Category Archives: Litigation

Treatise Update – Sinclair on Federal Civil Practice (Fifth Edition)

Sinclair on Federal Civil Practice gives quick and authoritative answers for issues arising in federal civil litigation and serves as a guide to the principal rules and tactical considerations guiding lawsuits in the federal courts. This two-volume treatise explains the layout of the court system and the nature of its key personnel, jurisdiction and venue principles, and the sequence of litigation. It also provides insight into the rationale of the rules by citing the key interpretive cases and offering court-tested practice tips.

Highlights of the new release include:

Chapter 15: Significant expansion of discussion regarding jury instructions, including the respective roles of the judge and counsel; due process limits on jury discretion; the plain error standard; objections to instructions; timing of instructions, requests and actions on requests; jury instruction drafting principles; and review of preserved and unpreserved instruction errors.

Chapter 18: In-depth analysis of the harmless error rule, including of Supreme Court jurisprudence on the issue and the Court’s differentiation between three classes of errors that can have an adverse impact on a litigant’s substantial rights during trial: (1) non-constitutional errors; (2) “trial errors”; and (3) “structural defects.”

Chapter 19: Discussion of recent amendments to Rule 3 of the Federal Rules of Appellate Procedure addressing how an appeal of right is taken, and specifically affecting the content of the notice of appeal that is required, with important clarifications regarding the scope of the judgment or appealable order designated in the notice of appeal.

In addition, numerous recent law review articles are added to the Additional Resources section of many chapters, and the chronological circuit-by-circuit Compendium of Recent Cases (Vol. 1 & Vol. 2) is updated.

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Treatise Update – Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition)

Fragomen on Immigration Fundamentals provides in-depth coverage of the rules, policies, and procedures related to key facets of immigration law in the United States. Throughout, the authors supplement analysis of recent cases, policies, and rules with practical guidance for both general practitioners and experienced immigration attorneys.

Some of the important recent developments discussed in this release include:

PERM Recruitment: §2:2.4[D][6] discusses how an August 2021 DOJ settlement agreement in a U.S. worker discrimination lawsuit against Facebook impacts government enforcement of the PERM program.
COVID-19: §2:10.3[A][3] and §3:4.1[C] reveal a new COVID-19 related requirement that green card applicants must satisfy in order to be deemed eligible for permanent residence. The new requirement is included in the routine medical examinations for both adjustment of status applicants in the United States and immigrant visa applicants applying at U.S. embassies and consulates abroad.
Work authorization for spouses: §5:6.3[B] and 10:3.4[N] cover a November 2021 announcement by the USCIS regarding the work authorization process for certain E, L-2, and H-4 spouses in response to a lawsuit that challenged the lengthy processing delays of EAD applications for dependents.
T nonimmigrants: In October 2021, USCIS issued comprehensive guidance in its Policy Manual regarding the adjudication of T nonimmigrant status applications for victims of severe forms of trafficking in persons (see §5:28.1[A]).
H-2B changing employers: §10:3.4[M] explains how a provision of a January 2022 DHS rule providing a cap increase for FY 2022 gives greater job flexibility to H-2B workers already in the United States.

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New Edition! ERISA: Department of Labor Investigations and Litigation

PLI Press is proud to announce the publication of the new edition of ERISA: Department of Labor Investigations and Litigation.

This book is both a reference guide to the Department of Labor’s regulations and informal guidance and a resource for the Department’s views on ERISA fiduciary responsibilities as expressed in litigation. As much of the Department’s enforcement and litigation has focused on pension plans, so does this book, along with an overview of health plan investigations, enforcement, and litigation. It also discusses the Department’s criminal enforcement program and the impact of the fiduciary rule on the financial services industry and related litigation.

Some of the changes to the 2022 edition include:

Missing participant investigations: A new section discusses EBSA’s Terminated Vested Participant or missing participant national project and the Fiduciary Investigations Program (see §6:1.6[B]).
Mental health parity enforcement and Nondiscriminatory wellness programs: New sections discuss a) federal statutes that require parity in employer-sponsored group health plans’ coverage for mental health and substance use disorders with coverage for medical conditions (see §7:4); and b) an area of EBSA’s enforcement activities focused on compliance with the Department’s regulations for nondiscriminatory wellness programs (see §7:7).
Dudenhoeffer “more harm than good” standard: An expanded discussion is provided of Retirement Plans Committee of IBM v. Jander, a case involving whether a prudent ESOP fiduciary could conclude that disclosing confidential information when disclosure is not required by the securities laws would do “more harm than good” (see §10:3.2[A]).
ESG and ETI investments: A new section discusses the evolution of the Department’s approach to whether non-pecuniary factors can be considered in making investment decisions for pension plans (see §15:1.3).

