Category Archives: Litigation

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

In addition, this release includes an updated Table of 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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Treatise Update: Post-Grant Proceedings Before the Patent Trial and Appeal Board

Post-Grant Proceedings Before the Patent Trial and Appeal Board guides readers through the process of initiating a post-grant proceeding, taking discovery, seeking sanctions, proposing and opposing claim amendments, effectively advocating at the oral hearing, appealing to the Federal Circuit, and handling a wide array of issues involving co-pending district court litigation.

Updates from Release #10 include:

In Chapter 2, the section on Claim construction discusses changes to the PTAB standard for petitions filed after November 13, 2018, from the broadest reasonable interpretation standard to the Phillips v. AWH Corp. standard used in civil actions and at the International Trade Commission. See § 2:5, at note 57.
In Chapter 3, a section on Standing—real party in interest discusses Applications in Internet Time, LLC v. RPX Corp., in which the Federal Circuit held that “the focus of the real-party-in-interest inquiry is on the patentability of the claims challenged in the IPR petition, bearing in mind who will benefit from having those claims canceled or invalidated.” See § 3:2.3[A], at note 46.
In Chapter 3, the section called Joinder discusses the first case to be taken up by the PTAB’s Precedential Opinion Panel, which determined that, under appropriate and limited circumstances, a petitioner may join its own previously instituted IPR to request joinder and institution of new issues (Proppant Express Investments, LLC v. Oren Technology, LLC). See § 3:6, at note 193.
In Chapter 8, Amendments to claims discusses the notice of proposed rulemaking put forth by the USPTO on October 21, 2019. See § 8:3.1, at note 99.
In Chapter 8, under the section Inter partes review—timelines, a new figure 8-1 depicts the anticipated trial flow of an inter partes review proceeding, depending on whether or not a second, revised motion to amend is filed by the patent owner. See § 8:3.1.
Chapter 14, Appeals to the Federal Circuit includes updated information on the number of PTO appeals filed in the CAFC. See § 14:1, at note 2.

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Treatise Update! Directors’ and Officers’ Liability: Current Law, Recent Developments, Emerging Issues (Third Edition)

Directors’ and Officers’ Liability provides a cutting edge, straightforward explanation of the obligations of directors and officers of public companies, the penalties that they face if they fail to meet their obligations, and the protections that are offered them under the law or by agreement. This treatise for corporate counsel, private practitioners, and for directors and officers themselves guides readers through the essentials of the current law, recent developments, and emerging issues of directors’ and officers’ liability. This title covers the sources of law governing the duties of directors and officers; the key facets of board committees; the duties of directors and officers under state corporate law and federal and state securities laws; private civil actions and public enforcement; exculpation, indemnity, and insurance; cybersecurity; contested mergers and acquisitions; Securities Act suits filed in state court; special issues in pharma and biotech; and more.

The highlights for the latest release for Directors’ and Officers’ Liability include:

Emerging Issues: A Revival of Caremark Claims. Two recent decisions, one issued by the Delaware Supreme Court in June 2019 and another issued by the Delaware Court of Chancery in October 2019, herald what might be a new era of shareholders asserting Caremark claims, breach of the duty of loyalty by a failure of oversight, and those claims surviving motions to dismiss. See new section 8:7 and section 3:3.14 for a review of Caremark and analysis of Marchand v. Barnhill and In re Clovis Oncology, Inc. Derivative Litigation.

Federal Forum Exclusive Venue Provisions for Securities Act Claims. In Sciabacucchi v. Salzberg, the Delaware Court of Chancery held that company charter provisions stating that federal courts shall be the exclusive forum for Securities Act class action claims are invalid. See new section 1:4.2 for a history and analysis of jurisdiction over securities class actions under the PSLRA, SLUSA, and the latest Delaware cases.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact libraryrelations@pli.edu.

Treatise Update: Fragomen on Immigration Fundamentals

Offering in-depth coverage of bedrock immigration legislation, the latest USCIS rules and programs, and pivotal court decisions, Fragomen on Immigration Fundamentals: A Guide to Law and Practice (Fifth Edition) provides the legal and procedural knowledge to work more efficiently and effectively with employers, noncitizens, nonimmigrants, refugees, naturalized citizens, and government officials.

The latest release for Fragomen on Immigration Fundamentals updates the following chapters:

Among the new developments covered in this release are:

Public charge determinations: The Trump administration has implemented strict new standards for determining whether an adjustment applicant or immigrant visa applicant is, or is likely to become, a public charge. The new rules require officials to weigh a number of factors rather than reviewing only the sponsor’s financial information, and lengthen the list of public benefits to be considered in the review. New section 3:4.3[F], Public Charge Determinations.
Southwest border crisis: In August 2019, DHS and HHS issued a new rule relating to the detention of minors, which, in their view, terminates the Flores agreement. The rule creates an alternative licensing scheme that allows the detention of families together in the same facility; states that the criteria governing the parole of persons in expedited removal proceedings apply to minors, as well as to adults; and states that bond redetermination hearings are only available to minors in regular, not expedited, removal proceedings. Section 7:5.7[A], Trump Administration Policies.
Asylum claims: The USCIS and EOIR issued a joint rule in July 2019 that bars asylum claims by individuals who enter or attempt to enter the United States across the southern land border after failing to apply for protection from persecution or torture while in a third country through which they transited. That same month, a California district court issued a nationwide preliminary injunction, but the Ninth Circuit limited the reach of the injunction to cases arising within that circuit. New Section 6:2.6[C][7], Failure to Apply in Safe Third Country.
Expedited removal: Pursuant to new directive, in July 2019, Acting Secretary McAleenan designated for expedited removal two additional categories of persons. Section 7:5.6[A], Classes of Individuals Subject to Expedited Removal.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please contact LibraryRelations@pli.edu.

New Edition! Federal Bail and Detention Handbook 2019

We are pleased to announce that the Honorable Evelyn J. Furse, a United States Magistrate Judge for the District of Utah, at Salt Lake City, joins as Co-Author of Federal Bail and Detention Handbook.

Federal Bail and Detention Handbook 2019 provides up-to-date and accessible coverage of developments under the Federal Bail Reform Act of 1984. Among the important recent cases discussed in this edition are:

A Second Circuit case in which the court approved the pretrial release of an alleged leader of organized crime under conditions that included home detention with monitored video surveillance and (over defendant’s objection) the posting of armed guards, at defendant’s expense. Section 5:5, Other Conditions Courts Can Impose.
A Sixth Circuit case that found that while the district judge could release the defendant pretrial and presentence under the Bail Reform Act, the district court could not order ICE to refrain from detaining the defendant under the Immigration and Naturalization Act. Section 6:7.3, Risk of Nonappearance, and section 14.4, State Habeas Petitions, Federal Section 2255 Motions, Immigration Hearings, and International Extradition Cases.
A D.C. Circuit case that held that any prohibition against contact with victims or witnesses should be clear as to which victims or witnesses, and that such a prohibition would only apply to victims or witnesses to the then-pending charges in the case, not to victims or witnesses that the government might later identify. Section 5:5, Other Conditions Courts Can Impose, and section 11:3, Showing Required.

This essential treatise is available on PLI PLUS. If you would like to order a print copy, please visit our website or contact libraryrelations@pli.edu.