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Last update: Mar 19, 2007
Pepper Hamilton: Circuit Court Update Highlighting cases decided from Ja... Feb 09, 2006
The bankruptcy court granted relief from the automatic stay pending final judgment in the state court action and permitted the parties to appeal that judgment. Defendant objected to plaintiff s claim, arguing that the claim should not be allowed because defendant intended to appeal the state court judgment
Pepper Hamilton: Circuit Court Update Highlighting cases decided from Ja... Jan 30, 2006
He commenced suit on May 16, 2002, two years after the first three injuries but within two years of the final injury. Under 28 U.S.C. º 1291, a circuit court only has jurisdiction over final judgments
Musick Peeler & Garrett: AN EXCESS INSURER?S DUTY TO DEFEND: IN SUSPENDED ANIMAT... Nov 01, 2005
The ruling was based, at least in part, on its apparent holding that the insured has the option not to sue, and thus its causes of action do not accrue, until four years after the underlying action against the insured is terminated by a final judgment The Court reached its decision in favor of the policyholder despite facts demonstrating that the policyholder had already filed an earlier lawsuit in 1996 against primary insurers and “Doe” excess insurers for breach of the duty to defend and
Kilpatrick Stockton: State Court Remands Sep 05, 2005
However, such a denial is not an immediately appealable final order. If the court of appeals, on review of the final judgment, concludes that the district court erred in declining to remand, it will vacate the judgment and direct that the case be remanded to state court
Sills Cummis: 2005g July Bulletin.pdf Jul 01, 2005
Affirming various evidentiary rulings and a final judgment in favor of an infringement defendant, the court found no abuse of discretion in the district court's exclusion of testimony by the patent in suit's co-inventor as to the accused device. The Court stated although the co-inventor may have particularized knowledge and experience of the claimed invention, it does not necessarily mean he also has particularized knowledge and experience in the structure and workings of the accused device
Kilpatrick Stockton: Class Action Appeals May 02, 2005
Mark I. Levy 05-02-2005 A recurring task for litigators is to seek to obtain appellate review of an issue prior to final judgment in a case. Where the district court's decision is "manifestly erroneous," these courts reason, the efficiency and fairness purposes of Rule 23(f) are properly served by correcting the error before rather than after final judgment
Pitney Hardin: Insider Trading: SEC v. Donna Yun & Jerry Burch Apr 09, 2005
...- Alerts Press Releases Online Press Kit Alerts In the News Seminars Events Insider Trading: SEC v. Donna Yun Burch On September 9, 2004, the Securities and Exchange Commission announced that the United States District Court for the Middle District of Florida entered a final judgment in an insider trading case against two Orlando real estate agents, Donna Yun and Jerry Burch. In the complaint, which was filed way back in February 1999, the SEC alleged that:On or before Tuesday, February 18,
Littler Mendelson: New Eleventh Circuit Ruling in Palmer & Cay Promote... Apr 01, 2005
Employees may soon ask other states with anti-noncompete policies to extend their declaratory judgment protections in the same way. To take advantage of Georgia s anti-NCA precedent, Mr. Meathe and his new employer, Palmer & Cay, filed a declaratory judgment action in the federal district court in Savannah, Georgia, seeking an order that both the 1997 stock sale NCA and his 2002 employment-related NCA are unenforceable
Greenberg Traurig: New Federal Legislation: The Class Action Fairness Act ... Mar 01, 2005
Finally, if the class attorney’s compensation is not based on a contingency arrangement, the class attorney’s fees must be based on the time actually spent working on the case, and cannot be an arbitrary fee determined ad hoc by the attorney. The court may not issue a final settlement order until 90 days after the appropriate federal and/or state authorities are served
Jones Walker: 5th Cir. Affirms Seaman's Family Can't Get Non-... Dec 01, 2004
Crown then filed for summary judgment arguing that Malbrough could not win her design case under the LPLA without expert testimony. The district judge denied the summary judgment motion holding that expert testimony was not necessary to determine whether a door should have been incorporated into the forklift
Akerman Senterfitt: 11/29/04 - Insurance-Related Appellate Update Nov 29, 2004
Florida District Courts of Appeal Insurance -- Personal injury protection -- Offer of judgment An insurer may recover attorney's fees pursuant to an offer of judgment or proposal for settlement in an action filed by its insured to recover PIP benefits. To determine if an offer of judgment is made in good faith the question to be considered is whether the offer or proposal bears a reasonable relationship to the amount of damages suffered and was a realistic assessment of liability
Preston Gates & Ellis: Amendments to Federal Rule 23: Should Washington Follow... Sep 10, 2004
The comments explicitly recognize that another reason for deferring the certification decision may be to allow the defendant an opportunity to "win dismissal or summary judgment as to the individual plaintiffs without certification and without binding the class that might have been certified." This is consistent with current Ninth Circuit practice. The text in FRCP 23(c)(1) that read: "An order under this subdivision may be conditional, and may be altered or amended before the decision on the
Akerman Senterfitt: 08/23/04 - Insurance-Related Appellate Update Aug 23, 2004
INSURANCE-RELATED APPELLATE UPDATE August 23, 2004 Continued by insurer after execution of release and was not based on the accident itself, but rather on the filing of the Georgia lawsuit in insured's name personally without notifying her and the reduction of the lawsuit to a judgment in an amount that insurer allegedly knew did not represent insured's total damages -- Paragraph of release authorizing insurer to file action against tortfeasor without mentioning notice to insured did not support
Parker Poe: (View PDF) Jun 04, 2004
Another change to Rule 23 that could benefit defendants allows a class action order to be "altered or amended before final judgment." Previously it could only be altered or amended until "the decision on the merits." In other words, the certification order is now subject to revision even after a determination of liability and until final judgment. The notes that accompany the new Rule 23 also instruct the court to "assess [ ] the value conferred on class members." Finally, the notes indicate
Goodwin Procter: New Copyright Legislation In The Works Jun 01, 2004
Finally, a third bill would aim to close a perceived "loophole" regarding peer-to-peer ("P2P") file sharing and introduce severe penalties for those who share files on a P2P basis. In lieu of collecting actual damages, the injured party would be permitted to elect, at any time before final judgment is rendered, to recover an award of statutory damages in a sum of not less than $2,500 or more than $25,000, as the court considers appropriate
McDermott: Rapid Changes to U.S. Excise Taxes on Long-Distance Tel... Mar 04, 2004
The U.S. Department of Justice, which represents the IRS in all of the pending suits, has recently informed MWE that it is not compromising any of the cases; it will litigate these cases to a final judgment. Similarly, MWE was informed that the IRS s examination function, which initially reviews all administrative claims, is no longer forwarding these claims to the IRS s Office of Appeals for settlement
Lowenstein Sandler: "Clarifying the Scope of Public Interest in Privat... Feb 01, 2004
In an unpublished Final Judgment dated Nov. 3, 2003, the Cape May Chancery Court ordered that the public trust doctrine applied to Atlantis' property. Atlantis was ordered to provide "Horizontal Access" and "Vertical Access" across its property so that the public may reach the property located below the mean high water line
Greenberg Traurig: U.S. Supreme Court Insulates ILECs from Antitrust Liabi... Jan 01, 2004
Finally, outside of the telecommunications sector, the impact could be substantial in other regulated industries, particularly where there is a regulatory scheme which either addresses competition or provides alternative means of addressing competition issues, such as those found in the federal antitrust laws. 2004 Greenberg Traurig Additional Information: For more information, please review our Antitrust Practice description, or feel free to contact one of our attorneys
Fried Frank: Cost Allowability Update - GAO Releases Report on DOE R... Dec 31, 2003
1 million for judgments and settlements. The GAO's report noted that, pursuant to regulation, litigation costs arising under a DOE Management and Operating contract are unallowable if the contractor's actions involved willful misconduct, lack of good faith, or failure to exercise prudent business judgment by the contractor's management personnel
Seyfarth Shaw: The Impact of CSX Corp v. U.S.: Saving FICA on Severanc... Dec 04, 2003
While CSX is not a final decision, an overview of the relevant authority and consideration of possible approaches for severance pay is warranted. In November 2003, the CSX court was still hearing motions for cross summary judgment, and has not yet entered a final judgment
O'Melveny & Myers: Amended Federal Class Action Rules Take Effect Today Dec 01, 2003
Class certification orders may nevertheless be amended at any time before final judgment. Rule 23(c)(2)(A) and (B): Class Notice
Preston Gates & Ellis: Changes to the Federal Rules of Civil Procedure Take Ef... Dec 01, 2003
Willging, Hooper & Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 26-36 (Federal Judicial Center 1996), at p. 27. The new Rule also permits amendments or alterations to the class certification later—at final judgment—rather than setting the decision on the merits as the cut-off
Cohen & Wolf: Maximizing and Securing your Judgment by Effective Use ... Nov 01, 2003
Musick Peeler & Garrett: INSURER NOT LIABLE FOR REFUSING TO SETTLE LAWSUIT AGAIN... Oct 08, 2003
Case No. BC258637) holding that an insurer is not liable for a stipulated judgment after allegedly unreasonably refusing to settle the underlying claim. The trial court sustained the demurrer without leave to amend concluding that, because there was no final judgment in the personal injury action and Shamrock had not suffered any damages as a result of Redland’s refusal to settle, no cause of action against Redland for unreasonable failure to settle had accrued
Gray Cary: Antitrust Implications of Infrastructure Sharing Oct 01, 2003
Finally, the sharing of competitively sensitive information presents an opportunity for explicit and/or tacit collusion among members. Inc., Proposed Final Judgment and Competitive Impact Statement, 59 Fed
Pillsbury Winthrop: Gun-jumping: Antitrust Issues Before Closing the Merger Aug 08, 2003
Hale and Dorr: Federal Circuit Patent Update Aug 01, 2003
A grant of a motion in limine with respect to damages evidence cannot be a final judgment under Fed. McNeil-PPC, Inc. v. L. Perrigo Company, et al. (8/1/03, No. 02-1516) (Michel, Archer, Lourie)(Lourie) Affirming judgment of invalidity for obviousness but reversing finding of exceptional case and award of attorneys' fees
Baker Botts: Infringement Notice Letters Alone May Not Subject Paten... Jun 01, 2003
Baker Botts LLP | News s | In Print | Infringement Notice Letters Alone May Not Subject Patentee to Personal Jurisdiction of a Foreign Forum in a Declaratory Judgment Action On the Podium Deals its Events In Print Media Center Supreme Court Reports IP Reports Texas Technology Calendars Search In Print By Topic INFRINGEMENT NOTICE LETTERS ALONE MAY NOT SUBJECT PATENTEE TO PERSONAL JURISDICTION OF A FOREIGN FORUM IN A DECLARATORY JUDGMENT ACTIONJune 1, 2003by Chad Terrell In April of this year,
Gibbons: Alternative Dispute Resolution Processes and the Bankru... Apr 11, 2003
