Prescription Drug Litigation Pre-emption: A Continuing Status Report From the Defense Perspective
December 28, 2006
Since the Food and Drug Administration ('FDA') set forth its pre-emption analysis in the preamble to its Jan. 24, 2006 drug-labeling rule, there has been a flood of judicial opinions analyzing the scope and applicability of the pre-emption defense in prescription drug litigation. The cases have been sharply divided, and the defense now appears likely to be a key issue that will be addressed in all cases going forward. In this continuing coverage, I summarize the pre-emption opinions that have been handed down since my last article in the November 2006 issue of this newsletter. For an analysis of the legal arguments in support of pre-emption and the FDA preamble, <i>see</i> Eric G. Lasker, <i>Prescription Drug Litigation Pre-emption Following the FDA Preamble</i>, LJN's Product Liability Law & Strategy, Vol. 25, No. 4 (October 2006).
Exploring the Broader Application Of the Delaware Court's 'Daubert' Decision
December 28, 2006
The first part of this article discussed the Delaware court's decision in <i>In re Asbestos Litigation</i>, the role of epidemiology in proving causation, and the interpretation of the <i>Daubert</i> decision by several courts. The conclusion examines the role of courts as gatekeepers.
Practice Tip: Buyer (of the Assets of a Company) Beware
December 28, 2006
Company X is evaluating whether it should purchase the assets of Company Y, which manufactures lawnmowers. Company X has been looking to break into the lawnmower market and sees the purchase of Company Y's assets as an excellent opportunity to do so. Company X is considering two courses of action if it purchases Company Y's assets: 1) continue the manufacture of Company Y's lawnmower product line, using Company Y's designs, specifications, diagrams, blueprints, personnel, and manufacturing facilities; or 2) cease the manufacturing of the product line, but continue Company Y's ancillary business of repairing and servicing the lawnmowers it sold to its customers. Company X comes to you with a seemingly straightforward question: Under these two scenarios, will it be held liable for product liability claims arising from Company Y's manufacture and sale of defective lawnmowers, even if, as part of the asset purchase, it expressly declines to assume Company Y's liabilities? Unfortunately, based on the current state of the law, you will not be able to provide Company X with an easy, clear-cut answer.
<b><i>Commentary: </b></i>Just Looking: Should Internet Ignorance Be a Defense to Child Porn Charges?
December 28, 2006
Two appellate courts recently ruled that an individual who intentionally visited Web sites to view child pornography, but who did not intentionally save those images to his computer's hard drive, could not be convicted or punished for possessing images that were automatically saved due to the Web browser's cache functions. These rulings strike me as badly mistaken, for reasons that I shall explain further below.
Is Your Web Site COPPA Compliant?
December 28, 2006
In 1998, Congress passed the Children's Online Privacy Protection Act (COPPA), broadly expanding the Federal Trade Commission's (FTC) enforcement powers in the Internet arena. Since then, states and the FTC have become more active in regulating the collection, use and security of consumer's personal information generally. However, the protection of children's personal information remains a top FTC enforcement goal, and the commission has become more aggressive in enforcement of COPPA each year. Companies that fail to proactively act to ensure COPPA compliance do so at the risk of seven-figure penalties. <br>This article provides Web site operators with suggestions on how to comply with the spirit of COPPA when legal obligations are not crystal clear, as in the case when the operator of the Web site in question believes that it can make a good faith effort to be a 'general audience' Web site, but has reason to believe that the site may attract visitors under the age of 13 and is unsure how the FTC will view and treat the site.
Bit Parts
December 28, 2006
Anti-Piracy Statutes/Constitutionality<br>Copyright Infringement/Probative and Substantial Similarity<br>Copyright Infringement/Substantial Similarity<br>Trademarks/Right to Sue<br>Video-Game Laws/Constitutionality
<b>Counsel Concerns:</b> Fund Misappropriation and Suspension from Practice
December 28, 2006
The Court of Appeals of Maryland decided that an 18-month suspension of an attorney from practice for taking fees out of royalty distributions before submitting the royalties to a client should run consecutively with a suspension of the attorney for the same reason by the D.C. Court of Appeals. <i>Attorney Grievance Commission of Maryland v. Midlen</i>.
<b>False Endorsement; Right of Publicity</b>
December 28, 2006
The U.S. District Court for the District of New Jersey preliminarily enjoined further distribution and ordered the recall of the book 'Legit Baller,' which features an allegedly unauthorized, prominent use of photographs of popular R&B singer/producer Marc Dorsey on its covers. But the court declined to order a recall of the defendant publisher's other books that included advertisements of 'Legit Baller.' <i>Dorsey v. Black Pearl Books Inc</i>.
Removal to Federal Court: Death of the First-Served Defendant Doctrine
December 28, 2006
Under 28 U.S.C. §1446(b), defendants seeking to remove a case to federal court must file their notice of removal 'within thirty days of receipt, through service or otherwise, of the complaint.' Federal circuits historically have split over when the removal period begins and expires. <i>See generally</i> Brian Sheppard, Annotation, <i>When Does Period for Filing Petition for Removal of Civil Action From State Court to Federal District Court Begin to Run Under 28 U.S.C.A. §1446(b)</i>, 139 A.L.R. Fed. 331, at §§28-29 (1997). Some circuits have held that the removal period begins when the first defendant is served and expires 30 days later, regardless of when other defendants are served. Those circuits subscribing to the 'first-served defendant' doctrine hold that defendants served more than 30 days after the first defendant is served are precluded from removing the case if the earlier-served defendant failed to remove within 30 days after service. <i>E.g., Getty Oil v. Insurance Co. of North America</i>, 841 F.2d 1254, 1262-63 (5th Cir. 1988) (holding that the 30-day period for removal commences when the first defendant is served). Rejecting the first-served defendant doctrine, other circuits have held that the removal period begins anew each time a new defendant is served. <i>E.g., Brierly v. Alusuisse Flexible Packaging, Inc.</i>, 184 F.3d 527, 533 (6th Cir. 1999) (holding that later-served defendants have 30 days to remove even if first-served defendant's 30-day period has already expired). Those circuits reason that it is fundamentally unfair to foreclose removal by later-served defendants, particularly those defendants served after the expiration of the first 30-day period.
Courthouse Steps
December 28, 2006
Recently filed cases in entertainment law, straight from the steps of the Los Angeles Superior Court.
