Category Archives: Treatise

Treatise Update – Kane on Trademark Law: A Practitioner’s Guide (Seventh Edition)

Kane on Trademark Law is a comprehensive resource on trademark law that provides court-tested practical suggestions on how to quickly spot potential conflicts and save time on searches, overcome common descriptiveness rejections, update or amend registrations, and prepare witnesses for depositions. It includes detailed lists of cases, full-color illustrations of previously litigated marks, sample forms, and step-by-step checklists.  The treatise is updated regularly to provide in-depth analysis of the most recent developments in the field.

The new release provides expert analysis and practical insights regarding a wide range of trademark issues. Topics of interest include:

  • Trade dress: A color illustration from the Tenth Circuit’s Bimbo Bakeries case has been added to Appendix B. The case is also cited in section 3:2.2[F].
  • Clearance: Revisions discuss the importance of ensuring that the appropriate rights have been secured to use the planned typeface for the brand (see section 4:3.4).
  • Priority: Revisions cover requirements to estab­lish “use analogous to trademark use” (see section 5:1.1).
  • Internet: Revisions cover the Metabirken NFT jury verdict and issues surrounding artificial intelligence tools, such as ChatGPT and Dall-E (see section 11:1.3).
  • Defenses: Revisions include updates to the General Cigar case (see section 12:2.2[D][1]) and Bluetooth case (see section 12:1.4).

The Table of Authorities has also been updated.

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New Edition! Net Leases and Sale-Leasebacks: A Guide to Legal, Tax and Accounting Strategies (2023 Edition)

PLI Press is proud to announce the publication of the new edition of Net Leases and Sale-Leasebacks: A Guide to Legal, Tax and Accounting Strategies.

This pragmatic guide offers invaluable strategies on how to best approach the most common ownership, financing, documentation, taxation, and accounting issues associated with net leases and sale-leaseback transactions.  It provides example lease documents and in-depth coverage around net leases — along with the legal and structuring issues that impact how they are taxed. Author Ken Miller packs the pages with practical guidance and insight gleaned from his storied career helping clients close more than $7 billion of U.S. commercial real estate transactions, primarily involving net-leased properties.

Some of the highlights from the new edition include:

  • Chapter 2: New sections on legal doctrines relevant to net leases, including landlord liability for injuries on the premises (see §2:2.1), tenant estoppel certificates (see §2:2.2), implied covenants to provide tenant with possession (see §2:2.3), and liability of successor landlord for breaches by former landlord (see §2:2.4).
  • Chapter 5:  
    • New discussion of section 467 rental agreement accrual, including assignment of a tenant’s interest in a section 467 rental agreement (see §5:3.8) and early termination of such an agreement (see §5:3.9).
    • New sections on self-employment taxes (see §5:12) and state taxes (§5:13), with a focus on franchise, excise, and similar taxes in Tennessee, Texas, and California.
  • Chapter 6:  New discussion of I.R.C. section 4975 and the “look through” rule as it applies to investments made by benefit plan investors (see §6:1).
  • NEW Appendix F: Section 467 Rental Agreement Accrual Table.
  • Appendix D and Appendix E have also been updated.

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New Title! Employment Discrimination:  A Practitioner’s Deskbook

PLI Press is proud to announce the publication of the new comprehensive resource Employment Discrimination: A Practitioner’s Deskbook.

This book serves as a valuable ref­erence for employment law practitioners and individuals interested in helping their organizations effectively navigate employment discrimina­tion-related investigations, mediations, litigations, and jury trials.  Presented in a straightforward, comprehensible manner, it provides the reader with information relating to the full range of employment discrimination litigation from an active practitioner’s perspective.

Notably, the book covers the following important areas:

  • Responding to employment discrimination and harassment complaints (see Chapter 1)
  • Discovery tools (see Chapter 3)
  • Motion practice before and at trial (see Chapter 5)
  • Jury selection (see Chapter 7)
  • Questioning witnesses (see Chapter 8)
  • Addressing the jury (see Chapter 9)
  • Handling matters before government agencies (see Chapter 10)

Additionally, it answers the following questions:

  1. Does failing to “officially” respond to an unofficial “off-the-record” complaint create risk?
  2. What are the best strategies for conducting effective and thorough investigations remotely?
  3. What are tried and true discovery strategies and the best ways to participate in motion practice?
  4. What should lawyers consider when picking a jury and how do they make compelling arguments at trial? 

We are excited to share this new title with you!

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Treatise Update – Advertising and Commercial Speech: A First Amendment Guide (Second Edition)

Advertising and Commercial Speech: A First Amendment Guide offers a practical examination of how the U.S. Supreme Court’s commercial speech doctrine impacts advertising across nearly 50 industries and professions. The book explores legal standards for defamation, false commercial speech, and disparagement along with developments around advertising for alcohol, financial institutions, professional services, medication, real estate, tobacco, and more.

