Commercial Litigation Update

On December 1, 2023, Federal Rule of Evidence (“FRE”) 702 will be amended, following the Supreme Court’s adoption of the amendment earlier this year. FRE 702 governs the admission of expert testimony in the federal courts, and has been the subject of much case law interpreting it already. Understanding the changes to FRE 702, and the impetus behind those changes, will be critical for litigants in federal court to ensure that the expert testimony they present in support of their claims or defenses remains admissible.

As adopted by the Supreme Court and submitted to Congress, the ...

Shareholders who sue derivatively on behalf of a corporation are often faced with counterclaims against them as individuals. The issue of whether such counterclaims are properly interposed against a shareholder in their individual capacity is not typically a heavily contested issue in New York. However, this may soon change as a result of a recent decision in the case of Jean-Pascal Simon v. Francinvest, S.A., et. al., 2023 N.Y. Slip. Op. 32422[U] (Sup. Ct. N.Y. Co. July 7, 2023), where the court was confronted with arguments about the feasibility of such countersuits and ...

In a previous blog, we discussed the Federal Trade Commission’s (“FTC”) proposed changes to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Endorsement Guides”). The Endorsement Guides 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. We specifically highlighted the FTC’s proposed changes 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. Now, approximately one year later, and after receiving and considering public comments on its proposed changes, the FTC has issued its final rule adopting revisions to the Endorsement Guides. See Guides Concerning the Use of Endorsements and Testimonials in Advertising, 88 Fed. Reg. 48092 (July 26, 2023) (to be codified at 16 C.F.R. pt. 255). In issuing its final revised Endorsement Guides, the FTC stated that the changes are intended to “reflect the ways advertisers now reach consumers to promote products and services, including through social media and reviews.” We summarize below the FTC’s final revisions to the same sections of the Endorsement Guides covered in our earlier blog.

Mistakes sometimes happen. One of the most serious mistakes attorneys can make is to inadvertently disclose privileged or otherwise protected information during discovery. This may sound easy, but in the electronic era, where electronic documents with metadata are the norm, this creates special difficulties.

Summer 2023 is heating up to be the Summer of Barbie. Last week Mattel filed a Notice of Opposition against Burberry’s proposed “BRBY” trademark with the Trademark Trial and Appeal Board asserting likelihood of confusion with Mattel’s Barbie brand. It asserts that Mattel will be damaged if Burberry is permitted to register “BRBY” because the mark is “highly similar” in “appearance, sound, and commercial impression.” Mattel has said that “when spoken aloud, the marks are phonetically identical.” It also asserts that a BRBY mark on clothing, bags or accessories would dilute the Barbie brand and consumers may be fooled into thinking the mark is a “subset or expansion” of Barbie. 

In Mallory v. Norfolk Southern Railway Co., 600 U.S. __ (June 27, 2023), the United States Supreme Court upheld a Pennsylvania law that enables a plaintiff to show general personal jurisdiction over an out-of-state corporation based only upon that company’s registering to do business in Pennsylvania. 42 Pa. Const. Stat. § 5301(a)(2). It is well established that general personal jurisdiction permits a court to adjudicate any and all claims against an out-of-state corporate defendant only where a plaintiff demonstrates that the defendant has substantial contacts with the forum state. The majority decision, however, rules that a plaintiff need not engage in a contacts analysis where a state, such as Pennsylvania, has a corporate registration law deeming corporate registration as consent to jurisdiction. Other states will now likely emulate Pennsylvania by adopting similar statutory provisions authorizing general personal jurisdiction over out-of-state corporations registered to do business in those states even where there has been no showing of substantial state contacts.