10] The Bankruptcy Court may not enter final judgment on non-core matters without the full consent of all parties to the proceeding, but can only issue proposed findings of fact and legal conclusions for confirmation by the United States District Court. Moreover, if a party appeals a non-core ruling, the District Court reviews both the Bankruptcy Court's findings of fact and law under the de novo standard
Fried Frank: Sarbanes-Oxley Act of 2002 - D&O Insurance/Liability Mar 11, 2003
The exclusion should only apply if fraud is found by the court in a final judgment. Final judicial determination of personal benefit, fraud and intentional conduct should be required for these exclusions to apply
Weil: Director Liability Warnings From Delaware (January 2003... Jan 01, 2003
These new expectations suggest heightened judicial scrutiny of director con-duct and may lead to new limitations on the protection provided to direc-tors by the business judgment rule. Finally, we note that from June 2002 through today, the Delaware Supreme Court has issued written decisions in five cases involving the performance by directors of their fiduciary duties
Weil: Director Liability Warnings From Delaware (January 2003... Jan 01, 2003
These new expectations suggest heightened judicial scrutiny of director con-duct and may lead to new limitations on the protection provided to direc-tors by the business judgment rule. Finally, we note that from June 2002 through today, the Delaware Supreme Court has issued written decisions in five cases involving the performance by directors of their fiduciary duties
Morrison: News Flash: Texas Court of Appeals Renders Split Decisi... Dec 19, 2002
Beveridge & Diamond: The Environmental Marketplace - Update 7 Dec 02, 2002
That rule, expected to be finalized soon, would require advance notice to EPA prior to undertaking new uses of a variety of PFOS-related substances. Labeling tising A California court has held, for the first time, that a company may obtain a declaratory judgment in court confirming that it is exempt from the Proposition 65 warning requirement for products containing chemicals listed under Prop 65 as carcinogens or reproductive toxins
Plunkett & Cooney: When is a Final Order Really ?Final?? Dec 01, 2002
When is a Final Order Really ‘Final. By Christine D. Oldani December 2002 Even experienced appellate practitioners are confounded by Michigan’s court rule defining “final judgment” or “final order.” That is MCR 7
Morrison & Foerster: Preliminary Analysis of Microsoft Decisions Nov 05, 2002
With respect to the retention of jurisdiction, the court noted "that the public interest would be served if Microsoft and the United States (and the Settling States) would agree to amend the proposed final judgment to reserve for the Court, in addition to the powers presently specified in the proposed final judgment, the power to sua sponte issue orders or directions regarding the final judgment, including, but not limited to orders regarding the construction or carrying out of the final
Morrison & Foerster: Preliminary Analysis of Microsoft Decisions Nov 05, 2002
With respect to the retention of jurisdiction, the court noted "that the public interest would be served if Microsoft and the United States (and the Settling States) would agree to amend the proposed final judgment to reserve for the Court, in addition to the powers presently specified in the proposed final judgment, the power to sua sponte issue orders or directions regarding the final judgment, including, but not limited to orders regarding the construction or carrying out of the final
O'Melveny & Myers: Texas Supreme Court Reverses Nationwide Class Action; C... Nov 04, 2002
The Supreme Court's ruling began with a discussion of whether it had jurisdiction to consider the appeal--a stringent procedural hurdle that has left the Texas intermediate appellate courts as the de facto final arbiter of many class certification orders. First, the lower courts' failure to explain in detail how the proposed class claims would be tried to final judgment directly conflicted with the Bernal requirement that class certification orders "indicate how the claims will likely be tried
Fried Frank: Third Circuit Affirms Dismissal of Class Action Suit by... Oct 18, 2002
Final Judgment Could Top a Half Billion Dollars Based on Bundled Pricing Program Page 4. Finally, the conclusion is also supported by the fact that several new cruise ships being built for the major cruise lines are scheduled to come on-line in the next few years
Drinker Biddle & Reath: Mergers and Acquisitions: Antitrust Limitations Sep 26, 2002
No. 01-00734 (D.D.C. Nov. 9, 2001) (final order and stipulated permanent injuction). See Computer Associates Int'l, Inc., Proposed Final Judgment and Competitive Impact Statement, 67 Fed
O'Melveny & Myers: Federal Judicial Conference Approves Proposed Amendment... Sep 25, 2002
The Committee Note concerning this amendment also speaks favorably to the practice of limiting pre-certification discovery to those matters relevant to the propriety of class treatment, and deciding motions to dismiss or summary judgment motions aimed at the individual named plaintiffs before deciding class certification. Rule 23(c)(1)(c) will provide that a class certification order may be altered or amended at any time up to final judgment (instead of the current before the decision on the
Coudert Brothers: A lifeline for golden shares? Sep 20, 2002
Golden share mechanisms can take a variety of forms, and the three ECJ judgments deal with national schemes that differ in several respects. attached to their golden shares will defend these arrangements in litigation before national and European courts until a `final' judgment settles the matter
Shearman & Sterling: Better Public Sector Opportunities after Bettercare * Sep 01, 2002
In the context of these reforms, the Bettercare judgment3 recently handed down by the Competition Commission Appeals Tribunal ("CCAT") has opened up a new avenue for scrutinising the purchasing practices of the NHS to ensure that suppliers get fair access and a fair deal. This judgment may also have implications for both European Community law and the approach in other EU member states where domestic rules are based on EC rules
Goodwin Procter: Financial Services Alert Aug 13, 2002
Finally, in a fourth letter, P-2002-5, the OTS ruled that federal law preempted an Oklahoma law that sought to require federal savings banks to provide notice before establishing or operating ATMs in the state and sought to preclude institutions (and their subsidiaries) with no presence in the state from such establishment and operation. That provision requires indemnification of a director if there is a final judgment on the merits in his or her favor, and permits (but does not require)
McKenna Long & Aldridge: Insurance Advisor Aug 01, 2002
4 Finally, in situations where only one policyholder knowingly made material misrepresentations on a policy application, other "innocent" policyholders who did not participate in the false representations may still be able to obtain coverage. Duty to Cooperate Most insurance policies also contain a cooperation clause that imposes a duty to cooperate on the policyholder
Goodwin Procter: Financial Services Alert Jul 16, 2002
The Indemnification Limits apply to healthy as well as "troubled" Banks and are designed, said the FRB, "to preserve the deterrent effects of administrative enforcement action by ensuring that individuals subject to final enforcement actions bear the costs of any judgments, fines and associated legal expenses, and to safeguard the assets of financial institutions." The FRB states in the Letter thatit has found in examinations that many by-law indemnification provisions as well as the terms
Weil: Delaware Court Of Chancery Holds That Tyson Relinquishe... Jul 01, 2002
16 In denying Tyson s vacatur request on February 12, 2002, the Court cited Court of Chancery Rule 60(b)(5), which permits [the Court of Chancery] to relieve a party from a final judgment, order, or proceeding when it is no longer equitable that the judgment should have prospective application 17 and Rule 60(b)(6), which empowers the court to alter a final order for any. reason justifying relief from operation of the judgment
Weil: Standing To Appeal A Class Action Settlement Jun 01, 2002
Consistent with the rule in non-class litigation that only parties to a lawsuit can appeal a judgment,3 most circuits require an absent class member to intervene in order to secure appellate standing. Among the arguments favoring an intervention requirement is that court approval should be required when an absent class member seeks to shoulder aside the certified class representative s judgment approving the settlement, especially given that doing so will likely have class-wide reverberations
Paul Weiss: Second Circuit Review: Forced Medication of a Non-Dange... May 22, 2002
7 and are effectively unreviewable on appeal from the final judgment in the case. The court noted that the collateral-order doctrine provides for jurisdiction over non-final orders that conclusively determine a disputed question separate from the merits of a case `Riggins v. Nevada'10 The Supreme Court's 1992 decision in Riggins v. Nevada provided the background for the Second Circuit's analysis in Gomes
Weil: Interlocutory Review Of Class Certification Decisions B... Apr 01, 2002
More than twenty years prior to passage of Rule 23(f), in Coopers & Lybrand v. Livesay, the Supreme Court rejected the death knell doctrine adopted by a number of Courts of Appeals as an exception to the final judgment rule authorizing federal appellate review. 5 The death knell doctrine had permitted appeals from the denial of certification, by assum[ing] that without the incentive of a possible group recovery [an] individual plaintiff may find it economically imprudent to pursue his lawsuit to
Gordon & Rees: Aerojet-General Corporation v. American Excess Insuranc... Mar 12, 2002
4th ___, 02 C.D.O.S. 1954 Unambiguous Terms of Prior Declaratory Judgment Barred Manufacturer from Further Claims Against Insurer for Indemnity and Defense in Subsequent Action for Industrial Pollution. The California Court of Appeal, Third District, affirmed a judgment of dismissal on demurrer entered by the Superior Court, Sacramento County, concluding that the plaintiff's action for declaratory relief was barred by principles of res judicata as a result of an earlier declaratory judgment that
Allen & Overy: Litigation - March 2002 Mar 01, 2002
Appeals Court of Appeal can re-open an appeal after final judgment "Final decisions" can include decisions on costs Costs Indemnity costs revisited Human Rights Common law success displaces rights under Human Rights Act 1998 Limitation No duty on negotiating party to warn of limitation deadlines Procedure Administrative Court Practice Statement Settlement Part 36 payments Avoiding the banana skins New legislation News from the Lord Chancellor's Department. Court of Appeal can re-open an appeal
Hinshaw & Culbertson: Florida Lawyers' Malpractice & Ethics Update Mar 01, 2002
Arent Fox: FTC REVIEW Feb 01, 2002
The stipulated final judgment and order concludes the litigation. FTC Seeks Civil Contempt Liability for Defendants' Violations of Court Order The FTC has asked a federal district court to order Enforma Natural Products, Inc., Andrew Grey, and Michael Ehrman to show cause why they should not be held in civil contempt for violating the terms of a May 2000 final consent order prohibiting unsubstantiated claims for weight loss products
Hayboo: ENVIRONMENTAL ALERT Jan 30, 2002
Haynes Boone | KnowledgeConnect | Federal Appellate Review of Decisions of the Trial Court Before Final Judgment on All Claims 3) { window. visibility = "visible"; } } //-- PublicationHot TopicsPublicationsFirm Seminars5/11/2000 - Federal Appellate Review of Decisions of the Trial Court Before Final Judgment on All Claims AuthorsHeather D. BaileySharon N. FreytagRelated Practice GroupsAppellateJustice Frankfurter’s observations about appellate review provide the initial premise for those seeking
Kirkland & Ellis: Pursuing Appeals on Class Action Status Dec 03, 2001