Among the many topics discussed in this new release are the following:

  • Compelled editorial transparency: New section 12:13 discusses laws passed in Florida and Texas targeting social media platforms’ efforts to combat user-generated disinformation posted on their websites.
  • On-site and off-site signs and billboards: Section 13:2.1[A][7] covers the Seventh Circuit’s ruling regarding whether to apply strict scrutiny or intermediate scrutiny to an ordinance limiting digital displays and off-premises signs.
  • Drugs & drug paraphernalia: Section 14:14 explores a case from the Washington Court of Appeals rejecting a challenge to the state’s advertising restrictions on marketing cannabis products.
  • Regulation of advertising content: Revisions to chapter 14 include:
  1. The ruling of a Florida judge regarding whether part of the state’s Stop W.O.K.E. Act, which forbids companies from undertaking mandatory employee DEI training programs designed to limit or avoid discrimination practices, is unconstitutional (see section 14:16 on fair employment); and
  2. The Eastern District of Arkansas’ final ruling in the Tofurky case involving marketing of plant-based foods (see section 14:20 on food).

In addition, this release includes an updated Table of Cases, Defendant-Plaintiff Table, and Index.

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Treatise Update – Commercial Ground Leases (Fourth Edition)

Commercial Ground Leases is a definitive guide to drafting, negotiating, and finalizing equitable, error-free leasing documents that address the needs of both landlord and tenant. It features adaptable, time-saving agreement language and contains numerous appendices, including forms of letter of intent, leasehold mortgagee protection clauses, intercreditor agreements, fee and leasehold deed of trust provisions, estoppel certificate and guaranty, and a complete ground lease with many alternative clauses.

Highlights of the new release include:

  • Chapter 1: Updated discussion reviews ground lease terms and situations that necessitate their review (see section 1:4.2).
  • Chapter 3: Updated discussion closely examines inflation indexing as provided in Appendix X (see section 3:4.3).
  • Chapter 8: New discussion of Freddie Mac’s Multifamily Seller/Servicer Guide, specifically chapter 30, which sets requirements of ground lease mortgages (see section 8:14).
  • Chapter 16: Updated discussion of exceptions to nonrecourse liability (see section 16:6).
  • Appendix X: Chart 1 attempts to show how several elements of common indexing formulae would have fared over the fifty-year period from 1972 through 2021 using actual CPI data from the U.S. Bureau of Labor Statistics. Chart 2 uses the same historical CPI data, but starts the hypothetical lease term ten years later, in 1982.
  • Chapter 2, Chapter 4, Chapter 5, and Chapter 10 have also been updated with the latest developments.

In addition, the Tables of Authorities and the Index have been updated.

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For more by this treatise’s author, Jerome D. Whalen, check out the article Ground Lease Reappraisals Reconsidered published in the April 2022 issue of the PLI Chronicle.

Treatise Update – Holtzschue on Real Estate Contracts and Closings:  A Step-by-Step Guide to Buying and Selling Real Estate (3rd Edition)

Holtzschue on Real Estate Contracts and Closings is an invaluable resource for attorneys and general practitioners who handle real estate deals as well as an important reference for brokers, title insurers, and inspectors.  It distills more than thirty years of transactional experience into one plain-English treatise that clearly explains governing law and customary industry practices.  The book provides useful legal, technical, and strategic guidance and checklists for sellers’ and purchasers’ attorneys preparing them to execute dispute-free residential deals quickly and easily.

This new release offers the latest information crucial to your practice.  Highlights include:

In addition, the Table of Authorities and Index have been updated to reflect the latest revisions.

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New Edition! Federal Bail and Detention Handbook 2023

PLI Press is proud to announce the publication of the new edition of the Federal Bail and Detention Handbook.

This helpful resource provides on-point answers to all aspects of federal bail and detention law — especially those involving critical provisions of the Bail Reform Act of 1984. Through discussions told from grounded judicial perspectives, the book presents helpful practice pointers when confronting common Bail Reform Act problems. It also showcases an extensive series of forms, sample orders, and sample motions that defense counsel and assistant U.S. attorneys can reference.

Some of the recent developments reflected in this new edition include:

  • Weight of Evidence: Coverage of the United States v. Zhang case in which the Second Circuit ruled on whether the Bail Reform Act provides guidance on the relative weight the court should give the various section 3142(g) factors in deciding questions of release and detention (see Section 4:3).
  • Least Restrictive Possible Conditions: An update on a case arising from the January 6, 2021, invasion of the Capitol about whether the D.C. Circuit Court upheld or reversed the district court’s denial of the defendant’s request to travel abroad for three weeks for an educational opportunity (see Section 5:3).
  • Conditions in Every Bond: New discussion of a Third Circuit ruling regarding whether the “no crimes while on bond” condition prohibits the possession or use of marijuana in a state where marijuana is legal and in a situation in which the defendant has a “medical marijuana” authorization from a physician for its use (see Section 5:4).
  • Detention or Release Pending Competency Examination: New information about a Ninth Circuit case which considered whether a lack of an available bed at an appropriate facility relieves the Attorney General of the duty to attempt to rehabilitate the defendant within a brief period (see Section 14:10).

