Legal Research

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Patent and Trademark Law
Wednesday, March 25, 2009
By Robert C. Scheinfeld and Parker H. Bagley

"Robert C. Scheinfeld, a partner at Baker Botts, and Parker H. Bagley, a partner at Goodwin Procter, write that the recent decision by the Federal Circuit in Kyocera Wireless Corp. v. Int'l Trade Comm'n changed the accepted wisdom regarding the commission's power to issue broad injunctive relief excluding infringing articles from importation into the United States. Although the decision's full ramifications are not readily apparent from its holding, the most significant effect has been the commission's reevaluation of its previously established analytical framework and requirements for awarding remedies. Thus, effectively managing litigations in the ITC will require an understanding of the ramifications of Kyocera and the ability to craft litigation strategies for responding to this changed - and still very unpredictable - landscape."

Second Circuit Review
Wednesday, March 25, 2009
By Martin Flumenbaum and Brad S. Karp

"Martin Flumenbaum and Brad S. Karp, partners at Paul, Weiss, Rifkind, Wharton & Garrison, discuss In re: American Express Merchants' Litigation, a case in which the U.S. Court of Appeals for the Second Circuit addressed for the first time the enforcement of a mandatory arbitration clause in a commercial contract that also contains a class action waiver. The court held, they note, that the class action waiver was unenforceable because the plaintiffs had demonstrated that their antitrust claims could only effectively be pursued through the aggregation of individual claims, either in class action litigation or in class arbitration."

OUTSIDE COUNSEL:

Courts Differ on Subpoena Power Of Arbitrators Over Non-Parties
Wednesday, March 25, 2009
By Stefan W. Engelhardt and Michelle L. Gomez

"Stefan W. Engelhardt, a partner at Morrison & Foerster, and Michelle L. Gomez, an associate at the firm, write that for the past decade, practitioners within the Fourth and Eighth circuits have had some ability to compel non-party document discovery in advance of an arbitration hearing based on circuit case law, while practitioners within the Third Circuit have lacked such an option because that circuit court has ruled that arbitrators have no authority to compel pre-hearing document discovery from a non-party. On Nov. 25, 2008, they say, the U.S. Court of Appeals for the Second Circuit staked its claim in the ongoing debate. "

REAL ESTATE TRENDS:

Free With Registration: Zoning and Land Use Planning
Wednesday, March 25, 2009
By Anthony S. Guardino

" Anthony S. Guardino, a parner at Farrell Fritz, writes that New York law has long provided that a decision of a zoning board or other administrative agency that neither adhered to its own prior precedent nor indicated its reasons for reaching a different result on essentially the same facts was arbitrary and capricious and mandated reversal - even if there was otherwise evidence in the record sufficient to support the determination."

TECHNOLOGY:

'Hot News' Tort Against Online Headline Service Is Upheld
Tuesday, March 24, 2009
By Stephen M. Kramarsky

" Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, writes: Copyright must preserve and protect economic incentives for creativity while at the same time avoiding any chilling effect on the creation of new works and forms of expression. This is a fine balance and when the courts address it, especially in new media contexts such as the Internet, they must be particularly careful of any possible unintended consequences. A recent decision from the Southern District of New York - though carefully reasoned and largely unimpeachable under current Second Circuit law - demonstrates some of those issues."