Fried Frank: Microsoft Reaches Historic Settlement with United State... Nov 09, 2001
The revised proposed final judgment will be published in the Federal Register later this month, along with a Competitive Impact Statement. At that point, the public will have 60 days to comment on the judgment pursuant to the Antitrust Procedures and Penalties Act (also known as the Tunney Act)
Weil: Second Circuit Denies Writ Of Mandamus Seeking To Vacat... Nov 01, 2001
Second, even if the district court precludes the shareholders from introducing the general counsel s deposition testimony at trial, the essence of the privilege confidentiality of attorney-client communications will be vitiated if Dow Corning must await a final judgment before seeking review of the order. Third, although the district court s order has no precedential value, such an order from the Southern District has the potential to serve as a catalyst for the development of a discovery
Buchalter Nemer: Did You File Your Form 1099-C? Oct 01, 2001
2 The expiration of the statute of limitations is an identifiable event only when a debtor s affirmative statute of limitations defense is upheld in a final judgment or decision in a judicial proceeding and the appeal period has expired. Jennifer Smith is an Associate in the Los Angeles General Business Litigation group, specializing in financial institutions litigation, prejudgment and post-judgment remedies, business torts and general business litigation
Arent Fox: FTC REVIEW Oct 01, 2001
The proposed stipulated final judgment and order, which ends the litigation in the case, would, among other things: 1) prohibit the defendants from marketing any lottery-related goods or services and from making certain misrepresentations in connection with the legitimate sale of government securities; 2) permanently ban the defendants from promoting, selling or participating in the sale of tickets, chances, interests or registrations in any lottery to U.S. citizens; 3) prohibit the defendants
Weil: Securities Fraud Plaintiffs Bear A Heavier Class Certif... Oct 01, 2001
Because absent class members are conclusively bound by the judgment in any class action brought on their behalf, the court must be especially vigilant to ensure that the due process rights of all class members are safeguarded through adequate representation at all times. 14 The Fifth Circuit criticized the district court for ignor[ing] the constitutional dimensions of the adequacy requirement, which implicates the due process rights of all members who will be bound by the judgment
McDermott: Civil Rules Advisory Committee Publishes Proposed Amend... Sep 01, 2001
The Advisory Committee s report also observes that the amendment will support a court s decision to decide a motion to dismiss or a motion for summary judgment in advance of deciding the class certification issue. Rule 23(c)(1)(C) would clarify that a class certification order may be altered or amended at any time prior to final judgment
McDermott: Civil Rules Advisory Committee Publishes Proposed Amend... Sep 01, 2001
The Advisory Committee s report also observes that the amendment will support a court s decision to decide a motion to dismiss or a motion for summary judgment in advance of deciding the class certification issue. Rule 23(c)(1)(C) would clarify that a class certification order may be altered or amended at any time prior to final judgment
Arent Fox: FTC REVIEW Sep 01, 2001
The proposed stipulated final judgment and order, which ends the litigation in the case, would, among other things: 1) prohibit the defendants from marketing any lottery-related goods or services and from making certain misrepresentations in connection with the legitimate sale of government securities; 2) permanently ban the defendants from promoting, selling or participating in the sale of tickets, chances, interests or registrations in any lottery to U.S. citizens; 3) prohibit the defendants
Preston Gates & Ellis: Personal Jurisdiction Over Foreign Non-Residents Regard... Aug 01, 2001
2d 1168 (N.D.Cal. 2001); further remarks on that court's November 2001 summary judgment decision that originally appeared in Computer und Recht International are available in the article Enforceability of Foreign Court Decisions Regarding Internet Posting of Content on our Web site. When Yahoo sought a declaration by the U.S. court that the judgment against it in France was unenforceable in the U.S., the two French organizations moved to dismiss, arguing that the U.S. court had no jurisdiction
Arent Fox: FTC REVIEW Aug 01, 2001
The final order bars the defendants, in connection with the advertising, marketing, promotion, distribution, offering for sale or sale via the Internet of any product or service, from misrepresenting: Any material fact; That consumers must register in order to maintain access to newsgroups or the Internet; That consumers must provide personal information to maintain access to newsgroups or the Internet; That they represent an organization recognized by experts or professionals in the field; or
Brown Raysman: Election of Remedies: Lender Must Choose Foreclosure or... Jul 18, 2001
Subsection (1) directs that once final judgment is obtained in an action to recover the amount due on a mortgage debt, a foreclosure action cannot be commenced "unless an execution against the property of the defendant has been issued upon the judgment to the sheriff ... and has been returned wholly or partly unsatisfied." Subsection (2) provides that the foreclosure complaint set forth Kenneth M. Block and Jeffrey B. Steiner are members of Brown Raysman Millstein Felder er, LLP. Melanie Finkel,
Weil: Plan Confirmation Order May Not Be Modified After Subst... Jul 01, 2001
This principle of finality is codified under section 1127(b) of the Bankruptcy Code. Additionally, while Rule 60(b) generally permits the court to grant a party relief from a final judgment or order, including a plan confirmation order, the Federal Rules cannot provide a remedy that the Bankruptcy Code has substantively foreclosed
Weil: Eleventh Circuit Holds Res Judicata Inapplicable to Con... Jul 01, 2001
The doctrine essentially provides that once a matter has been litigated between two parties before a court of competent jurisdiction, and the matter has been finally decided by the courts, the same matter may not be re-litigated between the same parties. The application of res judicata prevents frivolous, multiple litigation and avoids inconsistent judgments
Greenberg Traurig: "Catalyst Theory" is not a Valid Basis for Aw... Jun 01, 2001
The U.S. Supreme Court, on May 29, 2001, held that plaintiffs whose civil rights lawsuits have brought about a desired change in the defendant’s conduct, but have not resulted in a final judgment or court-ordered consent decree, do not have a valid statutory basis for receiving an award of attorneys’ fees. The Court pointed out that both judgments on the merits and court-ordered consent decrees create a material alteration of the parties’ legal relationship, thus permitting an award of
Morrison & Foerster: Trial Court Upholds Some California Environmental Quali... May 01, 2001
This decision was made in an April 25 order which will soon be reflected in a final judgment by the parties to the action (which are the environmental groups, the Resources Agency, and the California Building Industry Association). Thus the court decision on these challenged Guidelines is not final and there is not likely to be a final decision for some time
Akin Gump: Applying Antitrust Law to B2B Marketplaces Apr 01, 2001
3971 (1/12/93) (Proposed Final Judgment and Competitive Impact Statement), the DOJ charged certain airlines with using a complex electronic fare disseminating system to signal potential price increases which could then be withdrawn without any sales being made if competitors did not follow along. Where else is the information available
Morgan Lewis: The Vitamins Litigation in the United States: Case Stud... Mar 01, 2001
A key feature of the system is that in most cases the final judgment or settlement on the merits binds all the absent members of the affected "class" -- which may number in the thousands or even millions -- unless they opt out of the suit. It is this final requirement that is often the most troublesome
Sidley Austin: Supreme Court Business Report - December 2000 Dec 01, 2000
At issueinthiscaseiswhetherstate or federal res judicata (claim preclusion) law applies to a judgment entered by a federal court sitting in diversity juris. Federal and state courts have been hopelessly divided on this issue for decades, applying a variety of different and inconsistent rules that have created substantial uncertainty regarding the preclusive effect of a federal court diversity judgment
Buchalter Nemer: Landlord Liens: How Big of an Impact? Dec 01, 2000
Upon a final judgment in favor of the landlord, the landlord must now attempt to locate the tenant s personal property and have it attached so that the landlord may enforce its judgment. This can prove difficult in instances when a tenant has moved out of state or hidden or transferred assets
Marshall Dennehey: FAILURE TO DEFEND MAY NOT BIND INSURER TO PAY CLAIM Dec 01, 2000
Weil: WGM Internet Law Bulletin Nov 29, 2000
...(Data Protection) Los Angeles Times, et al. v. Free Republic, et al., No. 98-CV-7840-MMM (C.D.Cal., 11/16/00) Court issues final judgment, permanently enjoining and restraining defendants from posting copies of plaintiff's newspaper articles and related comments on their Web site. Court also imposes a fine of $1,000,000, based upon statutory damages, against Free Republic and Jim Robinson jointly and severally
Kirkland & Ellis: Verizon Communications: the merger of Bell Atlantic and... Nov 01, 2000
Drinker Biddle & Reath: Contending with Sanctions in Federal Court Oct 31, 2000
1141, 1159-60 (D.N.J. 1996) (improper to file Rule 11 motion simultaneous with summary judgment motion). Finally, under Local Rule 11
Epstein Becker & Green: The Unfolding Microsoft Drama: Shattered Windows Sep 14, 2000
June 7, 2000 The District Court enters its Final Judgment. Final Judgment Subject to the stay pending consideration of an appeal directly to the U.S. Supreme Court, the Court ordered that Microsot must submit a plan of divestiture (the "Plan") no later than four months after the entry of the Final Judgment, and that that Plan shall be completed within twelve months of the expiration of the stay
Sidley Austin: "That's Final; Are Class-Certification Rulings ... Jul 05, 2000
Sidley Austin Brown | Client Resources | "That's Final; Are Class-Certification Rulings Appealable?"- 7/5/00 The Los Angeles Daily Journal function printPage(){ if(navigator. main); } } -- "That's Final; Are Class-Certification Rulings Appealable?"- 7/5/00 The Los Angeles Daily Journal The Practitioner Appellate Law THAT'S FINAL Are Class-Certification Rulings Appealable
King & Spalding: Federal Taxation Jun 01, 2000
Finally, the authority of the Alumax board was limited under its certificate of. Finally, in October 1991, REE obtained a one year, $450,000 loan from
Drinker Biddle & Reath: The Essentials of Interlocutory Appeals: How to File fo... May 22, 2000
The Basics The court rules provide that an appeal as of right may only be taken to the Appellate Division from a ìfinalî judgment of the Superior Court, Tax Court, Office of Administrative Law or in such cases as are provided by law. The order or judgment being appealed must be final as to all issues and all parties
Hayboo: Federal Appellate Review of Decisions of the Trial Cour... May 11, 2000
Drinker Biddle & Reath: A Stay from the Appellate Division - Now That'... May 05, 2000
However, before the leveling-off period is complete, you realize that your adversary seeks immediate enforcement of the judgment or order. Prior to coming to the Appellate Division for emergent relief, an applicant must first seek a stay from the court or agency that entered the judgment or order being appealed
Goodwin Procter: Financial Services Alert Apr 25, 2000