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

Kane on Trademark Law is a comprehensive resource on trademark law and tactics which 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 illustrative 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:

Registration; grounds for rejection: Revisions include updates to the opposition proceeding involving the RAPUNZEL mark currently pending before the Trademark Trial & Appeal Board (see § 6:5.2).
Fraud: Revisions include discussion of Chutter, Inc. v. Great Management Group, LLC and Chutter, Inc. v. Great Concepts, LLC on the standard for fraud post-Bose (see § 7:2.5).
Limits to incontestability: Revisions include updated Eleventh Circuit case law on the relevance of incontestability to the infringement analysis (see § 7:3.4[C]).
Internet: Revisions include a new discussion of the Metaverse and cases involving non-fungible tokens (NFTs) (see § 11:1.3).
Rights of publicity and privacy: Section 14:2.1 takes note of NCAA name, image, and likeness rule changes per a recent Supreme Court case and NCAA policy changes.
TTAB proceedings: New Federal Circuit cases have been added to the discussion on standing in section 19:2.2[A].

The Table of Authorities and the Index have also been updated.

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New Title! Cyber Insurance Claims, Case Law, and Risk Management

PLI Press is proud to announce the publication of the new treatise Cyber Insurance Claims, Case Law, and Risk Management.

This treatise provides comprehensive analysis of the ever-changing and escalating cyber claim landscape as it relates to insurance coverage and overall risk management. It features in-depth case and insurance policy analysis and discussion of loss mitigation steps, along with chapter summaries that can serve as quick reference checklists for practitioners. A valuable resource for law firms, breach response counsel and any risk management professional, this book guides readers by:

Providing tools for assessing cyber risk profiles and liability exposures, understanding insurance coverage and recognizing frequent pressure points in the scope of such insurance coverage
Improving loss prevention and loss mitigation efforts to reduce cyber exposures and the threat of legal action against senior management
Providing a reference guide to key insurance policy insuring agreements and protections
Identifying problematic issues encountered by others in pursuing coverage
Providing analysis of legal arguments and outcomes regarding claims for coverage
Identifying issues likely to be encountered when addressing cyber losses and pursuing insurance recovery

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Treatise Update – Derivatives Deskbook: Close-Out Netting, Risk Mitigation, Litigation (Second Edition)

Derivatives Deskbook: Close-Out Netting, Risk Mitigation, Litigation is a comprehensive resource for all users of swap agreements and derivatives, from financial institutions to corporate end-users. The treatise defines the key terminology and identifies the major players, discusses the full range of required documentation, highlights best practices for the legal risk management of derivatives, and includes numerous practice-tested legal forms. Most importantly, it examines all significant, and often difficult-to-find, derivative transactions litigation cases from leading jurisdictions worldwide.

Highlights of this new release include:

Expanded section 1:1 explains the repercussions of the Texas energy crisis that occurred in February 2021, particularly with regard to how it relates to corporate end-users of derivative transactions.
Revised section 6:6.1 explores how additional termination events that are tied to the financial health of a counterparty could be specified conditions similar to having events of default as specified conditions.
Completely revised Chapter 9 examines the Dodd-Frank Act, EMIR, and MiFid II, and their implications on the OTC derivatives market in light of the 2020 revisions to Commodities Futures Trading Commission regulations.

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Treatise Update – Electronic Discovery Deskbook (Third Edition)

Electronic Discovery Deskbook guides attorneys through the legal, procedural, and technical challenges of e-discovery while reducing its costs and risks. The Deskbook aids in developing cost-effective, legally defensible information and litigation management policies and procedures for the identification, preservation, collection, preparation, and production of discoverable, electronically-stored information (ESI). It offers a bounty of useful tips and alerts readers to vital trends, focusing on new technologies, new compliance demands, and new legal vulnerabilities for counsel.

Updated chapters reflect the latest cases, legislation, guidance, and commentary pertaining to electronic discovery. Highlights of the new release include:

Mobile and wearable technologies: The new §13:2.4 discusses litigation on the issue of whether, for purposes of ESI, an organization has “control” over devices used by its employees. It provides guidance on how employers may avoid or limit the need to collect data from such devices, regardless of whether they are provided by the employer or the employee.
International Laws: Chapter 14 International Issues includes the most recent developments outside of the United States pertaining to electronic discovery.

