Reconciling Different Outlooks
August 01, 2005
What does a firm do when differences in philosophy and management style threaten its very existence? How do you begin to deal with the issues that have accelerated to the crisis stage? Following is the experience of one firm that had to face some difficult decisions about its future. We were requested to step in and sort out the problems with a view towards proposing solutions and providing a basis for reconciliation. This scenario presents the case of a fictional law firm, Mason & Logan, and is a composite of the types of problems encountered by a firm in transition.
Differences Of Opinion
August 01, 2005
In most complex commercial transactions ' mergers, acquisitions, loans and other financings ' the seller's or borrower's counsel is called upon to provide an opinion letter. The letter typically addresses various matters of interest to the buyer or lender, including any exposure to litigation, government inquiry or other proceedings that might have an impact on the value or viability of the client's business. Increasingly, when something goes wrong with the transaction, aggrieved buyers and lenders are seeking recourse, not just against the seller or borrower, but also against the law firm that wrote the opinion letter. <br>What happens when a law firm provides an opinion letter that is later found to have errors or omissions?
Strategic Considerations for Inter Partes Re-examination
August 01, 2005
The cost of patent litigation is enormous, and continues to increase. According to the 2003 AIPLA survey, the median cost for a patent litigation with less than $25 million at stake was close to $2 million. Furthermore, many large companies are increasingly coming under attack from small patent holders or patent holding companies. Because of these developments, the <i>inter partes<i> re-examination procedure is becoming an increasingly attractive alternative for patent defendants. However, the <i>inter partes<i> re-examination procedure carries its own risks. As discussed further below, the advantages and disadvantages should be carefully weighed prior to instigating an <i>inter partes</i> re-examination.
Are Experts Required?
August 01, 2005
One of the first things that a party does when planning a patent litigation or when sued for patent infringement is hire a phalanx of experts. However, what gets lost in the equation is the preliminary questions of "are all of these experts necessary?" and "will their testimony be accepted by the court?"
Recent Court Decisions Regarding Actual Notice of Patent Infringement
August 01, 2005
Consider the following hypothetical situation. Mr. Jones, an engineer with your Company XYZ, informs you that a supplier for XYZ saw a rival company's Product X, which appeared quite similar to the one currently in development at XYZ. Mr. Jones tells you that representatives of XYZ had mentioned that Product X is patented. Should you (a) disregard what Mr. Jones has told you, (b) await word from attorneys for Product X, (c) contact attorneys for Product X to discuss possible infringement issues, or (d) request a formal opinion from outside counsel?
A Bow to Innovation: The Supreme Court's Decision in MGM v. Grokster
August 01, 2005
The Supreme Court's recent decision in <i>Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.</i>, ___ U.S. ___, 125 S.Ct. 2764, 75 U.S.P.Q.2d 1001 (2005) is noteworthy for the Court's decision to sidestep modifying the standard that the Court set in the <i>Sony</i> case in 1984 as to when a product distributor can be liable for infringing uses of its product. Although the Supreme Court was faced with compelling arguments from copyright owners and the technology industry alike both for and against modifying the standard in <i>Sony Corp. v. Universal City Studios</i>, 464 U.S. 417 (1984), it ultimately found that Grokster and its co-defendant StreamCast could be liable for infringing downloads, not because they distributed a product that was used to infringe copyrights, but because they took the additional step of actively inducing their users to download copyrighted material. In so doing, the Supreme Court avoided deciding whether it was appropriate that a mere distributor of a product "capable of substantial noninfringing use" should avoid liability even when its product is being used for massive copyright infringement.
Can You Fire an Employee for Blogging?
July 29, 2005
What employees do on their own time is their own business, right? Except when you think it may adversely impact your business. It's one thing for an employee to harbor extreme political views. It's another thing to blog them to the world. An employee's private sex life is, well, private. But what if an employee blogs his or her sexual fantasies to the world? Does an employer have the right to take action against an employee for off-duty blogging it finds offensive or otherwise problematic?
Domestic Violence in the Workplace
July 29, 2005
It seems that we read news stories almost daily about estranged husbands and boyfriends hunting down women at work, and ultimately killing these women before committing suicide. The "spillover" of domestic violence into the workplace is a widespread phenomenon and one that employers must acknowledge and deal with. It is not simply a private family issue. It cannot be minimized or ignored. The workplace is an easy place to find someone, which enables estranged partners to harass, stalk and sometimes kill their victims at work.