...the FCUA and explicitly authorized the formation of multiple common bond credit unions, but "also enunciated ©GPH LLP 2000certain limitations relating to group size and geographic expansion." The District Court did not enter a judgment in the ABA Case because, with respect to one count in the plaintiffs' amended complaint which challenged NCUA membership rulings as applied by the NCUA in certain specified regulatory applications, the District Court reserved judgment and asked both sides to
Laughlin: Workers' Compensation Subrogation And Alternative ... Apr 01, 2000
If no party requests a trial de novo within thirty days after the award is rendered, the arbitrator's award becomes a final judgment, just as would a jury verdict. In binding arbitration, the award of the arbitrator is final and dispositive, and there is no right of appeal
Akin Gump: In Depth: "The War In Cyberspace: New Weapons Avai... Feb 03, 2000
A damages claim can be based either on actual damages or, if the plaintiff elects at any time before final judgment is rendered, on an award of statutory damages between $1,000 and $100,000 per domain name "as the court considers just."3 The well-thought-out complaint should include both "in rem" and "in personam" claims. The ACPA's impact is already being felt in the Internet community
Shearman & Sterling: American Inventors Protection Act* Feb 01, 2000
This decision is final and nonreviewable. The AIPA provides that the Director shall issue the patent notwithstanding any appeal, and that if a final judgment in an appeal results in a change of the patent term the Director shall alter the term of the patent to reflect such a change
Finnegan Henderson: Federal Circuit Newsletter Jan 01, 2000
Summary judgment of noninfringement affirmed. 2 PRIOR ART LIMITS DOCTRINE OF EQUIVALENTS Summary judgment of noninfringement affirmed where application of doctrine of equivalents to encompass accused device would ensnare prior art at the time of the invention
Drinker Biddle & Reath: Emergent Appeals: Tips For Saving Time And Money Nov 22, 1999
Prior to coming to the Appellate Division for emergent relief, an applicant must first seek a stay from the court or agency that entered the judgment or order being appealed. R. 2:9-5 (Stay of Judgment in Civil Actions and in Contempts); R. 2:9-3 (Stay Pending Review in Criminal Actions); R. 2:9-4 (Bail After Conviction); R. 2:9-7 (Temporary Relief in Administrative Proceedings)
FROF: Recent U.S. Supreme Court Decision Severely Diminishes ... Oct 05, 1999
" Freeze orders were provided for in equity, however, to avoid an unjust result and to protect the ability of the courts to render an enforceable final judgment. Maintaining the status quo via preliminary injunctions was a protection designed to prevent debtors from dissipating their assets and diminishing the ability of creditors to collect potential money judgments if awarded. Facts of Grupo Mexicano de Desarrollo, S.A.In 1994, Alliance Bond Fund, Inc. a United States-based investment fund
Buchalter Nemer: Class Action Litigation Oct 01, 1999
Finally, even the named class representatives sometimes will not have the case prosecuted by counsel of their choosing. Finally, the process of settling numerous individual claims is simplified and expedited in a class action
Troutman Sanders: Year 2000 Readiness and Responsibility Act Aug 01, 1999
This damage cap, however, only applies to judgments against individual defendants with a net worth of less than $500,000 or small business defendants with fewer than 50 full-time employees. Proportionate Liability - The Act establishes that a defendant will only be liable for the portion of a final judgment that the trier of fact finds is his or her proportionate responsibility amongst all parties (including the plaintiff)
Drinker Biddle & Reath: Title Reinsurer Not Liable for Negligent Title Search Aug 01, 1999
...(b) in the event of litigation until there has been a final determination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title or to the lien of the insured mortgage, as insured. The court rejected the Plaintiff's argument, holding that Section 7(b), rather than Section 7(a), of the policy applied in the event of title priority litigation and that the insurers could only be held liable under the title policies if there was a final court
Paul Weiss: Second Circuit Review: Subject Matter Jurisdiction; App... Jul 28, 1999
" In March 1996, Hk moved for summary judgment on all claims and counterclaims. On March 21, 1997, the district court granted Hk's motion and held an evidentiary hearing to determine appropriate relief. On November 20, 1997, the district court issued an order for entry of final judgment. That order provided in part: Upon review, the court finds Block is entitled to an additional award of $237,324. Under the contracts at issue, the Rezzonicos are not entitled to take advantage of the discount
Morgan Lewis: From the Seller''s Perspective: The Use of Pr... Jul 01, 1999
Again, while you may be able to force the buyer to defend itself in your state, if the buyer has no assets in your state, you would still be required to use cumbersome sister-state proceedings to enforce your final judgment in the buyer's state. Finally, arbitration is the last word on your dispute
Epstein Becker & Green: Appeals Court Ruling Gave Microsoft an Edge Mar 08, 1999
" Advantage Microsoft The failure to make a detailed antitrust analysis of the final judgment and to analyze relevant antitrust principles completely changed the tenor of the current case and has allowed Microsoft an enormous advantage defending its alleged monopoly practice Simply put, the court decided that, since one product exists, there could not be unlawful tie between two products. Supreme Court precedents regarding tying arrangements are well established. In 1953, the court pointed out
Weil: Post-Verdict Efforts To Undo Inequitable Conduct Mar 01, 1999
The court held that Plaintiffs, who were previously denied equitable relief due to their own unclean hands, did not successfully purge the taint of their inequitable actions and thus were not entitled to relief from the judgment that had been entered against them. So, Plaintiffs must be heard to say that the act of returning the previously improperly withdrawn money is the new fact or circumstance that merits the reconsideration of my prior judgment under Rule 60(b) [Relief from Judgment or
Preston Gates & Ellis: DC Circuit Rejects Bill Of Attainder Challenge To Secti... Jan 04, 1999
BellSouth also argued that Section 271 violated equal protection because it placed restrictions only on the BOCs, and violated the separation of powers doctrine because it constituted a legislative usurpation of the consent decree embodied in the Modification of Final Judgment ("MFJ") that broke up AT&T. Finally, even assuming Section 271 was constitutional, BellSouth claimed that the FCC had violated it by rejecting BellSouth's 271 application. This case was not the first time a BOC had
Morgan Lewis: Insider Trading Cases: Settlement Criteria and Recent D... Oct 07, 1998
The Commission may also recover prejudgment interest on disgorgement. Prejudgment interest is calculated at the Internal Revenue Service rate for underpaid taxes
Akin Gump: Murky Language Dooms Arbitration: Standard Clauses are ... Sep 21, 1998
Sometimes these clauses provide only the most basic arbitration language, stating that the parties agree to arbitrate any disputes and that the arbitrator's findings shall be "final, binding, and conclusive." Yet that is good enough to be enforceable under the Federal Arbitration Act (FAA),/1 is it not. The expert's determination would be "final, binding, and conclusive." When PVI exercised its option, the parties could not agree on a price and submitted their respective valuations to a selected
Weil: Additional Recent Decisions of Note Sep 01, 1998
The business decision of appointing a corporate officer to manage retirement health benefits for the corporation does not have the effect of removing from directors in a very substantial way their duty to use their own best judgment on management matters. The Supreme Court explained that under these circumstances the decision dismissing one of the two actions was an interlocutory order in the consolidated proceedings and that no party had requested entry of a final judgment pursuant to Court of
Davis Wright Tremaine: The Telecommunications Act Under Siege Jul 01, 1998
The court recognized that the Modified Final Judgment ("MFJ") dissolving ATsed many of the same restrictions on BOCs' ability to provide long distance service and, unlike that decree, specifically authorizes such entry upon satisfaction of certain conditions. The court nevertheless found that the Act impermissibly reinstates restrictions that had been removed in the MFJ and that the conditions for removal of those restrictions were insufficient to withstand constitutional scrutiny because they
Morgan & Finnegan: "Don''t Assume a ''Judgment�... Jun 15, 1998
Morgan and Finnegan: Articles MORGAN GAN, L.L.P. On Intellectual Property DON'T ASSUME A "JUDGMENT" IN A CIVIL ACTION FOR PATENT INFRINGEMENT IS NECESSARILY FINAL AND APPEALABLE TO THE FEDERAL CIRCUIT By Tony V. Pezzano [Editor's Note: Tony V. Pezzano is a senior associate in the New York-based law firm of Morgan gan, L.L.P. Mr. Pezzano is a graduate of Columbia University and Hofstra University School of Law. Introduction Attorneys unfamiliar with the unique aspects of patent litigation may be
Preston Gates & Ellis: Serving Two Masters: The Dual Jurisdiction of the FCC a... Jun 01, 1998
And like the FCC''s consideration of such mergers under the Communications Act, such consent decrees are effective and final only if they are in "the public interest."38 Political Aspects of Agency Review FCC and DOJ decision making is influenced not only by statutory considerations but also by political pressure emanating from many sources. 45 Referring to the proposed MCI/WorldCom merger, the letter advised both agencies to "closely scrutinize the final proposal, to ensure that consumers
Shaw Pittman: Electronic Publishing Restrictions Upheld: Is Sec. 271 ... May 01, 1998
Pursuant to the modification of final judgment ("MFJ"), that resolved the AT&T litigation in 1982, the BOCs had been forbidden from providing "information services," including electronic publishing. Citing Turner Broadcasting System Inc. v. FCC, 520 U.S. 180 (1997) (Turner II), the court gave "Congress' economic judgments considerable deference, so as not to 'infringe on traditional legislative authority to make predictive judgments when enacting nationwide regulatory policy.'" The court
Arnold Porter: Bifurcated & Multicount Claims: When is a Board of Cont... Apr 01, 1997
...creator = self; } //-- Archived Articles : Government Contracts Bifurcated count Claims: When is a Board of Contract Appeals Decision "Final" for the Purposes of Appeal. title + " - Bifurcated count Claims: When is a Board of Contract Appeals Decision "Final" for the Purposes of Appeal?"; Government Contract Costs, Pricing nting Report April, 1997 The agency boards of contract appeals have created informal procedures and practices to efficiently resolve disputes between contractors and the
Heller Ehrman: The Path to Powerine Nov 09, 1995
In all of the years of heated litigation over insurance coverage for environmental liabilities, no one to our knowledge -- and between us we have litigated insurance cases for more than 25 years -- ever dreamed that standard liability insurance policies only cover judgments in lawsuits and do not cover damages awarded in administrative agency proceedings. Struck by the novel idea in the deleted passage from Foster-Gardner, attorneys for insurers began to assert for the first time in pending
Heller Ehrman: Sentencing Findings & Parallel Proceedings: Watch Out f... Oct 31, 1995
Could the criminal court's findings under the Sentencing Guidelines give the civil plaintiffs summary judgment on damages. Make a Record Negating Elements of Estoppel It is important to make a record at sentencing proceedings that will help defeat a later summary judgment motion in a parallel civil case
Riker Danzig: 10/16/95 How a Residential Foreclosure Law Affects Co... Oct 16, 1995
