Federal Rule 12(b)(6)

News & Analysis as of

False Claims that Don’t Violate the False Claims Act

A recent Fourth Circuit decision answers this riddle, “How can a contractor knowingly submit a false claim to the government without violating the False Claims Act (FCA)?” Give up? The answer is blindingly obvious—once...more

SDNY Refuses to Dismiss Executive’s Dodd-Frank Retaliation Claim

On August 24, 2016, the Southern District of New York denied Defendants’ motion to dismiss a Dodd-Frank whistleblower retaliation claim brought by its former co-CEO and Executive Chairman of its Board of Directors, finding...more

Texas Courts' Consistent Inconsistency on Improper Joinders

Throughout the onslaught of the Texas hail litigation epidemic, policyholder lawyers and firms representing insurance carriers continue to battle over whether these cases belong in Texas state court or are more properly...more

Leaving a Tart Taste in One Processor’s Mouth: Court Dismisses Claims of a Plaintiff Subject to the Tart Cherry Order

Agricultural law can often be complicated, but it is not always this "tart." Burnette Foods, a tart cherry processor in Michigan, has found itself in an ironic position: it is subject to a law that was enacted with...more

No Way Out for Door Patent

On September 12, 2016, District Judge John G. Koeltl (S.D.N.Y.) granted the defendants’ motions to dismiss for failure to state claim of patent infringement under Federal Rule of Civil Procedure (“FRCP”) 12(b)(6). Claims...more

Court Of Chancery Again Explains Scope Of The Corwin Doctrine

This is one of two recent Court of Chancery decisions explaining that the Corwin case really does mean that there is an “irrebuttable business judgment rule” that bars challenges to a merger approved by a majority of the...more

Third Circuit Dismissal Affirmance Based on Economic Loss Doctrine Shows Spokeo Shouldn’t Be Your Only Data Breach Class Action...

While the United States Supreme Court’s ruling in Spokeo v. Robins, 136 S. Ct. 1540 (2016), has garnered much attention after being cited by numerous courts as a means to dismiss data privacy class actions, defendants should...more

Whistleblower’s Claim Survives Dismissal and Death

The Energizer Bunny has nothing on the whistleblower claim of Robert Cunningham. Here’s what’s happened since Robert files his qui tam action against Millennium Labs back in 2009: the government declined to intervene; seven...more

Helsinn Healthcare S.A. v. Hospira, Inc.

Case Name: Helsinn Healthcare S.A. v. Hospira, Inc., Civil No. 15-2077 (MLC), 2016 U.S. Dist. LEXIS 45826 (D.N.J. Apr. 5, 2016) (Cooper, J.) - Drug Product and Patents-in-Suit: Aloxi® (palonosetron); U.S. Patents Nos....more

Ferring B.V. v. Actavis, Inc.

Case Name: Ferring B.V. v. Actavis, Inc., Civil No. 15-4222 (SRC)(CLW), 2016 U.S. Dist. LEXIS 69328 (D.N.J. May 26, 2016) (Chesler, J.) - Drug Product and Patents-in-Suit: Lysteda® (tranexamic acid); U.S. Patent No....more

ANDA Update - Volume 2, Number 2

180-Day Notice Period for Biosimilar Approval Is Always Mandatory and Enforceable by Injunction - Amgen Inc., v. Apotex Inc., (Fed. Cir. July 5, 2016) - A year after analyzing the patent dance and notice...more

Middle District of Louisiana Gets it Wrong: A Different Product is not an “Alternative Design”

Over the Fourth of July weekend, we in the Philadelphia area learned that 120 of the “new, state-of-the-art” trains in our regional commuter rail system were being pulled out of service. Someone noticed that the trains were...more

First Circuit Affirms Dismissal For CVS Caremark Under Public Disclosure Bar

The FCA’s public disclosure bar precludes liability when a relator’s allegations have been publicly disclosed in a list of statutorily enumerated sources. Last week, the First Circuit added to the growing jurisprudence both...more

Open Parking, LLC v. Parkme, Inc. (W.D. Penn. 2016)

Every day, millions of people are subjected to a frustrating experience -- finding a place to park their automobiles. Whether at the train station, the sports stadium, a festival, or a popular restaurant, circulating through...more

Coffelt v. NVIDIA Corp. (C.D. Cal. 2016) - Mathematical Algorithm Found to be Unpatentable

On June 21, 2016, the U.S. District Court for the Central District of California issued an order granting a motion to dismiss pursuant to Rule 12(b)(6) for lack of patentable subject matter under 35 U.S.C. § 101. Defendants...more

Pre-Claim Construction 101 Motions: Tips For Both Sides

Since the U.S. Supreme Court issued its decision in Alice Corp. Pty. v. CLS Bank Int’l on June 19, 2014, there have been a surge of motions filed and granted that have invalidated patent claims for claiming patent-ineligible...more

S.D.N.Y. Dismisses SOX and Dodd-Frank Whistleblower Claims For Lack Of Protected Activity

On June 22, 2016, Judge Daniels of the Southern District of New York dismissed SOX and Dodd-Frank whistleblower claims, ruling that Plaintiff’s alleged internal complaints did not constitute protected activity, as they did...more

District Court Denies Request to Stay Discovery Pending Motion to Dismiss Based on Patent-Ineligible Subject Matter

J. Crew filed a motion to dismiss the plaintiffs' claims for patent infringement pursuant to Federal Rule of Civil Procedure 12(b)(6), asserting that the patents-in-suit are drawn to patent-ineligible subject matter and...more

District Court Applies Mayo To Treatment Claims But Denies Motion To Dismiss BMS Keytruda Litigation

The U.S. District Court for the District of Delaware accepted Merck’s arguments that method of treatment patents asserted by BMS against its Keytruda product “touch[] upon a natural phenomenon” such that they should be...more

Structuring a Settlement After Asserting Class Members Did Not Suffer Any Concrete Injury

Frequently, a class action complaint will set forth an elaborate theory of why the defendant’s actions were negligent or wrongful, but fall short when trying to identify how that conduct has harmed the class members. This...more

A New Normal? Challenges to Market Definition Find a Foothold at 12(b)(6) Stage

Recent federal court opinions dismissing cases under Rule 12(b)(6) may provide an early off-ramp for antitrust defendants where a roadblock has often existed. Courts are increasingly dismissing cases at the 12(b)(6) stage for...more

Methods Exploiting Junk DNA May Be Useful But Lack Patent Eligibility

Striking another blow against patent eligibility in the field of biotechnology, the Federal Circuit agreed with the district court that methods that use “junk DNA” to detect genetic variations lack patent eligibility under 35...more

Discoveries Are Not Patentable.

In Genetic Technologies Limited v. Merial LLC. [2015-1202, -1203] (April 8, 2016) the Federal Circuit affirmed the district court dismissal for failure to state a claim and entry of final judgment that claims 1–25 and 33–36...more

Report And Recommendation Regarding Motion To Dismiss Is Denied In Part And Granted In Part

Fallon, M. J. Report and recommendation recommending that defendants’ motion to dismiss for lack of personal jurisdiction and failure to state a claim be denied in part and granted in part. The disputed technology in...more

Here We Go Round the Merry-Go-Round: How a § 101 Denial May Inform a Subsequent Motion

With the explosion of 35 U.S.C. § 101 challenges since Alice v. CLS Bank,1 litigants and courts are well familiar with its applicable two-part inquiry. Overlaying and shaping the Alice inquiry, however, are the parties’...more

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