Practice Tip: Proposed Changes to the FRCP Regarding Discovery of Electronically Stored Information
On Dec. 1, 2006, new amendments to the Federal Rules of Civil Procedure addressing discovery of electronically stored information will take effect unless Congress enacts legislation to reject, modify, or defer the amendments. The amendments to Rules 16, 26, 33, 34, 37, and 45, which were approved by the U.S. Supreme Court on April 12, 2006, attempt to bring the discovery rules up-to-date in an Information Age where the majority of new communication and information is now created, disseminated, and stored in electronic media.
Deference to Agency Decisions: Lessons from Recent Pharmaceutical Pre-emption Decisions
One question that has been raised in pre-emption decisions is the degree of deference to be shown an agency's explicit statement that it intends certain failure-to-warn claims to be pre-empted. For example, in the pharmaceutical arena, the Food and Drug Administration ('FDA') through the Department of Justice ('DOJ') filed amicus briefs in several lawsuits to reiterate its position on pre-emption of state law tort claims. In these briefs, the United States stressed that in the context of warnings, 'more is not always better.' <i>Amicus</i> Brief for the United States, <i>Kallas v. Pfizer</i>, No. 04-00998 (D. Utah Sept. 29, 2005) at 28. The FDA's regulation of prescription drugs ensures each drug's optimal use by requiring inclusion of only scientifically substantiated warnings. <i>Id.</i> Plaintiffs' failure-to-warn claims therefore 'stand as an obstacle' to the FDA's accomplishment of its congressionally mandated purpose of ensuring the public health and are therefore pre-empted. <i>See Id.</i> The FDA has also stated its position on pre-emption in the preamble to its Rulemaking for Labeling requirement, which became effective on June 30, 2006. <i>See</i> 21 C.F.R. '10.85(d)(1) (2006).
Avoiding the Sand Trap: Silica Liability and the Premises Owner
Many landlords have commissioned refurbishing or cleaning that involved sand blasting, concrete cutting, or masonry drilling on or at a building that remained in use. Some have leased premises to tenants that engage in these activities or that engage in production steps that include sanding, blasting, or scouring. There are special concerns about these activities that landlords should address, and this article explains why.
Blogging and the Workplace
Blogs can reach millions of readers long before the employer learns about a potentially worrisome posting. No laws specifically regulate blogging per se, and there's virtually no guiding case law. And so, employers must look elsewhere for guidance on balancing employees' interest in life away from work and ensuring that employees' blogging doesn't damage business interests; that elsewhere is a new destination on the company document roster: a blogging policy.
Exploring Alternatives to the Franchise Model
We have all run into a situation where an existing or potential client has outlined a deal management wants to do (or, in some cases, has already done), which meets the legal definition of a franchise, but the client is adamant about avoiding the real or perceived burdens of being deemed a franchisor. Establishing a franchise system may require, among other things, compliance with franchise sales laws, public disclosure of financial statements, observing contractual limitations imposed by franchise relationship laws, and enduring the public image of being a franchise. There are a variety of distribution models other than franchising available to clients for structuring envisioned expansion. However, if certain elements are involved in the proposed transaction, creation of a franchise system may become legally necessary. This article addresses the issues practitioners face in advising clients in these scenarios and explores some of the various alternatives to the franchise model and exemptions from franchise disclosure law that are available to your clients.
New Chief At the CEO's Roundtable
Recent reports of criminal investigations, indictments and resignations of high-ranking company personnel coming out of the Hewlett-Packard boardroom remind us that, even after the scandals of the 1990s and the host of new laws, regulations and internal corporate practices that followed, bad things can happen at good companies. Among other things, the saga at HP reinforces the need for an independent compliance and ethics function at all publicly traded corporations. What follows is a proposal to create such a function by improving on the considerable advances in this area made by U.S. companies over the past several years. The foundation for this proposal is this: Ethical and compliance issues are best addressed by corporate officers who are organizationally, physically and financially independent from those of their colleagues who might be subject of their investigatory and reporting work.
Lessons from Purdue: Patent Practitioner Tips for Avoiding Inequitable Conduct Claims
<i>'It has now been surprisingly discovered ' '</i>With these words in Purdue Pharma's U.S. Patent Nos. 5,656,295, 5,508,042 and 5,549,912, Endo Pharmaceuticals asserted a basis to challenge the enforceability of Purdue's controlled-release oxycodone formulations due to inequitable conduct. <i>Purdue Pharma L.P. v. Endo Pharms., Inc.</i>, 438 F.3d 1123 (Fed. Cir. 2006).
Multiple Joint Infringers of Process Claims: How Close Is Close Enough?
Typically, in an action concerning infringement of a process patent, the activities of an individual party are alleged to infringe one or more of the process patent claims. Under certain circumstances, however, the combined activities of two or more parties may constitute infringement of a process patent claim. Often, courts analyze these situations by determining if 'some connection' exists between the parties whose activities are being combined. This standard, in our view, ultimately defines more activities as infringing than is warranted. A more appropriate standard would be a 'working in concert' standard.
To PC or Not to PC
Some partners in multi-state partnerships have recently rediscovered the benefits of becoming a professional corporation (PC) partner in their law firms, primarily to obtain state income tax savings. Where the advantages outweigh the disadvantages, some firms have accommodated (and in some cases, encouraged) some of their partners to consider this alternative. A by-product of the influx of PC partners is that a number of multi-state law firms will consist of both incorporated and unincorporated partners, and partnership agreements must be reviewed (and in some cases amended) to accommodate this arrangement and deal with ancillary consequences.