Provisions Applicable to Residential Mortgages The most significant provision of the act is the "optional foreclosure procedure without sale," If the lender elects this procedure, once judgment of foreclosure is obtained, the need for a sheriff's sale is eliminated and the mortgaged property may be sold and conveyed through an order of the Office of Foreclosure of the Superior Court. If no request for a public sale is made within 30 days of the date of the order, and upon proof of mailing of the
Oblon Spivak: CAFC Reviews Of Interlocutory Decisions Jun 01, 1985
...write("\n\n"); //-- "); } //-- CAFC REVIEW OF INTERLOCUTORY DECISIONS CAFC REVIEW OF INTERLOCUTORY DECISIONS by Charles L. Gholz * Although it is conventional wisdom that the CAFC, like the CCPA before it, only has jurisdiction to review "final judgments" or "final decisions," there are actually at least five techniques which can sometimes be used to obtain CAFC review of interlocutory decisions. However, the word "sometimes" must be emphasized, for experience with these five techniques suggests
Oblon Spivak: Failure To Perfect Claim To Priority During Pendency Of... Jan 01, 1981
Morgan Lewis: Report on the United States Court of Appeals for the Fe... Dec 31, 1979
39 Partial Judgments Under Rule 54(b). P. 41(b); and (5) where a partial final judgment under Fed
Insituform Technologies
Aug. 27, 1997) In this final judgment entered on consent between competing pipeline reconstruction companies, the parties agreed that defendant would be permanently enjoined from embedding or causing to be embedded plaintiff’s federally registered marks INSITUFORM and INSITUPIPE (and/or any other marks or terms confusingly similar to them) into the metatag section of the HTML corresponding to any Internet website, including defendant’s National Liner website. Defendant was required to delete all
Euromarket Designs
On June 21, 2000, the court permanently enjoined defendant from using the CRATE & BARREL mark, the “crateandbarrel-ie.com” and “crateandbarrel.ie” domain names, and any other confusingly similar marks or names in the United States and “on any website on the Internet.” The court entered a final judgment on August 3, 2000. Because defendant had actual knowledge of the injunction and final judgment, the court found defendant to be in “flagrant contempt.” The court imposed a $5,000 per day fine for
Edward M. Wolkowitz v. Redland Insurance Company
Zinder then failed to communicate to Shamrock Choy's offer for a an agreement not to execute on a stipulated judgment against Shamrock in exchange for an assignment of Shamrock's bad faith claim against Redland. They also agreed that Wolkowitz and Choy shared a common interest in maximizing the value of the bankruptcy estate by recovering a judgment against Redland for an amount in excess of Shamrock's policy limit
Paul Wright v. Domain Source
Plaintiff brought suit alleging violations of the ACPA and state claims, and moved for a final judgment by default against defendant, which had never answered the complaint. Finally, the court rejected plaintiff’s request for attorney’s fees simply because defendant defaulted
Simon Property Group L.P. v. mySimon
Third, the survey questions were leading because they "implicitly suggest to the respondent the possibility of a business connection between the [parties'] home pages that the respondent may not have made on his or her own." Finally, regarding plaintiff's concerns about initial-interest confusion, “[a]ny Internet user is familiar with the confusion one confronts with such a welter of search results, but that confusion is the uncertainty about where to go next, not necessarily the confusion that
Microsoft's Conclusions of Law?? Act 3
" In so holding, the Trial Court rendered a very narrow interpretation of the Appeals Court's 1998 decision and stated that the Appeals Court decision pertained to the proper construction to be placed upon a single provision of a Final Judgment, which although "animated by antitrust considerations," was nevertheless still primarily "a matter of determining the contractual intent" of the parties. "The Court of Appeals observations on the extent to which software product design decisions may be
Bulletin 02-02
In March 2000, the district court granted summary judgment for Holmes on its first cause of action and then entered final judgment in favor of Holmes, holding that Holmes’ "sale of its fan and heater products does not infringe any valid or enforceable ‘trade dress’ claimed by defendant Vornado under 15 U.S.C. §§ 1051 et seq." Brief for Petitioner at 3-4, Vornado II. This decision of the district court did not adjudicate any claim which arose under federal patent law. The court instead held that,
Justice Delayed? U.S. Supreme Court Dismisses Nike
Those voting to dismiss relied largely on technical grounds, namely, that because the case was still in the pleadings stage and the California Supreme Court had never entered a “final” judgment, neither party had standing to invoke federal court jurisdiction. Thus, the concurring opinion reasoned, adjudicating the free speech issues would be premature in light of the “novel” First Amendment questions presented by the blending of commercial speech, noncommercial speech, and debate on an issue of
California Litigation Alert - June 7
This arbitration award was eventually reduced to a judgment against the three defendants entered by the trial court. Subsequently, the two remaining defendants who were not part of the arbitration brought a motion for summary judgment in the trial court
August 1995 / Vol 5
If no party requests a trial de novo within thirty days after the award is rendered, the arbitrator's award becomes a final judgment, just as would a jury verdict. In binding arbitration, the award of the arbitrator is final and dispositive, and there is no right of appeal
Legal Alert: Valley Drug Co. v. Geneva Pharmaceuticals
2 The district court agreed, granting the plaintiffs' motion for partial summary judgment on the basis that the agreements were per se anticompetitive. In Abbott's agreement with Geneva, Geneva agreed not to sell or distribute any pharmaceutical product containing any form of the drug at issue until either Abbott's patent expired, someone else introduce a generic form of the drug, or Geneva obtained a favorable court judgment that its drug did not infringe or that the patent was invalid
05-01-01: IP Update
The patentee argued that a final judgment of infringement had already been entered and the"law of the case" applied. The Federal Circuit, citing US Supreme Court precedent, held that the Festo decision must apply retroactively "in all cases still open on direct review and as to all events." Because the "final judgment" was still open before the Federal Circuit for review (albeit on the issues of damages and whether induced infringement should apply to one defendant), the Federal Circuit held
05-01-01: IP Update
The patentee argued that a final judgment of infringement had already been entered and the"law of the case" applied. The Federal Circuit, citing US Supreme Court precedent, held that the Festo decision must apply retroactively "in all cases still open on direct review and as to all events." Because the "final judgment" was still open before the Federal Circuit for review (albeit on the issues of damages and whether induced infringement should apply to one defendant), the Federal Circuit held
06-30-98: Antitrust Wire
05 Billion Antitrust Judgment in Conwood International Developments. Inc., Proposed Final Judgment and Competitive Impact Statement, 67 Fed
07-01-04: IP Update
Both parties moved for summary judgment. The district court, on summary judgment, then ruled that Trex did not infringe because its boards were not made of wood
12-01-02: IP Update
Subsequently, Pingel successfully moved for summary judgment on the antitrust, unfair competition and state tort claims. The Federal Circuit then affirmed the district court s summary judgment rulings regarding the antitrust, unfair competition and tort claims because Golan failed to define the relevant market or to prove Pingel acted in bad faith when it advised Golan s customers regarding its patent infringement
12-01-02: IP Update
Subsequently, Pingel successfully moved for summary judgment on the antitrust, unfair competition and state tort claims. The Federal Circuit then affirmed the district court s summary judgment rulings regarding the antitrust, unfair competition and tort claims because Golan failed to define the relevant market or to prove Pingel acted in bad faith when it advised Golan s customers regarding its patent infringement
: IP Update Vol. 6
Cablevision counterclaimed for declaratory judgments of invalidity, non-infringement and unenforceability. Schering sued generic drug makers of loratadine for infringing the `716 claims to DCL. The district court construed the claims to cover all forms of DCL, including forms "metabolized within the human body" and granted summary judgment of invalidity because DCL was formed as a metabolite through the process disclosed in Schering s `233 patent
: IP Update Vol. 6
Cablevision counterclaimed for declaratory judgments of invalidity, non-infringement and unenforceability. Schering sued generic drug makers of loratadine for infringing the `716 claims to DCL. The district court construed the claims to cover all forms of DCL, including forms "metabolized within the human body" and granted summary judgment of invalidity because DCL was formed as a metabolite through the process disclosed in Schering s `233 patent
Akin Gump: Patent Litigation: Settlement of a Patent Infringement ...
Aside from the cost and risk involved in litigating the infringement and validity issues, a substantial motivation for settlement is the patentee's often incorrect belief that by settling the case before any adverse final judgment on the merits, the patentee can avoid being bound by the adverse claim construction in future litigation. However, significant authority exists to support the conclusion that the patentee is bound by the adverse claim construction after a Markman hearing, even if the
Akin Gump: Collateral Estoppel & Markman Timing
From this decision, a jurisprudence has developed with respect to Markman rulings, touching upon both their procedure and their finality. The importance of finality is well illustrated in cases where an adverse construction for the patentee/plaintiff has been used in an effort to prevent relitigation of those claims in a second suit
Baker & Hostetler: New Approaches to Environmental Law and Agency Regulati...
Ballard Spahr: EEOC Final Rule On Waiver Of ADEA Claims
The final regulations and accompanying EEOC commentary were published in the Federal Register on December 11, 2000. Highlights of the Final Regulations An employee or former employee cannot be required to tender back – either by operation of common law or by agreement – the consideration received for executing a waiver, covenant not to sue, or other equivalent arrangement under the ADEA if he or she files a discrimination lawsuit or administrative charge against the employer
Calton Fields: Appellate Practice Pointer - July 2003
The trial court entered a final judgment in favor of the plaintiffs. On appeal, Publix argued that section 768
Calton Fields: Products Liability Case of the Month - October 2003
4th DCA 2003) $10 MILLION VERDICT AGAINST DU PONT REVERSED The Fourth District Court of Appeal (West Palm Beach) reversed a $10 million final judgment against Du. Du Pont filed a motion for summary judgment arguing the case was a "pure and simple failure to warn" case preempted by federal law
Finnegan Henderson: Toys
Gibbons: In-Sites Vol. 8 No. 3
The first significant change amended N.J.S.A. 54:51A-1 to grant the Tax Court the power to relax the requirement that taxes must be paid to date when filing an appeal from a county tax board judgment. Although the payment of taxes is still a jurisdictional requisite to filing an appeal from a county tax board judgment, the Tax Court now has some leeway in permitting the appeal to move forward whereas in the past, it had no choice but to dismiss the action
Goodwin Procter: Federal Circuit Applies Rebuttable Presumption of Surre...
