Due to the large-scale shutdowns triggered by the Coronavirus pandemic (“COVID-19”), many businesses were unable to operate fully, or not at all. Litigants across the country have sought to be relieved of their obligations under contracts as a result of the pandemic-related disruptions, under legal theories including impossibility, frustration of purpose, and force majeure. As recently decided cases demonstrate, proponents of these theories have faced uphill battles.

Continue Reading Mission (Im)possible: Recent Cases Hold That Pandemic-Related Disruptions Do Not Relieve Contractual Performance

Last month, former attorney Michael Avenatti was sentenced to four years in prison for stealing about $300,000 from his client, Stormy Daniels. But Mr. Avenatti was already serving a thirty-month prison sentence for attempting to extort a “settlement” from Nike.

Continue Reading Don’t Go to Prison for Extortion: Lessons from Michael Avenatti

For better or worse, trademark infringement claims enjoy relaxed standing requirements which enable plaintiffs to move quickly to quash would-be infringers. These requirements are at their lowest ebb when parties seek declaratory judgments. This results in some creative uses of the declaratory judgment claim.

Continue Reading Sexy Little Claims: Declaratory Judgments in Trademark Infringement Claims

Recent New York legislation will afford a class of sexual abuse victims the opportunity to sue their abusers, where they previously would have been time-barred. On May 24, 2022, New York Governor Kathy Hochul signed into law the Adult Survivors Act (“ASA”) (S.66A/A.648A), which creates a one-year lookback window for alleged survivors of sexual assault that occurred when they were over the age of 18 to sue their alleged abusers regardless of when the abuse occurred. The one-year window will begin six months from signing – on November 24, 2022 and will close on November 23, 2023. In 2019, New York extended the statute of limitations to 20 years for adults filing civil lawsuits for  certain enumerated sex offenses. However, that legislation only affected new cases and was not retroactive. In contrast, the ASA permits individuals who were over the age of 18 when any alleged abuse occurred to sue for civil damages regardless of the statute of limitations.

Continue Reading The Time to Prepare for the Litigation Following New York’s Enactment of the Adult Survivors Act

The Federal Trade Commission (“FTC”) recently announced its long awaited proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides were first enacted in 1980 and are intended to help businesses ensure that their endorsement and testimonial advertising conforms with Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce,” including false advertising. Among the proposed changes to the Endorsement Guides, are those related to social media platforms and their users, deceptive endorsements by online “influencers,” businesses’ use of consumer reviews, and the impact of advertising on children.

Continue Reading FTC’s Proposed Changes to Endorsement Guides: Social Media, “Influencers,” Consumer Reviews, and the Impact of Advertising on Children

A new Ohio law substantially changes the landscape for real property tax valuation challenges in the state. In general, it substantially curtails school districts’ rights to initiate and appeal property tax valuation challenges. Governor DeWine signed the bill on April 21, 2022. It will become effective on July 19, 2022, and will affect valuation complaints that relate to tax year 2022 valuations.

Continue Reading Ohio Significantly Changes Real Property Tax Valuation Procedures, Curtailing Local Governments’ Abilities to Initiate, Appeal, and Settle Tax Valuation Cases

On April 26, 2022 the Supreme Court of New Jersey heard arguments about whether New Jersey should retain the judicially created “new business rule”. Since 1936 the rule has held that in the context of calculating damages “prospective profits of a new business are considered too remote and speculative to meet the legal standard of reasonable certainty.” RSB Lab. Servs., Inc. v. BSI, Corp. This case is interesting for aggrieved business litigants as well as interested observers of the appellate process.

Continue Reading An Outlier No More?: New Jersey Supreme Court Considers Overturning “New Business Rule”

Recently I was going back and forth with a colleague about training programs for our developing lawyers. This colleague, a respected friend, looked at the list I proudly provided of the various advocacy, writing, presentation and positioning lessons filling the educational schedule, and responded with the pith of perception “Not a word about listening.” I immediately saw the gap absent in my perception only moments before. And, I knew the truth of which Oliver Wendell Holmes (not the judge, but the judge’s father) wrote in Chapter X of The Poet At The Breakfast Table (1872), when he said “It is the province of knowledge to speak. And it is the privilege of wisdom to listen.” What a great lesson for lawyers, especially trial lawyers, to remember.

Continue Reading It Is the Privilege of Wisdom to Listen: Remembering an Underappreciated Legal Skill

Interesting question: Can someone trademark another person’s name without that person’s consent? The answer to that is usually “no,” but, hey, we would not be the first people to say that we live in interesting times. And if we said that, we would not be infringing on anyone’s rights. That aside, the answer to the first question this week is “yes,” at least when the person is a public figure, and the trademark is viewed as an exercise of free speech critical of that public figure.

Continue Reading Does TRUMP Trademark Ruling Create First Amendment Exception That Is TOO BIG or TOO SMALL?

Former Alaska Governor and Vice Presidential candidate Sarah Palin recently lost the trial of her defamation case against The New York Times. Given the complexity of the legal issues and the unusual events at trial, a messy appeal is sure to follow. But if the appellate courts can see past the procedural novelties, Palin’s case could become a vehicle for revisiting the seminal case of New York Times v. Sullivan.

Continue Reading The Sarah Palin v. New York Times Appeal Will Be a Hot Mess