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Features
In-depth analysis of important verdicts.
Features
In the wake of the demise of Arthur Andersen following the partnerships' indictment by the federal government, prosecutors are increasingly pressuring corporations to enter into deferred-prosecution agreements (DPAs) to avoid ' at least temporarily ' full-blown criminal prosecutions. While these agreements may seem to offer an attractive option to embattled companies faced with the prospect of a lengthy and potentially devastating criminal prosecution, the freedom with which the individual prosecutors operate when crafting the agreements should cause concern.
Features
<i>' ' [A]lthough nothing is off the table when you voluntarily disclose, I can tell you in unequivocal terms that you will get a real benefit ' '</i> Despite these heartening words by Assistant U.S. Attorney General Alice S. Fisher at a recent conference on the Foreign Corrupt Practices Act (FCPA), an attorney representing a corporation cannot recommend voluntary disclosure of potentially criminal FCPA activities without weighing the promise of a 'real benefit' against the very real risks.
Features
The Department of Justice (DOJ), in the wake of increasing criticism of its policies on waiver of privileges by corporations and their advancement of legal fees to employees under investigation, issued a 21-page memorandum on Dec. 12, 2006, revising the 'Principles of Federal Prosecution of Business Corporations,' alias the Thompson Memorandum. The revised policy, embodied in a memorandum by Deputy Attorney General Paul D. McNulty, comes close on the heels of two influential attacks on the Thompson Memorandum: a bill sponsored by Sen. Arlen Specter (R-PA) that would prohibit prosecutors from pressing companies to waive privileges or cut off legal fees, and an opinion by Manhattan U. S. District Judge Lewis A. Kaplan, holding that prosecutors had violated the constitutional rights of former KPMG partners when they pressured KPMG to stop paying the ex-partners' lawyers.
Features
A Delaware bankruptcy court held on Nov. 16 that a secured lender with a $128 million claim could credit bid at a judicial sale of a Chapter 11 debtor's assets, after dismissing the expansive complaint filed against the lender by the creditors' committee in the debtor's case (claims for recharacterization of debt as equity; equitable subordination; breach of fiduciary duty; invalid loans; voidable liens; and preference liability).
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The recent decision, <i>Fuji Kogyo Co. v. Pacific Bay Int'l, Inc.</i>, 461 F.3d 675 (6th Cir. 2006), confronts the question deliberately left unresolved in <i>TrafFix Devices, Inc. v. Marketing Displays, Inc.</i>, 532 U.S. 23 (2001), of whether a product design claimed in a prior utility patent can ever be protectable trade dress under the Lanham Act. Although setting a high bar to protectability, indeed a 'presumption' and 'heavy burden' that material claimed in a utility patent is functional and hence unprotectable once the patent term ends, the Supreme Court, of course, expressly elected not to foreclose such protection entirely. Thus, it refused the invitation of defendant TrafFix, and 'some of its amici,' to rule that 'the Patent Clause of the Constitution, Art. I '8, cl. 8, of its own force, prohibits the holder of an expired utility patent from claiming trade dress protection.' 532 U.S. at 35. Without itself addressing the constitutional question of how narrowly 'limited times' means 'limited times,' <i>Fuji Kogyo</i> does nothing to ease the burden in establishing trade dress protection for once-patented subject matter; it offers as well a new (if, perhaps, less than fully developed) analytical approach for applying the <i>TrafFix</i> presumption, asking whether the claimed trade dress would have infringed the expired patents.
Features
Whether calculating lost profits or performing a 'reasonable royalty' analysis under the <i>Georgia-Pacific</i> factors, a damages expert in a patent case is required to consider a large variety of data ' not just data from the plaintiff or the defendant, but also data from third-party sources, such as trade industry publications or market analyst reports. The admissibility of an opinion based on third-party information, however, has been a source of conflict since 1993, when the U.S. Supreme Court decided <i>Daubert v. Merrell Dow Pharms., Inc.</i>
Features
Highlights of the latest franchising cases from around the country.