Finally, the patentee can demonstrate that there was "some other reason" why the patentee could not reasonably be expected to have literally claimed the alleged equivalent. First, the Festo framework has full retroactive effect; it applies to all granted patents and to all pending litigation that has not been concluded with a final judgment, including appeals
Hinshaw & Culbertson: The MCS-90 Endorsement
Beyond the timing of the effective dates of the endorsement, other language of interest includes the provision that "no condition, provision, stipulation, or limitation . . . shall relieve the company from liability or from the payment of any final judgment." While this is so, the endorsement expressly notes that the terms of the policy are in full force and effect as binding between the insured and the insurer and, sometimes most important of all, that the insured agrees to reimburse the
Honigman Miller: Sixth Circuit Orders Reinstatement of CWA Fine
The court noted that the judge's action was tantamount to relieving the Pauleys from a "final judgment," and that such relief is governed by Federal Rule of Civil Procedure 60(b)(6), which provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment" for "any...reason justifying relief from the operation of the judgment" (emphasis added). Citing past precedent, the court observed that the phrase "on motion" had
Honigman Miller: Appeals Court Upholds CERCLA Settlement
The City then sued the Simon Group, Eaton and other past users of the Property, seeking to recover the environmental cleanup and investigation costs already incurred, and entry of a declaratory judgment with respect to future remediation costs. The City moved for partial judgment before trial on a claim that the Simon Group was responsible for all of the City's PCB cleanup costs
Howard Rice: Jurisdiction Over Privacy Issues on the Internet
"42 In late 2001, Yahoo! Inc. obtained a declaratory judgment from a federal district court in California holding that any final judgment in the French case would not be enforceable in the United States, because it would violate constitutional freedom of speech. C. Applying the "Effects" Test in Cyberspace. If the website operator intends to cause an effect in a given forum and actually does, he arguably avails himself of the privilege of doing business there in the same manner as occurred in
Kilpatrick Stockton: Appellate Litigation Column
For example, under the Federal Arbitration Act, any final decision is immediately appealable. In addition, in a notable exception to the usual "final judgment" rule of appellate jurisdiction, interlocutory decisions that are adverse to arbitration, and only those interlocutory orders, are immediately appealable; interlocutory orders favorable to arbitration are not subject to immediate appeal, and therefore appellate review must await the final arbitral decision
King & Spalding: Guidelines for Enforcing Money Judgements Abroad
Guidelines for Enforcing Money Judgments Abroad. When litigation involves a debtor domiciled or with assets in another country, it is important for counsel to plan in advance how to enforce abroad any money judgment that may be obtained
Oblon Spivak: The Decisions of the Board in An Interference Are Entit...
...e., by appeal under 35 USC 141 or by a civil action under 35 USC 146] and it becomes final, it is. "). Of course, if the board enters judgment against a patentee as to any count, that results in the cancellation of the claims in the patent that are designated as corresponding to that count which is the ultimate in issue-preclusion effect! 5. See generally Harmon, Patents and the Federal Circuit (3d. ed. 1994) 1.5, "Presumption of Validity
Piper Rudnick: Maryland Assembly Answers the Late Fee Questions Raised...
Riker Danzig: 1/95 Proposed Foreclosure Legislation
Further, the bill provides that a homeowner could cure a default and reinstate the mortgage any time prior to entry of final judgment by paying only the past due amount, the mortgagee's legal fees, and any contractual late fees. The "Commercial Mortgage Non-Judicial Foreclosure Act" delineates a procedure to be followed which would permit non-judicial foreclosure of commercial mortgages by power of sale
Riker Danzig: 9/95 Governor signs Fair Foreclosure Act
If a public sale is properly requested, the Office of Foreclosure shall enter a judgment of foreclosure, which establishes a public sale in accordance with applicable law. In the absence of any redemption or request for public sale, and upon proof of mailing of the order for redemption to all defendants, the lender shall be entitled to a judgment debarring and foreclosing the equity of redemption of the defendants in the property and adjudging the lender to be vested with a valid and
Riker Danzig: 12/03 Relocation Out Of State With A Child During Or A...
Often during the pendency of a divorce or custody litigation, or sometimes even long after a final divorce or custody determination is made, one parent seeks to relocate out of state with a child for what can be a myriad of reasons, such as a job transfer, a desire or financial need to be close to extended family, or remarriage. If there is no final agreement or judgment of custody at the time the request for relocation is made, a court must first make a custody determination before considering
Stoel Rives: The Anti-Circumvention Rules of the Digital Millennium ...
The final injunction was modified to prohibit the Web site owners from even posting the hypertext links to other sites from which DeCSS could be obtained. For repeated violations within three years of a final judgment for earlier violations, the damages can be trebled
Stroock: Statement From Commission: NYSE Governance Proposal
While the Commission reserves final judgment on the proposal until after the public comment period, we look forward to considering the public comments received and thoroughly reviewing the submission. The Commission will continue to consider further market-wide reforms, including governance and regulatory reforms, in the coming months as it proceeds with its broad review of market structure issues
Stroock: Federal Court Approves Settlement of SEC Enforcement Ac...
The Court also entered separate Final Judgments as to each of the 12 defendants. The Final Judgments also require the firms to make payments totaling $432
Troutman Sanders: EPA Overfiling After Harmon
Public Participation C. Final Judgment on the Merits 1. State Court Judgments 2
Vinson & Elkins: "United States v. Computer Associates: Valuable Gu...
Vinson Elkins: Current Issues in Directors and Officers Liability Insu...
Weil: SEC Sues for Alleged Violations of Regulation FD
See generally Final Rule: Selective Disclosure and Insider Trading, Exchange Act Rel. In the enforcement action in federal court, Schering-Plough consented to the entry of a final judgment requiring it to pay a $1 million civil penalty
Weil: Cash Balance Plans Update
In the judicial arena, IBM s motion for an immediate appeal of the district court decision was denied and therefore, IBM will not be able to appeal Judge Murphy s decision until a final judgment is entered in the district court. Judge Murphy denied IBM's motion to strike plaintiffs' supplemental remedies brief and took other pending motions, including motions for summary judgment and partial judgment filed by both plaintiffs and defendants, under advisement
Weil: Control Person Liability Under The Exchange Act; Possib...
These courts recognized that First Jersey was not a pleading case rather, it was an appeal from a final judgment after a bench trial and therefore was an odd format for the Second Circuit to address a split within the circuit. 2d 331, 353 (S.D.N.Y. 2001); Mishkin, 1998 WL 651065 at *23 ( [A]lthough the [circuit] court does indeed refer to the elements of a prima facie case, First Jersey was not a pleading case it was an appeal from a final judgment after a bench trial
White & Case: Protecting Foreign Investors' Intellectual Propert...
The case was finally adjudicated on May 30, 2003 when the Beijing Municipal Higher Peoples Court issued its final judgment upholding the validity of the patent of the Honda Design and quashing both the judgment of the Beijing No.1 Intermediate Peoples Court and the ruling of the Commission. The Higher Court therefore came to a conclusion that the Honda Design and the Comparable Design were different in exterior design and upheld the validity of the Honda Designs patent as a final judgment
White and Williams: Philadelphia County Local Rule Permitting Sanctions Aga...
The Rule provided that, if the proposed settlement was accepted by the plaintiff but rejected by the defendant and the final judgment was 20% more than the recommended settlement, the trial judge could impose sanctions upon the defendant for the failure to settle. Similarly, if the proposed settlement was accepted by the defendant but rejected by the plaintiff and the final judgment was 20% less than the recommended settlement, the trial judge could impose sanctions upon the plaintiff for the
Wiley Rein & Fielding: Third-Party Claimant Lacks Standing To Sue D&O Insurer
...src'); } } Search GO Third-Party Claimant Lacks Standing To Sue DrerThe Executive Summary, April 2003 A federal district court, applying California law, has held that a third-party claimant lacks standing to sue a D&O insurer to collect a default judgment, rejecting arguments that the third party has the right to do so (1) under a California insurance statute or, alternatively, (2) as an intended third-party beneficiary to the insurance contract. After voluntarily dismissing the directors, the
Wiley Rein & Fielding: WorldCom Granted Extension to Emerge from Bankruptcy
Additionally, upon the effective date, the Plan will operate as a final judgment, and any issues that could have been raised regarding the Plan will be barred by the doctrine of res judicata. Thus, questions related to treatment of creditor’s under the Plan or the discharge of liabilities will be precluded
Insituform Technologies
Aug. 27, 1997) In this final judgment entered on consent between competing pipeline reconstruction companies, the parties agreed that defendant would be permanently enjoined from embedding or causing to be embedded plaintiff’s federally registered marks INSITUFORM and INSITUPIPE (and/or any other marks or terms confusingly similar to them) into the metatag section of the HTML corresponding to any Internet website, including defendant’s National Liner website. Defendant was required to delete all
Euromarket Designs
On June 21, 2000, the court permanently enjoined defendant from using the CRATE & BARREL mark, the “crateandbarrel-ie.com” and “crateandbarrel.ie” domain names, and any other confusingly similar marks or names in the United States and “on any website on the Internet.” The court entered a final judgment on August 3, 2000. Because defendant had actual knowledge of the injunction and final judgment, the court found defendant to be in “flagrant contempt.” The court imposed a $5,000 per day fine for
Paul Wright v. Domain Source
Plaintiff brought suit alleging violations of the ACPA and state claims, and moved for a final judgment by default against defendant, which had never answered the complaint. Finally, the court rejected plaintiff’s request for attorney’s fees simply because defendant defaulted
Simon Property Group L.P. v. mySimon
Third, the survey questions were leading because they "implicitly suggest to the respondent the possibility of a business connection between the [parties'] home pages that the respondent may not have made on his or her own." Finally, regarding plaintiff's concerns about initial-interest confusion, “[a]ny Internet user is familiar with the confusion one confronts with such a welter of search results, but that confusion is the uncertainty about where to go next, not necessarily the confusion that
California Litigation Alert - November 16
For at least two independent reasons, however, there are strong arguments that Proposition 64 applies to cases that are currently pending and not yet final. The reasoning of these cases is that rights that are created by statute do not vest in the holder until they are incorporated into a final judgment; thus, before a final judgment is entered, the repeal of a statute does not deprive a person of any vested right
Microsoft's Conclusions of Law?? Act 3
" In so holding, the Trial Court rendered a very narrow interpretation of the Appeals Court's 1998 decision and stated that the Appeals Court decision pertained to the proper construction to be placed upon a single provision of a Final Judgment, which although "animated by antitrust considerations," was nevertheless still primarily "a matter of determining the contractual intent" of the parties. "The Court of Appeals observations on the extent to which software product design decisions may be
Bulletin 02-02
In March 2000, the district court granted summary judgment for Holmes on its first cause of action and then entered final judgment in favor of Holmes, holding that Holmes’ "sale of its fan and heater products does not infringe any valid or enforceable ‘trade dress’ claimed by defendant Vornado under 15 U.S.C. §§ 1051 et seq." Brief for Petitioner at 3-4, Vornado II. This decision of the district court did not adjudicate any claim which arose under federal patent law. The court instead held that,
August 1995 / Vol 5
If no party requests a trial de novo within thirty days after the award is rendered, the arbitrator's award becomes a final judgment, just as would a jury verdict. In binding arbitration, the award of the arbitrator is final and dispositive, and there is no right of appeal
Legal Alert: Valley Drug Co. v. Geneva Pharmaceuticals
2 The district court agreed, granting the plaintiffs' motion for partial summary judgment on the basis that the agreements were per se anticompetitive. In Abbott's agreement with Geneva, Geneva agreed not to sell or distribute any pharmaceutical product containing any form of the drug at issue until either Abbott's patent expired, someone else introduce a generic form of the drug, or Geneva obtained a favorable court judgment that its drug did not infringe or that the patent was invalid
Decision: United States of America v. Visa U.S.A.