On January 9, 2023, the Supreme Court held oral arguments on a significant issue regarding the application of the attorney-client privilege in a case called In re Grand Jury, Docket No. 21-1397, 598 U.S. ___ (2023). In re Grand Jury was appealed to the Supreme Court from the Ninth Circuit. The issue before the Supreme Court was which test should apply to a “dual-purpose” communication. A dual-purpose communication occurs when a communication may have a business purpose, but also asks for legal advice. This type of communication is typical between lawyers providing both legal and business advice to employers, and it is very common for lawyers in an in-house counsel role to frequently have dual-purpose communications with their employers. Although the Supreme Court decided to dismiss the writ of certiorari after oral arguments occurred in this case, it is important to understand why this test would have been significant to all different types of attorneys, especially because it is becoming increasingly more common for attorneys to wear “two hats” by providing both business advice and legal advice regularly to clients.

Nearly a decade ago, the New Jersey Supreme Court in Atalese v. U.S. Legal Services Group, L.P., held that for an arbitration agreement to be enforceable, it had to contain an explicit waiver of the parties’ right to seek access to court. According to a recent New Jersey Appellate Division opinion, that long-standing rule has been qualified to reflect the relative sophistication of the parties involved in the dispute. In County of Passaic v. Horizon Healthcare Services, Inc. d/b/a Horizon Blue Cross Blue Shield of New Jersey, the Appellate Division considered a contract between the County and the entity that managed the County’s self-funded benefits plan. Following the County’s institution of a breach of contract lawsuit, Horizon successfully moved to compel arbitration based upon a clause in the parties’ agreement that required “[i]n the event of any dispute between the parties to this Agreement arising under its terms, the parties shall submit the dispute to binding arbitration under the commercial rules of the American Arbitration Association.” The clause in question contained no explicit waiver of court access. Consequently, the County appealed the decision, arguing for that very reason, the arbitration clause was unenforceable.

Jack Daniel’s Property, Inc. has successfully petitioned the U.S. Supreme Court to hear its dispute against VIP Products LLC, a dog-toy maker known for its playful products that mimic various beverage brands. Jack Daniel’s argues that the 3x10 inch “Bad Spaniels” vinyl dog toy portraying a parody version of the well-known whiskey label violates its federal trademark rights and tarnishes the Jack Daniel’s brand. 

A knock on the door. A parcel left with reception. An envelope lying on your front step. When you open it, you read the first words, “a lawsuit has been filed against you.” You or your company are being sued. What do you do? Here are the basic first steps you should take upon receiving a complaint.

While monitoring your work email, you receive a message that puts a pit in your stomach. Your company’s General Counsel has sent you a “Litigation Hold Notice,” advising you that your emails, documents, and communications must be preserved. What does this mean? What do you need to do? Here are the basics on litigation hold notices, and a few simple tips on how to proceed once you receive one.

Public figures are fighting back against fake news.

In the most recent headline from the world of celebrity defamation cases, E. Jean Carroll is suing former President Trump for statements he made after she accused him of sexual assault. In a 2019 book and excerpt in New York magazine, Carroll, a longtime advice columnist for Elle magazine, accused Trump of sexual assault in the mid-1990s. Trump responded that Carroll was “totally lying” and not his “type.” Carroll sued Trump for defamation, claiming his statements had harmed her reputation. But Carroll—like all public figure defamation plaintiffs—has an uphill battle before her. To succeed, Carroll will have to prove that Trump’s statements were false, and—because Carroll is a public figure—she will also have to show that Trump acted with “actual malice.” The actual malice standard often proves to be too high a threshold for most public figures to cross, and most cases are lost on that prong—regardless of whether the statement was false. In fact, Johnny Depp was one of the few public figures in recent years to win a defamation suit.

Recent legislation signed into law by President Biden on September 16, 2022 abolishes the statute of limitations for over a dozen federal civil causes of action relating to child sex abuse, continuing the trend throughout the country to reform statutes of limitations relating to child sex abuse. Known as the “Eliminating Limits to Justice for Child Sex Abuse Victims Act of 2022” (Public Law No. 117-176), the Act abolishes the previous ten-year statute of limitations to commence a civil action for any person who, as a minor, was the victim of any of the offenses enumerated in the Act, including forced labor, sex trafficking of children, sexual abuse of a minor, sexual exploitation of children, and transportation of minors to engage in sexual conduct. The Act became effective on September 16, 2022.

