A trio of recent cases challenging disparate food and beverage labels offers a few common substantive and procedural lessons for companies. First, the back panels – when considered in light of U.S. Food and Drug...more
Picture this: you’re in court involving a personal injury crash and you want to reference as evidence the fact that Orange Avenue is a roadway that runs North-South. Do you need to ask the court for a recess, go find an...more
The Florida Legislature has voted in support of CS/HB 677, which will create a new subsection of the Florida Evidence Code on the subject of judicial notice. Specifically, when it goes into effect on July 1, 2022, Section...more
In In re Estate of Clark, a trial court entered an order allowing a family allowance for the decedent’s wife. No. 02-20-00211-CV, 2021 Tex. App. LEXIS 5685 (Tex. App.—Fort Worth July 15, 2021, no pet. history)....more
Judicial notice is one of the less glamorous parts of motion practice. A request for judicial notice is typically a lower-priority background document, drafted towards the end of the brief-writing process, along with a notice...more
Federal Reserve Hints at Government-Backed Cryptocurrency; Third Circuit Affirms Dismissal of Securities Fraud Class Action Against Shutterfly Inc. Regarding Allegedly Misleading Financial Projections; Ninth Circuit Holds...more
There used to be a family judge, who, with his law clerk, spent a lot of time on Google, looking up property records, Zillow “values” and other information regarding the parties and their property. While most of the time it...more
This quarter’s issue includes summaries and associated court opinions of selected cases principally decided between February and June 2020....more
The US Court of Appeals for the Federal Circuit reversed a dismissal of a complaint for failing to state a claim under FRCP 12(b)(6), finding error in the district court’s use of judicial notice to do fact-finding outside the...more
Federal Circuit Summary - Before Prost, Wallach, and Hughes. Appeal from the U.S. District Court for N.D. Ohio. Summary: On a Rule 12(b)(6) motion, a district court cannot judicially notice facts that are subject to...more
In the Ninth Circuit, defendants typically have two tools available to ask a court to consider in connection with a motion to dismiss information outside the four corners of a complaint. First, a defendant may file a request...more
Bass, Berry & Sims attorney Chris Lazarini analyzed the court's enforcement of an exculpatory clause in the context of a Trading Advisory Agreement. Where parties elect to include exculpatory clauses in their contracts, such...more
PTAB trials are nearly always (~ 4 out of 5) driven by some concurrent litigation need, either a district court complaint of infringement filed against the petitioner or an International Trade Commission (ITC) investigation...more
Judge McNamara determined to reopen the record after the hearing and take judicial notice of two PTAB decisions denying institution of IPR challenges of the asserted patents in Certain Composite Aerogel Insulation Materials...more
In November 2007, an article titled “Off the Record,” which was co-authored by one of this article’s authors, was published in this Journal. It began by saying “[e]very good appellate lawyer knows that an appeal is...more
Addressing the likelihood of confusion for competing marks used in connection with financial services, the US Court of Appeals for the First Circuit largely reversed the district court’s finding that the defendant’s use of...more
Trademark attorneys often must determine when a third-party used a mark in commerce and the extent and nature of such use, particularly when considering whether to take legal action against a third party for the unauthorized...more
In United States and State of California ex rel. Fryberger et al. v. Kiewit Pacific Company, et al., No. 12-CV-02698, 2013 WL 5770514 (October 24, 2013), a California federal court in the Northern District of California ...more
A recent California decision should make it easier for insurers to attack allegations at the pleading stage in state court actions. ...more