Appeal from a judgment of the United States District Court for the Southern District of New York (Jones, J.) holding that the defendant payment card networks violated the Sherman Antitrust Act, 15 U.S.C. § 1, by "exclusionary rules" that barred their member banks from issuing credit and charge cards on rival networks. The Court of Appeals (Leval, J.) affirms the judgment
Construction Law News Volume 2
The final version of the Act, as enrolled and sent to the President, contained the Senate provisions for a three year waiting period and a $5,000,000 floor. Once an arbitration award is rendered, it is final and judgment upon it may be entered by a court of competent jurisdiction
United States of America v. Visa U.S.A Inc.
PRELIMINARY STATEMENT Visa appeals from the decision and judgment entered by Judge Barbara S.. The order denying Visa's motion to alter or amend the final judgment was entered on February 19, 2002
01-01-00: Ip Update
The lower court, in response to a summary judgment motion, ruled that the claim was indefinite since essential subject matter (the content of the article) was improperly incorporated by reference; and that without the IEEE article, there was no disclosed structure for performing the claimed function. Ms. Welles succeeded on her motion for summary judgment that her use of the Playboy mark in titles and in metatags on her web site did not constitute trademark infringement
01-01-00: Ip Update
The lower court, in response to a summary judgment motion, ruled that the claim was indefinite since essential subject matter (the content of the article) was improperly incorporated by reference; and that without the IEEE article, there was no disclosed structure for performing the claimed function. Ms. Welles succeeded on her motion for summary judgment that her use of the Playboy mark in titles and in metatags on her web site did not constitute trademark infringement
02-01-03: IP Update
Based on the claim construction, the district court entered a judgment of non-infringement. Patents No Infringement When Filing FDA Application for Generic Drug for Non-Patented Use By Jennifer L. Yokoyama The U.S. Court of Appeals for the Federal Circuit has upheld the grant of summary judgment of non-infringement of a patent claiming a method of using the drug gabapentin to treat "neurodegenerative diseases" where the defendant applied to use the drug for the treatment of epilepsy
02-01-03: IP Update
Based on the claim construction, the district court entered a judgment of non-infringement. Patents No Infringement When Filing FDA Application for Generic Drug for Non-Patented Use By Jennifer L. Yokoyama The U.S. Court of Appeals for the Federal Circuit has upheld the grant of summary judgment of non-infringement of a patent claiming a method of using the drug gabapentin to treat "neurodegenerative diseases" where the defendant applied to use the drug for the treatment of epilepsy
05-01-01: IP Update
The patentee argued that a final judgment of infringement had already been entered and the"law of the case" applied. The Federal Circuit, citing US Supreme Court precedent, held that the Festo decision must apply retroactively "in all cases still open on direct review and as to all events." Because the "final judgment" was still open before the Federal Circuit for review (albeit on the issues of damages and whether induced infringement should apply to one defendant), the Federal Circuit held
05-01-01: IP Update
The patentee argued that a final judgment of infringement had already been entered and the"law of the case" applied. The Federal Circuit, citing US Supreme Court precedent, held that the Festo decision must apply retroactively "in all cases still open on direct review and as to all events." Because the "final judgment" was still open before the Federal Circuit for review (albeit on the issues of damages and whether induced infringement should apply to one defendant), the Federal Circuit held
05-01-03: IP Update
On the basis of that claim construction, Cisco moved for summary judgment of non-infringement. Finally, the Federal Circuit found that the district court claim construction improperly ignored the "improved competence" language in the preamble: "[C]lear reliance on the preamble during prosecution to distinguish the claimed invention from the prior art transforms the preamble into a claim limitation because such reliance indicated use of the preamble to define, in part, the claimed invention."
05-01-03: IP Update
On the basis of that claim construction, Cisco moved for summary judgment of non-infringement. Finally, the Federal Circuit found that the district court claim construction improperly ignored the "improved competence" language in the preamble: "[C]lear reliance on the preamble during prosecution to distinguish the claimed invention from the prior art transforms the preamble into a claim limitation because such reliance indicated use of the preamble to define, in part, the claimed invention."
06-30-98: Antitrust Wire
05 Billion Antitrust Judgment in Conwood International Developments. Inc., Proposed Final Judgment and Competitive Impact Statement, 67 Fed
07-01-00: IP Update
The lower court granted the defendants summary judgment of non-infringement. The district court granted summary judgment for Koch, holding that Glitsch had already waived its right to litigate the affirmative defense of misuse in the original action
07-01-00: IP Update
The lower court granted the defendants summary judgment of non-infringement. The district court granted summary judgment for Koch, holding that Glitsch had already waived its right to litigate the affirmative defense of misuse in the original action
07-01-04: IP Update
Both parties moved for summary judgment. The district court, on summary judgment, then ruled that Trex did not infringe because its boards were not made of wood
08-01-04: IP Update
The April 8, 2004 panel decision of the Federal Circit affirmed the district court s summary judgment of non-infringement by AWH of Phillips wall modules. Unitherm sued Swift-Eckrich, Inc. (doing business as ConAgra) for a declaratory judgment of patent invalidity and non-infringement, and for attempted monopolization
09-01-00: IP Update
Under the doctrine of claim preclusion, a judgment on the merits in a prior suit bars a second suit involving the same parties based on the same cause of action. A suit will be barred by claim preclusion if the following three factors are present: (1) identity of parties, (2) an earlier final judgment on the merits of a claim, and (3) the basis of the second claim on the same set of transactional facts as the first
09-01-00: IP Update
Under the doctrine of claim preclusion, a judgment on the merits in a prior suit bars a second suit involving the same parties based on the same cause of action. A suit will be barred by claim preclusion if the following three factors are present: (1) identity of parties, (2) an earlier final judgment on the merits of a claim, and (3) the basis of the second claim on the same set of transactional facts as the first
09-30-97: Antitrust Wire
Those with a little gray hair will recall that it has been two decades since the last DOJ antitrust cases involving technology of this magnitude: those against IBM and ATther got all the way to an appellate decision; the AT settled with the now-infamous Modified Final Judgment creating the Baby Bells, and antitrust chief Bill Baxter convinced the Reagan administration to drop entirely the long-running litigation against IBM. No informed observer has ever given decent odds to the possibility of
10-01-04: IP Update
Patents / Claim Construction - Limiting Effect of Specification and Prosecution History Trumps Ordinary Meaning Rule Patents / Summary Judgment Actions - Contested Term Given Broad Interpretation Based on Intrinsic Evidence Patents / Choice of Laws - Orders Staying Parallel Litigation Subject to Immediate Appeal Patents / Damages - Patentee Must Sell At Least One Item to Claim Lost Profits Patents / Damages - Monsanto Reaps Where Ralph Has Sown Patents / Interferences - USPTO Must Make Findings
12-01-02: IP Update
Subsequently, Pingel successfully moved for summary judgment on the antitrust, unfair competition and state tort claims. The Federal Circuit then affirmed the district court s summary judgment rulings regarding the antitrust, unfair competition and tort claims because Golan failed to define the relevant market or to prove Pingel acted in bad faith when it advised Golan s customers regarding its patent infringement
12-01-02: IP Update
Subsequently, Pingel successfully moved for summary judgment on the antitrust, unfair competition and state tort claims. The Federal Circuit then affirmed the district court s summary judgment rulings regarding the antitrust, unfair competition and tort claims because Golan failed to define the relevant market or to prove Pingel acted in bad faith when it advised Golan s customers regarding its patent infringement
: IP Update Vol. 6
Cablevision counterclaimed for declaratory judgments of invalidity, non-infringement and unenforceability. Schering sued generic drug makers of loratadine for infringing the `716 claims to DCL. The district court construed the claims to cover all forms of DCL, including forms "metabolized within the human body" and granted summary judgment of invalidity because DCL was formed as a metabolite through the process disclosed in Schering s `233 patent
: IP Update Vol. 6
Cablevision counterclaimed for declaratory judgments of invalidity, non-infringement and unenforceability. Schering sued generic drug makers of loratadine for infringing the `716 claims to DCL. The district court construed the claims to cover all forms of DCL, including forms "metabolized within the human body" and granted summary judgment of invalidity because DCL was formed as a metabolite through the process disclosed in Schering s `233 patent
: C&P Report: Insurance Reinsurance Regulation
Massachusetts Jury Finds Casualty Facultative Reinsurance Certificate Covers Declaratory Judgment Expenses. reinsurance certificate provides coverage for declaratory judgment expenses
Akin Gump: Patent Litigation: Settlement of a Patent Infringement ...
Aside from the cost and risk involved in litigating the infringement and validity issues, a substantial motivation for settlement is the patentee's often incorrect belief that by settling the case before any adverse final judgment on the merits, the patentee can avoid being bound by the adverse claim construction in future litigation. However, significant authority exists to support the conclusion that the patentee is bound by the adverse claim construction after a Markman hearing, even if the
Akin Gump: Collateral Estoppel & Markman Timing
From this decision, a jurisprudence has developed with respect to Markman rulings, touching upon both their procedure and their finality. The importance of finality is well illustrated in cases where an adverse construction for the patentee/plaintiff has been used in an effort to prevent relitigation of those claims in a second suit
Akin Gump: Amendments to Federal Rules of Civil Procedure Provide ...
