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Voice-mail has traditionally been the most personalized and candid form of communication in business. Even with the proliferation of e-mail and other electronic documents, voice mail continues to have a greater impact on juries and judges. <br>While voice mail has always been subject to discovery and investigation, the process for electronically saving voice mail and filtering through the saved messages has been spotty and very time consuming. All of this is about to change.
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If a technical application existed that coded litigation documents at a fraction of the time and cost, would you use it? As new technologies emerge, Winston & Strawn, a 150 year-old firm with nearly 900 attorneys and multiple offices worldwide, asks this question time and again. As litigation support project manager at the Washington, DC office, my latest conclusion is that autocoding is an important piece of litigation technology and the time has come.
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The latest rulings of importance to you and your practice.
The truth is apparently no defense for the state when it comes to issuing warning labels for nicotine gums and patches. Recently, the California Supreme Court unanimously ruled in <i>Dowhal v. SmithKline Beecham Consumer Healthcare</i>, 04 C.D.O.S. 3259 that federal regulations trump state statutes when it comes to putting pregnant women on alert about the possible dangers of Nicorette' and other nicotine-replacement therapies -- even if the state warnings are legitimate. "Whether a label is potentially misleading or incomprehensible is essentially a judgment of how the consumer will respond to the language of the label," Justice Joyce Kennard wrote. "A truthful warning of an uncertain or remote danger may mislead the consumer into misjudging the dangers stemming from the use of the product, and consequently making a medically unwise decision."
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In a decision issued March 9 in the case of <i>Pharmaceutical Care Management Ass'n v. Rowe</i>, No. 03-153-B-W, 2004 U.S. Dist. LEXIS 3758 (D. Maine 3/9/04), U.S. District Judge John A. Woodcock Jr. delayed enforcement of a novel Maine law whose intent is to make the business practices of companies that negotiate drug prices on behalf of health plans more transparent. The preliminary injunction has at least temporarily prevented the state of Maine from implementing Maine's 2003 "Act to Protect Against Unfair Prescription Drug Practices (M.R.S.A. ' 2699), known as UPDPA, against pharmaceutical benefits managers (PBMs).
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Without disease and illness, there would be no need for life science companies or the products that they develop. Some modern maladies and ailments present more challenges than opportunities for biotech and medical device firms. Severe Acute Respiratory Syndrome (SARS) and comparable pathogens present medical device and life science manufacturers with new and daunting risks. One such peril lies in the realm of product liability.
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Recent rulings of importance to you and your practice.
Last month, we explained that when a once steady and reliable customer becomes delinquent in payment and eventually files for bankruptcy protection, your client becomes one of many creditors trying to recover a portion of its investment. We explained how, whenever a creditor receives a benefit from a debtor shortly before the debtor files for bankruptcy, a preferential transfer may occur. And we showed how section 547(b) of the Bankruptcy Code permits a trustee to avoid pre-bankruptcy transfers as "preferences." The first tactic we discussed for defending such preference actions was to dispute plaintiff's <i>prima facie</i> case. In this month's installment, we discuss preference avoidance by statutory exception, and the availability of a jury trial.
In the Chapter 11 context, it is common for interested parties to challenge the characterization of a Chapter 11 debtor's obligations under an agreement styled as a lease. A Bankruptcy Court's determination as to whether a transaction is a "true" lease or a secured financing can have far-reaching consequences on the administration of a debtor's Chapter 11 case and the respective rights of each party to the agreement. As the recent decision by the Third Circuit Court of Appeals in <i>Duke Energy Royal, LLC v. Pillowtex Corp. (In re Pillowtex, Inc.)</i>, 349 F.3d 711 (3d Cir. 2003) illustrates, when faced with the question of whether a transaction constitutes a "true" lease or a secured financing, bankruptcy courts will look beyond the form to the substance of the parties' agreement.