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Treatise Update –Sack on Defamation: Libel, Slander, and Related Problems (Fifth Edition)

Sack on Defamation—widely cited by U.S. courts including the U.S. Supreme Court, academics, and attorneys—offers strategic guidance for both plaintiffs’ and defense attorneys and fully covers the basic elements of a defamation claim. The treatise pinpoints how to identify practical legal issues such as when “truth” is not a defense, insults and name-calling that cross the line into defamation, how “public disclosure of private facts” becomes actionable, why statements of “opinion” are not protected, and when defamatory communications are privileged. It also integrates coverage of Internet and social media issues.

Highlights of the new release include developments covering the following topics:

  • Statements held to be nonactionable: Discussion of a Delaware case in which the court considered the issue of whether a letter to an employer calling an employee’s outside actions “racist” is constitutionally protected (see section 4:3.5).
  • Standard of conduct: public plaintiffs: The list of “vortex” public figures has been expanded (see section 5:3.5).
  • Standard of conduct: private plaintiffs: Coverage of a case about whether the 2020 amendments to New York’s anti-SLAPP statute are retroactive (see section 6:4).
  • Absolute privilege and government agencies: Summary of an unusual case from Oregon concerning false statements entered into a patient’s medical record by physicians who worked for a public corporation health system (see section 8:2.4[A]).
  • Invited defamation: Spotlights a case from the Second Circuit in which former U.S. Senate candidate and Alabama Supreme Court Justice Roy Moore accused comedian Sacha Baron Cohen of defamation for falsely portraying Moore as a pedophile in a mock interview for Cohen’s television program (see section 8:2.8).

In addition, the Table of Cases, the Defendant-Plaintiff Table, and the Index have been updated.

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New Edition! Healthcare Employment Practice: Policy, Law and Procedure (2023 Edition)

PLI Press is proud to announce the publication of the new edition of Healthcare Employment Practice: Policy, Law and Procedure.

This guidebook presents clearly-written, concise insights into how hospital management teams, healthcare human resources professionals, and the legal practitioners who advise them can navigate the ever-changing regulatory landscape around employment in the healthcare industry.

The treatise’s authors, James T. O’Reilly, Director of the Concentration in Health Services Management at the UC College of Medicine, and Mary Ellen Keegan, former in-house counsel for GE’s Aviation Division who has since negotiated favorably for MDs in disputes with insurance companies and healthcare organizations, offer actionable practices gleaned from their experiences working with physicians and public health regulatory issues.

Featuring sample contractual clauses, this resource discusses how doctors, stakeholders, and their lawyers can leverage astute planning and careful drafting to overcome emerging employment and transactional issues. In addition, the authors include tailored discussions on regulatory and transactional issues unique to physicians, registered nurses, and non-credentialed healthcare employees.

Healthcare Employment Practice includes:

  • Step-by-step, term-by-term guidance on physician employment contracts, with an emphasis on the problems presented by restrictive covenants, and a full sample Physician Employment Agreement (see Chapter 9, Chapter 10, and Appendix B);
  • A fifty-state survey of noncompete statutes and selected case law (see Appendix A – fully updated for 2023);
  • Labor and employment law as it affects healthcare industry employees in the areas of Collective Bargaining and Overtime Pay (see Chapter 14 and Chapter 19), Strikes and Lockouts (see Chapter 17), Safety Rules (see Chapter 20), and Conflict Resolution (see Chapter 21);
  • Issues presented by telemedicine (see Chapter 27);
  • Stark and anti-kickback law compliance (see Chapter 26);
  • Employment discrimination in healthcare: physician whistleblower, discrimi­nation, harassment, and retaliation claims (see Chapter 22).

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Treatise Update – Patent Litigation (Third Edition)

Patent Litigation (Third Edition) enhances every patent litigator’s ability to prevail at trial while helping to cut the costs and complexity of litigation. Written by leading patent litigators, the treatise provides guidance on various infringement actions and their respective burdens of proof.  It also offers pointers on conducting comprehensive pre-suit investigations; developing potent case themes; assembling strong litigation teams; developing smart litigation budgets; maximizing the persuasive impact of documents, exhibits, and witnesses; and making savvy use of computers, jury consultants, and litigation support vendors.

The new release covers many important developments, such as:

  • Corporate disclosures under Rule 7.1 and the hotly debated issue of whether recent court-imposed disclosure requirements are justified or permissible (see new section 3:7).
  • Two cases from district courts on the standard for assessing com­munications between the buyer and seller and licensor/licensee of patent rights made before the transactions closed (see section 5:4.2).
  • Case law from the federal circuit regarding an overly broad in­junctive relief in the design patent context (see section 10:5.1).
  • Case law involving Moderna’s COVID-19 vaccine and Moderna’s claim that it is shielded from an infringement lawsuit in district court because of its agreement to supply the vaccine to the federal government (see section 14:2.2).
  • The PTAB’s clarification on its guidance for discretionary denial of IPR due to the advanced state of a parallel proceeding under Fintiv and the implications for the global defense strategy of re­spondents in ITC proceedings (see sections 14:4.9 and 15:3).
  • Circulation judge pool review, the PTO’s new internal procedure designed to improve overall quality of PTAB final written deci­sions (see new section 15:8.3).

For additional recent developments in patent litigation, check out this recent PLI Chronicle article, Patent Antibody Case Law Continues to Mature.

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