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In the race between a debtor and a third party to recover the proceeds of a directors' and officers' insurance policy (a "D&O Policy"), it is critical that the debtor employ the correct strategy for the applicable jurisdiction in order to enjoin its competitor from reaching the proceeds first. Choosing the wrong strategy could mean the difference between collecting tens of millions of dollars and obtaining a judgment not worth the paper upon which it is written. Indeed, the proceeds of the D&O Policy ("D&O Proceeds") may be the largest asset of the estate. As a result, a successful reorganization could depend upon filing in the right jurisdiction and implementing the correct litigation strategy.
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In <i>MGM Studios, Inc. v. Grokster</i>, the Supreme Court decided that the defendants could be held liable for copyright infringement perpetrated by the users of their respective software. Rather than clarifying the "significant non-infringing use" standard from <i>Sony Corp. of America v. Universal City Studios, Inc.</i>, to determine whether the defendants could be held liable for distributing a product with knowledge that it could be used to infringe, the Court utilized an alternative approach of finding liability. Turning to common law precedent and patent law, the unanimous Court held that liability may be based on purposeful, culpable expression under an inducement theory of secondary infringement. While some of the potential implications of this decision can be predicted, the full effect will not likely be clear for some time.
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The recording industry was dancing to the sweet music of victory in June, when the U.S. Supreme Court unanimously ruled in its favor in <i>MGM Studios Inc. v. Grokster</i>. But a post-verdict depression may be on the way, if the results of <i>IP Law & Business</i>'s informal survey of 38 IP lawyers and professors are any indication.
The future direction of digital technologies was on the line when the U.S. Supreme Court heard arguments in March over peer-to-peer (P2P) file-sharing software. And few were predicting that the Justices would easily reach their decision. Given the difficult copyright law and policy issues in the case, it seemed highly unlikely that the Justices could all agree. But 3 months after oral arguments, the Court surprised many observers by issuing a unanimous decision ' at least as to the main holding.
The Internet industry has had a little time to sit back and examine the U.S. Supreme Court's decision in the <i>Grokster</i> case, pondering its true meaning and its impact on technology and software developers as well as the entertainment industry. In this virtual roundtable discussion, members of <i>Internet Law & Strategy</i>'s Board of Editors and other Internet law experts chime in with their thoughts. I think you'll find these comments insightful and raise the issues that the industry faces in the wake of <i>Grokster</i>.
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The latest cases and developments in e-discovery.
A group of vendors, attorneys and other electronic-discovery services "consumers" hopes to use public input to develop a reference model that would help set e-discovery standards and guidelines.
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Chris Getner of Aaxis Technologies answers some key e-discovery partnering and solution-seeking questions.
Even the most seasoned litigator may be puzzled by such arcane terminology as deduplication, metatags, blowbacks and concept querying. To make sense of the electronic-data discovery (EDD) process in general, and to further ensure that the litigator is adept in using the selected litigation review and production tools, selecting a trainer with the appropriate skills and pedagogical technique, combined with "real world" experience in setting up review workflows and meeting production deadlines, is nothing short of critical.
Electronic discovery in today's quickly changing litigation environment presents many new demands and dangers for counsel and risk management executives. Dire warnings are being issued about the consequences of e-discovery, and with good reason. In cases such as <i>Zubulake</i>, companies have been punished for failing, in the court's eyes, to preserve electronic evidence properly. The penalties range from the severe ' attorneys' fees ' to the extreme ' the entry of default judgment. <br>There are, however, steps you can take now ' before a lawsuit is filed ' that may improve your company's ability to preserve electronic evidence without unduly burdening day-to-day operations.