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

Kane on Trademark Law is a comprehensive resource on trademark law and tactics 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 illustrative 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:

Trademark selection: Highlights comprise cases from the Second Circuit and the TTAB on color protection (see Sulzer Mixpac AG v. A&N Trading Co. in § 2:10.2[B] and In re Medline Industries, Inc. in § 2:10.4 and App. B, Illustration 67).
Trademark registration: Revisions include an update to the Booking.com case regarding the expenses that an appealing party in an ex parte appeal must pay when appealing to the district court (see § 6:6.1[B]) and a precedential case from the TTAB on the registrability of a mark that includes a depiction of the U.S. flag (In re Alabama Tourism Department) (see § 6:5.2).
Trademark use and priority: For an update on the PRETZEL CRISPS dispute and a decision from the district court on issues of genericness and consumer confusion, see § 5:3.3.
Initial interest confusion: Consult § 8:1.1[A] for The Eighth Circuit’s blessing of the initial interest confusion doctrine in Select Comfort.
Infringement: See § 8:3.4 for an update to a Second Circuit case on landlord liability for a tenant’s counterfeiting (Omega SA v. 375 Canal, LLC).
Defenses to infringement: There is a new section on upcycling and repairs with citations to the Nike Satan shoes case and the Hamilton watch case (see § 12:1.5 and App. B, Illustration 68).
Costs: For a discussion about the significant costs of losing on appeal, see § 18:7.
Fraud: Go to §§12:2.6[G] and 19:2.2[B] for the TTAB’s ruling in a precedential decision about whether conduct amounting to reckless disregard constitutes fraud on the PTO as a matter of law.

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Treatise Update – Securities Investigations: Internal, Civil and Criminal

Securities Investigations: Internal, Civil and Criminal (Second Edition) provides the legal knowledge and practical strategies necessary to deal effectively with government and internal investigations. The new release of the treatise extensively updates it with the most recent developments governing internal, civil, and criminal investigations involving potential violation of the securities laws. It also shares nuances and practical tips from experts in such investigations.

Key developments covered in the new release include:

“Property” and “Personal Benefit” under the Securities Statutes. Due to the U.S. Supreme Court vacating and remanding United States v. Blaszczak to the Second Circuit in light of Kelly v. United States, the question remains whether confidential information constitutes “property” under the securities statutes and how that may impact the holding that there is no personal benefit requirement in Title 18 cases. See Chapter 2 and Chapter 3 for discussion.

Cross-Border Regulation of the Financial Markets. See Chapter 13 for numerous new case summaries of SEC cross-border enforcement actions on insider trading, securities fraud, market manipulation, and the Foreign Corrupt Practices Act (FCPA).

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Treatise Update – Sinclair on Federal Civil Practice (Fifth Edition)

Highlights of the new release include:

Updates to the Additional Resources and Compendium of Recent Cases (Vol. 1 & Vol. 2): Numerous recent law review articles are added to the Additional Resources section at the end of each chapter, and the chronological circuit-by-circuit Compendium of Recent Cases is updated for each volume.

Section 2:8.1[D] Personal jurisdiction / minimum contacts: Discusses a 2021 Supreme Court decision on the issue of whether personal jurisdiction was appropriately exercised over a vehicle manufacturer incorporated in Delaware and headquartered in Michigan for claims that arose from severe injuries and death suffered as a result of accidents in Montana and Minnesota. The vehicles were previously owned, purchased by the plaintiffs at subsequent resales, and brought into Montana and Minnesota from other states.

New section 8:2.4 Standard of review for Rule 12 motions: A new section discusses the standards of review for a motion to dismiss under Rule 12(b)(6) and a motion for judgment on the pleadings under Rule 12(c). Federal appellate courts disagree as to whether a different standard of review applies to a motion to dismiss brought under Rule 12(b)(1), which challenges the subject matter jurisdiction to hear the claims at issue.

New section 8:2.8 Trial motions: A new section analyzes the motion for judgment on partial findings pursuant to Rule 52(c) and the motion for judgment as a matter of law pursuant to Rule 50(a) or 50(b). While both motions are aimed at expediting trials, they have distinct differences that litigators need to consider, including the type of proceeding (jury or non-jury) in which the motion is available and the applicable standard of review.

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