Joshua Rogaczewski

Joshua Rogaczewski

McDermott Will & Emery

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Latest Publications


Modification of Protective Orders to Permit Use of Discovery Material in Foreign Litigation Must Consider 28 U.S.C. § 1782 Factors...

The U.S. Court of Appeals for the Federal Circuit vacated an order modifying a protective order to allow the use of confidential discovery material in foreign litigation, explaining that courts facing such questions must...more

9/11/2015 - Confidential Information Discovery Foreign Jurisdictions Japan Misappropriation Patent Infringement Patent Litigation Patents Protective Orders Remand Rule 26 South Korea Trade Secrets Vacated Writ of Mandamus

Rule 11 Sanctions Are Rare and Reserved for the Most Egregious of Violations - Predator Int’l, Inc. v. Gamo Outdoor USA, Inc.

The U.S. Court of Appeals for the Tenth Circuit reversed an order sanctioning an attorney under Federal Rule of Civil Procedure 11, holding that the district court abused its discretion in finding the attorney’s tactical...more

9/2/2015 - Federal Rules of Civil Procedure Patent Infringement Patent Litigation Patent Ownership Patents Rule 11 Sanctions Standing

Poor Litigation Conduct by Prevailing Party Not Enough to Obviate Exceptional-Case Doctrine - Gaymar Indus., Inc. v. Cincinnati...

Addressing the degree to which litigation conduct can preclude the recovery of fees under 35 U.S. C. § 285, the U.S. Court of Appeals for the Federal Circuit vacated the denial of a fee award, finding that sloppy litigation...more

8/5/2015 - Appeals Attorney's Fees Exceptional Case Fee-Shifting Inter Partes Reexamination Objectively Unreasonable Standard Octane Fitness v. ICON Patent Infringement Patent Invalidity Patent Litigation Patents Remand SCOTUS Unclean Hands USPTO Vacated

Data Breach Insurance: Does Your Policy Have You Covered?

Recent developments in two closely watched cases suggest that companies that experience data breaches may not be able to get insurance coverage under standard commercial general liability (CGL) policies. CGLs typically...more

5/26/2015 - Commercial General Liability Policies CT Supreme Court Cyber Insurance Data Breach IBM Personally Identifiable Information

Supreme Court Rejects Sixth Circuit’s Yard-Man Inferences in M&G Polymers USA, LLC v. Tackett

In M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 935 (2015), the Supreme Court of the United States addressed the interpretation of collective bargaining agreements (CBAs) that include post-retirement welfare benefits, such as...more

2/19/2015 - CBAs Employer Group Health Plans Employer Healthcare Costs Health Insurance M&G Polymers v Tackett Retirement SCOTUS Vested Benefits Yard Man

Arbitrator Should Decide Whether Dispute Falls Within the Scope of the Arbitration Clause

U.S. Nutraceuticals, LLC v. Cyanotech Corp. - Addressing who should decide whether a dispute falls within the scope of an arbitration clause, the U.S. Court of Appeals for the 11th Circuit reversed a district court’s...more

12/17/2014 - Arbitration Arbitrators Mandatory Arbitration Clauses Remand

When Seeking Cyber Coverage, Preparation is Key

In 2014, major data breaches were reported at retailers, restaurants, online marketplaces, software companies, financial institutions and a government agency, among others. According to the nonprofit Privacy Rights...more

12/1/2014 - Cyber Insurance Cybersecurity Data Breach

Not All Vice Presidents Are Officers and Entitled to Corporate Indemnification

Aleynikov v. Goldman Sachs Grp., Inc. - Addressing the meaning of the term “officer” in a company’s bylaws, the U.S. Court of Appeals for the Third Circuit vacated a district court’s summary judgment that a computer...more

11/24/2014 - Appeals Bylaws Corporate Officers Criminal Prosecution Goldman Sachs Indemnification

Focus on Tax Controversy - Fall 2014

Supreme Court to Hear Tax Injunction Act Case - On August 20, 2013, in Direct Marketing Association v. Brohl, the U.S. Court of Appeals for the Tenth Circuit held that the federal Tax Injunction Act (TIA) prohibited...more

10/2/2014 - Certiorari Direct Marketing Association Discovery Electronically Stored Information Meal and Entertainment Expenditures Predictive Coding SCOTUS Sports Tax Court Tax Injunction Act

Tax Court Approves Use of Predictive Coding During ESI Discovery

On September 17, 2014, the U.S. Tax Court issued its first opinion regarding the discovery of electronically stored information (ESI). In Dynamo Holdings, Ltd. vs. Commissioner, 143 T.C. No. 9 (Sept. 17, 2014), the Tax Court...more

9/27/2014 - Advisory Opinions Discovery Electronically Stored Information Predictive Coding Tax Court

The New York Court of Appeals Considers the Consequences of a Liability Insurer’s Breach of the Duty to Defend

What are the consequences of a liability insurer’s breach of the duty to defend its insured against a potentially covered claim? Recent decisions from the New York Court of Appeals highlight differing views nationwide on...more

4/3/2014 - Breach of Duty Commercial General Liability Policies Duty to Defend Insureds Insurers

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