Category Archives: Litigation

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)

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:

  • 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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Treatise Update – Trade Secrets: A Practitioner’s Guide (Second Edition)

Trade Secrets: A Practitioner’s Guide  discusses all aspects of protecting trade secrets.  It provides sample forms, checklists, and trial testimony from actual cases.  The treatise compares and contrasts trade-secret protection with other forms of intellectual property such as copyright, patents, and trademarks.

This release contains new discussions of the law of trade secrets and related topics. Highlights include:

Chapter 4

  • Secrecy ended by disclosure: Updates to § 4:9.3 include coverage of Attia v. Google LLC, where the Ninth Circuit affirmed dismissal of a claim under the DTSA, finding that disclosure of the subject matter of a trade secret in a published patent application vitiated its trade secret status.
  • Security measures: Updates to § 4:13 include coverage of Inteliclear, LLC v. ETC Global Holdings, Inc., where the Ninth Circuit reversed summary judgment for the defendant in a trade-secret misappropriation case, disagreeing with the district court’s conclusion that insufficient secrecy was pleaded.

Chapter 5

  • Ownership: New § 5:11 focuses on Advanced Fluid Systems, Inc. v. Huber, where the Third Circuit ruled that a contractor on a NASA project that possessed trade secrets but did not own them could bring a misappropriation claim. (Other issues in this case are covered in § 4:13 on security measures and § 13:3.7 on punitive damages.)

Chapter 6

  • Wrongful means: New § 6:12 examines Compulife Software Inc. v. Newman, a case involving a misappropriation-by-use claim in which the Eleventh Circuit ruled, among other things, that a magistrate judge had erred in reasoning that the public availability of quotes on the plaintiff’s site automatically precluded a finding that scraping those quotes constituted misappropriation.

Chapter 10

  • Identifying trade secrets with specificity: Updates to § 10:9.1 include discussion of TLS Management and Marketing Services, LLC v. Rodriguez-Toledo, an appellate decision addressing the plaintiff’s burden of establishing that a trade secret exists and the enforceability of nondisclosure agreements.

Chapter 13

  • Unjust enrichment: Updates to chapter 13 include discussion of Epic Systems Corp. v. Tata Consultancy Services Ltd., where the court of appeals affirmed an award of unjust enrichment damages (see § 13:3.5) and found that the punitive damages award was justified by the evidence but unconstitutional in amount (see § 13:3.7).

Table Authorities and Index

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New Treatise! Principles of Appellate Litigation

PLI Press is proud to announce the publication of Principles of Appellate Litigation: A Guide to Modern Practice.

This treatise is an expert guide to appellate litigation as it is practiced today. It covers all aspects of appellate practice, from issue preservation at trial to Supreme Court review, helping readers to: (1) plan an approach for handling an appeal from start to finish, (2) learn specific techniques and strategies for improving their written and oral advocacy, and (3) answer common procedural and technical questions.

For generalist litigators and inexperienced appellate lawyers, this book provides an invaluable introduction to modern appellate practice. For the experienced attorney looking to take his or her skills to the next level, leading appellate advocate Mark D. Harris and a team of expert litigators offer hard-won insights into doctrine, strategy, and technique.

Written in the engaging, thoughtful, and thorough style one would expect from top appellate practitioners, the book also includes practice tips, checklists, and excerpts from actual briefs analyzing the strategic choices of the authors as well as the mechanics of their written advocacy.

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New Edition! Product Liability Litigation

PLI Press is proud to announce the publication of the second edition of Product Liability Litigation: Current Law, Strategies and Best Practices.

This comprehensive treatise provides legal, technical, and strategic knowledge that can help maximize an attorney’s ability to prevail in consumer product liability cases. It covers trends in product claims and defenses, strategies for managing and resolving product litigation, and particular issues and tactics that can arise in different types of product cases. Chapters are written by lawyers who represent both plaintiff and defense perspectives.

The new edition is substantially revised and reorganized. In addition to fully updating chapters from the first edition on traditional areas of product liability litigation, the authors have added new content on cutting-edge product claims arising from the use of autonomous vehicles, vaping devices, cannabis products, blockchain technology and smart technology. There is also a new chapter on suing foreign defendants in the United States.

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New Title! Schwartz on Section 1983

PLI Press is proud to announce the publication of the new treatise Schwartz on Section 1983: Law and Commentary.

Professor Emeritus of Law Martin A. Schwartz, one of the nation’s leading experts on Section 1983 litigation, examines the essential aspects of Section 1983 law. His treatise is carefully organized to follow the progression of Section 1983 litigation. Comprehensive and incisive discussions provide practitioners with the guidance they need to successfully deal with all aspects of litigation. Throughout the chapters, Schwartz provides invaluable “Practical Commentary” in which he shares personal observations from over 50 years of litigating, consulting, teaching, and writing about the law of Section 1983, as well as advice through each step of litigation, including in:

  • Determining whether to assert a claim in federal or in state court
  • Determining whether to name an official in her personal or official capacity, or in both capacities
  • Evaluating false arrest, malicious prosecution, and other related claims
  • Understanding the standard of judicial review governing the plaintiff’s equal protection claim and the litigation significance of that standard
  • Evaluating whether a claim has factual or legal basis or a realistic chance of success to name a municipal entity as a defendant
  • Understanding the separate issues of supervisory liability and municipal liability
  • Understanding the various abstention doctrines that provide defendants’ attorneys with a wide array of potential defenses that can lead to dismissal of a federal court action and a stay of federal court proceedings
  • Understanding the law governing remedies

Providing essential insight into the complex statue and accompanying case law, this is an indispensable resource for practitioners.

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New Edition! Arbitrating Commercial Disputes in the United States

PLI Press is pleased to announce the publication of Arbitrating Commercial Disputes in the United States (Second Edition).

Bringing or defending commercial arbitrations requires a clear grasp of the latest developments in the field, a practical understanding of how the arbitration process works, and knowledge of how the courts interpret and enforce arbitration agreements and treat arbitral awards. And participating in an arbitration demands a distinctive set of skills, different from those learned in the courtroom.

Author/editor David Singer and his contributors—many of them arbitrators, and all of them deeply familiar with the arbitration process—provide the information and insights that will help readers master commercial arbitration. Citing hundreds of cases, as well as drawing upon the extensive experience of the contributors, this book addresses the strategies that lead to success.

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New Title! COVID-19 and Other Pandemics

COVID-19 and Other Pandemics: Business and Legal Challenges, a new treatise from PLI Press, is now available for purchase.

The dramatic rise in client questions about the fallout from COVID-19 – on workplace risks, liability, health insurance, contracts and force majeure clauses, testing and tracing and more – presents a real-time challenge: Lawyers need clear answers now to navigate the regulatory and medical challenges.

This book, from public health and safety regulation experts James O’Reilly and Philip Hagan, provides background and analysis of legal and scientific issues that clients will need to understand in order to manage the new “normal” they are facing as they try to conduct business amidst a global pandemic. This results-oriented treatise combines practical advice, the latest scientific research and guidance from key government agencies to provide readers with the answers they need and the questions they didn’t know to ask.

Read more about this timely treatise on Above the Law.

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