In a brush-back pitch to DOJ opioid initiatives, the U.S. Supreme Court this past June issued an important decision clarifying the mental state the government must establish to convict a licensed medical professional of illegal drug distribution under the federal Controlled Substances Act (“CSA”). No longer can a doctor be convicted of such a crime based on objectively unreasonable prescribing practices alone. The government now must show that the medical professional subjectively, knowingly, and intentionally prescribed a controlled substance with no legitimate medical purpose. While unlikely to materially impact the number of DOJ opioid prosecutions, the case will no doubt inform charging decisions in marginal cases and will support important defense arguments at trial.

The last two years have provided legal professionals with a crash course in the remote practice of law. Attorneys and judges have been forced to navigate COVID-19 protocols and adapt to the rapidly changing legal landscape in the digital age. While the pandemic created an abundance of new technological challenges, it also impacted one of the oldest standards in our judicial system—service of process.

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.

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.

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.

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.

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.

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.

Last week, FINRA published its 2022 Report on its Examination and Risk Monitoring Program (the “Report”), identifying key areas of focus for broker-dealer exams this year. The Report contains many of the same areas of focus as last year’s report, including anti-money laundering, cybersecurity, Reg BI and Form CRS, communications with the public, best execution and segregation of customer funds. Although the Report again identifies these general areas, it identifies new concerns and recent examination findings in those areas. In an effort to be user friendly, the Report highlights that new content in bold and identifies new areas for 2022. A key takeaway from the Report is the continued challenges posed by technology.

Appellate aficionados have undoubtedly heard the news that the distinctively Jerseyan Courier New 12-point font may be on its way out of New Jersey appellate practice. On January 28, 2022, the Supreme Court Rules Committees published proposed amendments to the New Jersey Court Rules, including a number of appellate rules (such as required font). Appellate practitioners should be aware of these potential changes that may be adopted for the New Jersey Appellate Division and Supreme Court.

The Paycheck Protection Program (“PPP”) was critical in helping small businesses stay afloat amidst the COVID-19 pandemic and resultant government restrictions on all manner of commerce. Now, as more businesses have applied for PPP loan forgiveness, some will receive notice that the United States Small Business Administration (“SBA”) is denying forgiveness of those loans. Small businesses whose PPP loans are denied will receive a letter that looks like this.

In a recent Press Release dated December 15, 2021, the Office of the Attorney General for the State of New Jersey (the “N.J. Attorney General’s Office”) announced the settlement, via consent order, of alleged HIPAA violations involving three, New Jersey based cancer treatment providers, In the Matter of RCCA MSO LLC, Regional Cancer Care Associates LLC, and RCCA MD LLC. Two key takeaways from this matter are that New Jersey based health care providers need to be wary of state as well federal authorities when it comes to information security and related policies and warrant substantial investments in cyber security.

Breathless headlines warn of the “Great Resignation” or a “Resignation Apocalypse” that will soon empty cubicles all around the nation. Exaggerated as these reports may be, there is a kernel of truth to these warnings, and they should impact the way lawyers and their clients view depositions.

For decades, the median number of years that a salaried employee stayed with a single employer remained relatively stable at about four years. But this number is expected to decline in the years ahead.

We recently participated in what the New Jersey Law Journal called the “first complex civil jury trial to be conducted in person since the COVID-19 pandemic.” Although the case settled shortly after opening statements, this experience taught us that New Jersey courts are ready to try complex civil cases safely and responsibly with new COVID protocols that may force trial attorneys to depart from their usual practices. We published an article in the New Jersey Law Journal about this experience that may be of interest to our readers.

When hospitals and doctors treat patients who are injured in car accidents, the health care providers reasonably expect that their rights to be compensated for the care they provide will not be conditioned upon their willingness to participate in their patients’ personal injury lawsuits against allegedly negligent drivers. A common pleas Court in Ohio applied this sensible reasoning in a recent decision, dismissing a car-accident plaintiff’s attempts to force the hospital that treated her to participate in her lawsuit against the driver who allegedly caused the injuries ...