an appeal from the Second Circuit’s decision affirming the Southern District of New York’s holding that a covenant not to sue entered in a trademark dispute ended the case and controversy between the parties.

Second Circuit Reverses Award of Summary Judgment in Price-Fixing Action, Based on Clarification of Matsushita and Examination of Antitrust Causation

by Kevin R. Reich

Posted in Antitrust

On August 23, 2012

On August 6, 2012, ten days after the Third Circuit issued its opinion in Superior Offshore International, Inc. v. Bristow Group, Inc. — the subject of a prior blog entry — the Second Circuit decided In re Publication Paper Antitrust Litigation, which sheds additional light on the proof required to sustain a claim for horizontal price-fixing under Section 1 of the Sherman Act. Recognizing, but not relying on, the evidentiary distinction between direct and circumstantial evidence discussed in Superior Offshore International, the Court instead assessed the totality of the evidence to determine whether it supported a reasonable inference of an illegal agreement. Importantly, the Court made clear that although an antitrust plaintiff must point to record evidence giving rise to such an inference in order to defeat summary judgment, it need not also disprove the possibility of non-conspiratorial conduct. In addition, the Court held, a plaintiff must show that the illegal agreement was both a material and a but-for cause of the alleged price increase.

FTC Proposes Rules to Codify Reporting of Exclusive Patent Right Transfers in the Pharmaceutical Industry

by Gibbons P.C.

Posted in Patent / Pharmaceuticals

On August 21, 2012

Is the sale or assignment of a patent reportable? The Hart-Scott Rodino Antitrust Improvements Act of 1976 (“HSR”) and related rules require that all acquisitions of voting securities or assets exceeding a threshold amount be reported to the Federal Trade Commission (“FTC”), as well as the Antitrust Division of the Department of Justice. The current threshold is $68.2 million.

Wrigley v. Cadbury: Judge Newman Emphasizes Commercial Success and Copying

by Gibbons P.C.

Posted in Patent

On August 17, 2012

In WM. Wrigley Jr. v. Cadbury Adams USA, a recent Court of Appeals for the Federal Circuit decision related to chewing gum patents, Wrigley brought suit against Cadbury for infringement of its U.S. Patent Number 6,627,233 (“the ‘233 patent”) claiming a chewing gum including a combination of menthol and a physiological cooling agent, WS-23. Cadbury counterclaimed against Wrigley for infringement of Cadbury’s U.S. Patent Number 5,009,893 (“the ‘893 patent”) claiming a chewing gum including menthol and a similar cooling agent entitled WS-3.

NY Court Likens Tweeting to “Screaming Out a Window” and Denies Twitter’s Motion to Quash in Harris

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On August 17, 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 on May 23, 2012 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on June 7, 2012. The Court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter, ruling that the defendant, charged with disorderly conduct after allegedly marching onto the Brooklyn Bridge during an Occupy Wall Street protest, had no reasonable expectation of privacy in communications of this type and lacked standing to seek the protections of the Stored Communications Act. Seeing its user fail in his efforts to quash the subpoena, Twitter took the matter into its own hands, moving for the same relief as defendant and ultimately obtaining the same result. The more recent decision, which addressed Twitter’s challenges, raised considerable buzz in legal and social media circles as a case of first impression because it concerned (1) a criminal rather than a civil matter and (2) a motion by a social media site rather than an individual user.

Gibbons Real Property & Environmental Team Members Contribute Chapter in Brownfields Publication

by Gibbons P.C.

Posted in Environmental and Green Issues

On August 15, 2012

David A. Brooks and Paul M. Hauge, both members of the Gibbons Real Property & Environmental Department, contributed a chapter in Implementing Institutional Controls at Brownfields and Other Contaminated Sites. Edward F. McTiernan, Deputy Counsel with the New York Department of Environmental Conservation, co-authored the chapter with Mr. Brooks and Mr. Hauge.

The Open Public Meetings Act and the Board of Governors of Rutgers

by Thomas J. Cafferty

Posted in General Litigation

On August 15, 2012

On July 25, 2012, the New Jersey Supreme Court decided McGovern v. Rutgers. The Court’s ruling — which found violations of Open Public Meetings Act, N.J.S.A. 10:4-6 et seq. (“OPMA”), but no statutory remedy — highlights the need for an amendment to OPMA providing effective remedies for violations of OPMA.