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Defense Strategies

Don’t Underestimate Just How Much Jurors Want to Reach an Independent Decision

Add this one to the list of reasons why sequestering the jury can be a problem, and more generally, to the “Juries can do strange things” category. The night before deliberations, at the end of a five-week murder trial, four...more

Ghosh is gone - now a one-stage test for dishonesty?

by Hogan Lovells on

A recent UK Supreme Court case has decided that the current test for dishonesty in criminal proceedings should no longer be used when directing juries on the law in criminal cases. The Ghosh test, which has represented...more

New Strategies for Winning Dismissal of a Failure to Warn Claim: Wu Jiang v. Ridge Tool Company

A recent decision granting summary judgment for the defendant presents a compelling model for successfully defeating a failure to warn claim. Wu Jiang v. Ridge Tool Company, et. al, decided by the Honorable Rosalynn R....more

The Practicing the Prior Art [Self] Defense Box

In 01 Communique, the Federal Circuit provided clear guidelines regarding the frequently raised “practicing the prior art” argument. Quite simply, the argument that a defendant is not liable because the claimed elements...more

Turning the Tables in Class Action Discovery: Conducting Merits Discovery Prior to Class Certification Remains a Viable Defense...

by Polsinelli on

Class actions often are lengthy and costly undertakings for defendants, and the discovery process can demand the most significant amount of resources. When discovery on class certification issues is then followed by merits...more

The Old “Practicing the Prior Art” Defense

In 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., [2017-1869] (April 26, 2018), the Federal Circuit affirmed the district court’s Order denying 01 Communique a new trial on the issue of infringement....more

Apotex fails to establish it would have obtained non-infringing perindopril from foreign third-party suppliers; original $61+...

by Smart & Biggar on

Servier and its related company ADIR were successful in another chapter of patent litigation relating to perindopril (Servier’s COVERSYL): the Federal Court again dismissed Apotex’s non-infringing alternative defence, finding...more

Audit Defense: The time to prepare for an audit is before the return is filed

by Sanford Millar on

A recent Tax Court case illustrates how a taxpayer should anticipate an audit by maintaining proper books and records. The case involved the deductibility of losses as “ordinary losses” as opposed to “passive losses” by an...more

Absolute Intervening Rights: A Silver Lining to Thwarted Post-Grant Challenges

by Jackson Walker on

When faced with allegations of patent infringement, many defendants elect to challenge the validity of certain issued patents using the various post-grant proceedings available with the United States Patent & Trademark Office...more

Combating Permanency Without A Defense Medical Expert

by Rumberger Kirk & Caldwell on

This brief, practical article presents strategies for challenging claims of permanent injury without relying on a defense expert. Originally published in the Trial Advocate Quarterly, Winter 2018 Volume 37, Number...more

It’s Not Enough to Just Drive By: Minnesota Cases Reiterate Requirements to State Viable ADA Title III Access Claims

In two rulings arising in Minnesota in March of 2018, federal courts reminded litigants that business owners have various defenses that can effectively shut down so-called “drive by” disability access lawsuits prior to...more

The Foreign Corrupt Practices Act in cross-border mergers and acquisitions

by Dentons on

The United States (US) enacted the Foreign Corrupt Practices Act of 1977 (FCPA) in response to concerns regarding pervasive bribery by US companies in foreign jurisdictions. In broad terms the FCPA has made it illegal for...more

Overcoming Bad Evidence: Lessons From Waymo V. Uber Trial

by Morrison & Foerster LLP on

One piece of “bad” evidence (or evidence that simply looks bad) can sink a client at trial. How do you neutralize the evidence before the judge and keep the jury sympathetic to your client when there is evidence that, at...more

May Ineligible Employees Claim Rights to FMLA Leave?

The Family and Medical Leave Act does not apply to all employers or even all employees within a covered company. For example, if the employee works at a location with fewer than 50 employees within a 75-mile radius, that...more

Beware of Joint Evaluation in Multi-Defendant Cases

The presence of more than one party on the defense side of the courtroom can create an interesting dynamic. In the heat of negative evaluation, it might be psychologically comfortable for some defendants to have company,...more

Conviction reversed by summary order for improper rebuttal summation

In United States v. Ballard, 17-427-cr, the Second Circuit reversed a sex trafficking conviction by summary order (JAC, RR, Villardo, J. by designation) due to improper argument by the government during rebuttal summation....more

Third Circuit Issues Precedential Ruling on Express Preemption for Hybrid Medical Devices

by Cozen O'Connor on

The Third Circuit has become the first U.S. Court of Appeals to address the application of the express preemption provision in the Medical Device Amendments of 1976 to hybrid medical devices. Hybrid medical devices are...more

Accounting of profits offers significant benefits to patent owners

by Smart & Biggar on

The Canadian “accounting of profits” remedy for patent infringement, which is not available in the U.S., provides a potentially significant opportunity for companies with Canadian IP rights. Recent court decisions have...more

Patent IPRs and Allergan’s Sovereign Immunity Defense

In an age of rising healthcare costs, pharmaceutical companies can be an easy target in calls for patent reform. Patent protection helps drug manufacturers recoup their investment in developing the new drug,. It also...more

Updated Guidance (and Ground Rules) for Controlling Stockholder Deals

by Ropes & Gray LLP on

The Delaware Supreme Court’s 2014 decision in Kahn v. M&F Worldwide Corp. (“MFW”) provided business judgment rule protection for controlling stockholder transactions that are conditioned from the outset on certain procedural...more

District Court Holds That A Debt Collector May Not Rely On Information Provided By Creditor, Rejects Bona Fide Error Defense Claim

A District Court in the Seventh Circuit has held that a debt collector may not avail itself of the § 1692k(c) bona fide error defense if it “intentionally chose to present conflicting information,” even if that conflicting...more

Sovereign Immunity in Arkansas: Absolute or Only a Bar to Monetary Recovery?

My law firm colleagues, Megan Hargraves and Devin Bates, recently authored an article titled: Sovereign Immunity in Arkansas: Absolute or Only a Bar to Monetary Recovery? ...more

Sovereign Immunity in Arkansas: Absolute or Only a Bar to Monetary Recovery?

Earlier this year, the Arkansas Supreme Court handed down a case that reduced the ability to sue the State. See Board of Trustees of the University of Arkansas v. Andrews. This decision has been controversial; it has already...more

Contractual And Fiduciary Duty Of Loyalty May Estop Patent Invalidity Defense

by Orrick - IP Landscape on

Order Denying Defendant’s Motion to Dismiss, GemShares LLC., v. Lipton et al., Case No. 1-17-cv-06221 (N.D. Ill. February 11, 2018) (Judge Matthew F. Kennelly) - Part owners of the patentee-plaintiff company lose Rule...more

Your Arbitration Is Not Yet Filed, But Attachment in Aid of That Arbitration May Be Available

The courts undoubtedly have the power to grant provisional remedies in aid of a pending arbitration – including temporary restraining orders, preliminary injunctions, and attachments. As a recent Fifth Circuit decision...more

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