Courts do retain authority to amend or decertify a class based on subsequently discovered information, and the rule is further clarified to permit a court to amend the certification order at any time prior to final judgment. Because the previous rule spoke in terms of permitting amendments to certification orders prior to a decision on the merits, it was often unclear whether a court retained authority to amend a class definition after judgment on liability had been obtained but before all the
Calton Fields: Appellate Practice Pointer - July 2003
The trial court entered a final judgment in favor of the plaintiffs. On appeal, Publix argued that section 768
Calton Fields: Products Liability Case of the Month - October 2003
4th DCA 2003) $10 MILLION VERDICT AGAINST DU PONT REVERSED The Fourth District Court of Appeal (West Palm Beach) reversed a $10 million final judgment against Du. Du Pont filed a motion for summary judgment arguing the case was a "pure and simple failure to warn" case preempted by federal law
Clifford Chance: Private Antitrust Litigation:United States
Cooley Godward: California AB 1000 -- Changes to California Disclosure ...
Dickstein Shapiro: Is Inter Partes Re-Examination a Viable Alternative to ...
Once the examiner makes a final determination as to whether or not the claims are patentable, each party (the patent owner and the third-party requester) has an opportunity to appeal any adverse decision to the Board of Appeals. This should be followed by an analysis of whether or not the third party could design around such narrower claim(s) and finally, a reanalysis of whether alternative valid claims can be written to cover the new design
Finnegan Henderson: Toys
Gardner Carton: A Short History of Civil and Criminal Antitrust Remedie...
But the final amount of the approved settlement in March 2000 was only $242 million because 224 direct purchasers (representing an estimated 75% of the direct sales) opted out of the settlement to pursue individual suits. Re: Final Approval of Settlement, In re Vitamins Antitrust Litig
Gibbons: In-Sites Vol. 8 No. 3
The first significant change amended N.J.S.A. 54:51A-1 to grant the Tax Court the power to relax the requirement that taxes must be paid to date when filing an appeal from a county tax board judgment. Although the payment of taxes is still a jurisdictional requisite to filing an appeal from a county tax board judgment, the Tax Court now has some leeway in permitting the appeal to move forward whereas in the past, it had no choice but to dismiss the action
Honigman Miller: Sixth Circuit Orders Reinstatement of CWA Fine
The court noted that the judge's action was tantamount to relieving the Pauleys from a "final judgment," and that such relief is governed by Federal Rule of Civil Procedure 60(b)(6), which provides that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment" for "any...reason justifying relief from the operation of the judgment" (emphasis added). Citing past precedent, the court observed that the phrase "on motion" had
Honigman Miller: Appeals Court Upholds CERCLA Settlement
The City then sued the Simon Group, Eaton and other past users of the Property, seeking to recover the environmental cleanup and investigation costs already incurred, and entry of a declaratory judgment with respect to future remediation costs. The City moved for partial judgment before trial on a claim that the Simon Group was responsible for all of the City's PCB cleanup costs
Howard Rice: Jurisdiction Over Privacy Issues on the Internet
"42 In late 2001, Yahoo! Inc. obtained a declaratory judgment from a federal district court in California holding that any final judgment in the French case would not be enforceable in the United States, because it would violate constitutional freedom of speech. C. Applying the "Effects" Test in Cyberspace. If the website operator intends to cause an effect in a given forum and actually does, he arguably avails himself of the privilege of doing business there in the same manner as occurred in
King & Spalding: Guidelines for Enforcing Money Judgements Abroad
Guidelines for Enforcing Money Judgments Abroad. When litigation involves a debtor domiciled or with assets in another country, it is important for counsel to plan in advance how to enforce abroad any money judgment that may be obtained
Littler Mendelson: Employment Class Actions: Be Prepared Before a Suit is ...
With the potential for multi million-dollar judgments or settlements, and awards of attorney's fees in addition, plaintiffs' attorneys are increasingly utilizing class actions to challenge a myriad of employment issues well beyond the traditional class claims of employment discrimination illustrated by these headlines. Rule 23(a)(4) requires a determination that "the representative parties will fairly and adequately protect the interests of the class." This prerequisite is intended to protect
Quinn Emanuel: Download the entire newsletter in PDF format
Finally, the Court toughened the burden plaintiffs must carry to support allegations of illegal insider trading. Finally, the Court suggested that a cybersquatter's use of any top-level domain other than ".com" should receive less judicial scrutiny
Sidley Austin: Investment Companies & Investment Managers Newsletter
At issueinthiscaseiswhetherstate or federal res judicata (claim preclusion) law applies to a judgment entered by a federal court sitting in diversity juris. Federal and state courts have been hopelessly divided on this issue for decades, applying a variety of different and inconsistent rules that have created substantial uncertainty regarding the preclusive effect of a federal court diversity judgment
Stroock: Statement From Commission: NYSE Governance Proposal
While the Commission reserves final judgment on the proposal until after the public comment period, we look forward to considering the public comments received and thoroughly reviewing the submission. The Commission will continue to consider further market-wide reforms, including governance and regulatory reforms, in the coming months as it proceeds with its broad review of market structure issues
Stroock: Federal Court Approves Settlement of SEC Enforcement Ac...
The Court also entered separate Final Judgments as to each of the 12 defendants. The Final Judgments also require the firms to make payments totaling $432
Weil: SEC Sues for Alleged Violations of Regulation FD
See generally Final Rule: Selective Disclosure and Insider Trading, Exchange Act Rel. In the enforcement action in federal court, Schering-Plough consented to the entry of a final judgment requiring it to pay a $1 million civil penalty
Weil: Cash Balance Plans Update
In the judicial arena, IBM s motion for an immediate appeal of the district court decision was denied and therefore, IBM will not be able to appeal Judge Murphy s decision until a final judgment is entered in the district court. Judge Murphy denied IBM's motion to strike plaintiffs' supplemental remedies brief and took other pending motions, including motions for summary judgment and partial judgment filed by both plaintiffs and defendants, under advisement
Weil: Control Person Liability Under The Exchange Act; Possib...
These courts recognized that First Jersey was not a pleading case rather, it was an appeal from a final judgment after a bench trial and therefore was an odd format for the Second Circuit to address a split within the circuit. 2d 331, 353 (S.D.N.Y. 2001); Mishkin, 1998 WL 651065 at *23 ( [A]lthough the [circuit] court does indeed refer to the elements of a prima facie case, First Jersey was not a pleading case it was an appeal from a final judgment after a bench trial
Weil: Director Liability Warnings From Delaware
These new expectations suggest heightened judicial scrutiny of director conduct and may lead to new limitations on the protection provided to directors by the business judgment rule. Finally, we note that from June 2002 through today, the Delaware Supreme Court has issued written decisions in five cases involving the performance by directors of their fiduciary duties
Weil: Class Certification And Opt-Out Rights
8 But in an important footnote, the Court limited its holding to those class actions which seek to bind known plaintiffs concerning claims wholly or predominantly for money judgments. The Court of Appeals for the Ninth Circuit reversed the district court s grant of summary judgment on res judicata grounds for defendants and held that to accord res judicata would violate due process because class members had not been given the chance to opt out
White & Case: U.S. Antitrust Issues in Software Licensing and Distrib...
White and Williams: Philadelphia County Local Rule Permitting Sanctions Aga...
The Rule provided that, if the proposed settlement was accepted by the plaintiff but rejected by the defendant and the final judgment was 20% more than the recommended settlement, the trial judge could impose sanctions upon the defendant for the failure to settle. Similarly, if the proposed settlement was accepted by the defendant but rejected by the plaintiff and the final judgment was 20% less than the recommended settlement, the trial judge could impose sanctions upon the plaintiff for the
Wiley Rein & Fielding: Settlement Requiring Disgorgement of Funds Does Not Con...
Credit Suisse First Boston Corp. (CSFB) purchased an Ecy providing coverage "for any actual or alleged Wrongful Act arising from the rendering of, or the failure to render, services to any client, customer or other person or entity." The policy defined "loss" as "all damages, awards, judgments, settlements, costs and Defense Costs, and shall include, without limitation, pre-judgment interest, post-judgment interest, equitable relief, punitive or exemplary damages, treble or other multiplied
Wiley Rein & Fielding: Asserting and Defending Aviation Related Claims in Bank...
In a "core proceeding," the bankruptcy court has jurisdiction to hear and finally determine the entire action. Absent the consent of all parties, it may hear the matter but cannot issue a final order or decision
Insituform Technologies
Aug. 27, 1997) In this final judgment entered on consent between competing pipeline reconstruction companies, the parties agreed that defendant would be permanently enjoined from embedding or causing to be embedded plaintiff’s federally registered marks INSITUFORM and INSITUPIPE (and/or any other marks or terms confusingly similar to them) into the metatag section of the HTML corresponding to any Internet website, including defendant’s National Liner website. Defendant was required to delete all
Euromarket Designs
On June 21, 2000, the court permanently enjoined defendant from using the CRATE & BARREL mark, the “crateandbarrel-ie.com” and “crateandbarrel.ie” domain names, and any other confusingly similar marks or names in the United States and “on any website on the Internet.” The court entered a final judgment on August 3, 2000. Because defendant had actual knowledge of the injunction and final judgment, the court found defendant to be in “flagrant contempt.” The court imposed a $5,000 per day fine for
Paul Wright v. Domain Source
Plaintiff brought suit alleging violations of the ACPA and state claims, and moved for a final judgment by default against defendant, which had never answered the complaint. Finally, the court rejected plaintiff’s request for attorney’s fees simply because defendant defaulted
Simon Property Group L.P. v. mySimon
Third, the survey questions were leading because they "implicitly suggest to the respondent the possibility of a business connection between the [parties'] home pages that the respondent may not have made on his or her own." Finally, regarding plaintiff's concerns about initial-interest confusion, “[a]ny Internet user is familiar with the confusion one confronts with such a welter of search results, but that confusion is the uncertainty about where to go next, not necessarily the confusion that
California Litigation Alert - November 16
For at least two independent reasons, however, there are strong arguments that Proposition 64 applies to cases that are currently pending and not yet final. The reasoning of these cases is that rights that are created by statute do not vest in the holder until they are incorporated into a final judgment; thus, before a final judgment is entered, the repeal of a statute does not deprive a person of any vested right
Microsoft's Conclusions of Law?? Act 3
" In so holding, the Trial Court rendered a very narrow interpretation of the Appeals Court's 1998 decision and stated that the Appeals Court decision pertained to the proper c
