Defense Strategies

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Freedom to Operate and the Use of AIA Review

Freedom to Operate: •Identifying infringement risk •Third party patent (infringement) – claim searching –Timing •Discrete, continuous –Searching •In-house, search agency –Screening/analyzing •Ranking...more

Being Dismissive: The Realities of Having a Lawsuit Dismissed

We often hear the phrases "frivolous case" or "thrown out of court," and, as these sayings imply, we make broad assumptions about the procedural and substantive validity of a lawsuit based on our subjective (and usually...more

Bill Caravetta Prevails on Defense of Bad Faith Claim, Judge Rules on Motion for Summary Judgment

This was a workers’ compensation/bad faith lawsuit brought by Plaintiffs Kenneth Ingram and Wiley Harrison, both truck drivers for M3 Transportation. While transporting Department of Defense cargo for M3 Transport, Plaintiff...more

You Said It, Now We’re Going to Hold You to It! Hospitals Estopped From Asserting Disqualification Argument.

In theory, it is not an unfair labor practice to refuse to negotiate with a union engaged in competition with the employer—unless, of course, the employer gave the union other reasons for refusing to negotiate. The...more

Seventh Circuit Emphasizes Limits of Advice-of-Accountants Defense in Affirming Summary Judgment for FCA Defendant

In United States ex rel. Horning v. Sheet Metal Workers Int’l Assoc., 828 F.3d 587 (7th Cir. 2016), the Seventh Circuit declined to grapple with the implied false certification standard announced by the Supreme Court in...more

Fearing Trolls, Some “Friends of the Court” Turn to Laches for Solace While Others Urge Reversal in SCA Hygiene v. First Quality...

On November 1st, the Supreme Court will hear oral arguments to decide whether “Raging Bull” applies in patent litigation. At issue is whether and to what extent a laches defense may bar a claim for damages in patent...more

Sham Guaranties Are (Still) Hard To Come By

In a prior post, Sham Guaranties Are Hard To Come By, we reviewed a decision from the First District Court of Appeal that emphasized how difficult it is for guarantors to win on a “sham guaranty” defense. That defense...more

"Third View" of Bare Metal Defense in Asbestos Litigation Further Complicates Applicability

The United States District Court for the Eastern District of Louisiana recently issued an opinion in Bell v. Foster Wheeler Energy Corp., CV-15-6394, Africk, L., 2016 U.S. Dist. LEXIS 137547 (E.D. La. Oct. 4, 2016) that...more

[Webinar] Class Actions and Complex Litigation Webinar Series - Update on Systemic Discrimination Claims - November 8th, 2:00p.m....

The employment law landscape continues to be dominated by Workplace Law class actions. Jackson Lewis attorneys are defending hundreds of class and collective actions all over the country. Tapping into that experience, this...more

Defending parallel proceedings: key considerations and best practices

Parallel proceedings refer to two or more concurrent investigations or litigations arising out of a common set of facts. These proceedings can involve any combination of criminal, civil, or administrative authorities, as well...more

[Event] 2016 Long Term Care Legal Update: Insights and Best Practices for Risk Mitigation in Employment and Litigation Claims -...

Please join LeClairRyan at Charter Hall in Roanoke's Market Building for a complimentary midday presentation (lunch served) on strategies to combat today's legal concerns. Our attorneys will share insights to help you manage...more

Regulatory and Product Liability Overview for Distributors of Food Products in California

Welcome to California! California is a great place to live and work, and we are fortunate to call it home. But there is no sugarcoating the fact that California presents unique and daunting challenges to product...more

Heads I Win, Tails You Lose: TCPA Defendants Finding Success in Striking “Fail-Safe” Class Allegations

The 1964 cold war era movie, “Fail-Safe,” centered on the plight of a U.S. military jet pilot who received an errant instruction to drop a nuclear bomb on Moscow. Unlike the movie, where Henry Fonda, as the fictional...more

Don’t Let a Little Concealer Ruin Your Coverage Defenses

May an insurer in New York delay asserting (or conceal, according to Estee Lauder) a late notice defense without waiving it? According to the New York Court of Appeals a jury should decide whether the insurer manifested a...more

[Webinar] Class Actions and Complex Litigation Webinar Series - Using Data to Defend Class Actions - October 11th, 2:00pm EST

The employment law landscape continues to be dominated by Workplace Law class actions. Jackson Lewis attorneys are defending hundreds of class and collective actions all over the country. Tapping into that experience, this...more

Causation Issues in Failure-To-Report Cases – Post-Stengel Precedent

As we blogged at the time, we believe that the Ninth Circuit made a historic error in Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir., 2013) (en banc), when it equated routine product liability inadequate warning claims...more

Contractual Indemnification

Aluma Systems Concrete Construction of California v. Nibbi Bros. Inc., et al. - Court of Appeal, First Appellate District (August 16, 2016) - This case considered the applicability of a contract’s indemnification...more

CT Unfair Trade Practices Act is Only a Sword – Not a Shield in Foreclosure Actions

Appellate Case Update - The Connecticut Appellate Court has (finally) recently weighed in on the topic of whether or not a claimed defense of a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”)...more

5 Wishes for Securities Litigation Defense: Early Damages Analysis and Discovery

The fifth of my “5 Wishes for Securities Litigation Defense” (April 30, 2016 post) is to move securities class action damages expert reports and discovery ahead of fact discovery. This simple change would allow the...more

Involuntary Bankruptcy Primer Part I: Understanding the Oft Ignored Involuntary Bankruptcy Petition (with Bankruptcy Cave Embedded...

Involuntary bankruptcy is an underused but potentially powerful tool in the Bankruptcy playbook. Although the process to initiate an involuntary case is relatively straightforward (and has been largely unchanged for...more

Eleventh Circuit affirms ruling of no coverage based on insured’s failure to cooperate

As a condition to coverage under standard liability policies, the insured is required to cooperate with its insurer. The provision, termed the “cooperation clause,” typically requires the insured to assist with and...more

Bakery's Apple Pie Design is Functional and Inelgible for Trademark Protection, Third Circuit Affirms

The Third Circuit Court of Appeals affirmed a district court’s determination that the key element of a gourmet bakery’s registered pastry design was functional, and therefore ineligible for trademark protection, in Sweet...more

The Guantánamo Trials: No End in Sight - Buchalter Nemer

From May 30 to June 3, 2016, I represented the Pacific Council as an official observer at pre-trial hearings for Khalid Sheikh Mohammed (KSM) and four other alleged masterminds of the World Trade Center and Pentagon attacks...more

Pokemon Go, a Scary Trend for any E-Discovery Practitioner

One word that I never thought would have any cultural relevance ever again, Pokemon. I remember the days when Nintendo was the “it" thing to have and Pokemon was at the forefront of that fad. But that was the 1990s, so when I...more

And The Defense Wins

DRI members Jeff Curran of Gable Gotwals in Oklahoma City and Leighton Oshima of Oshima, Itomura and Fujimoto in Honolulu recently obtained a unanimous defense verdict for a national retailer in Hawaii Circuit Court. Gail...more

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