Blogging and the Workplace
You may not know about it, but it is happening: At least one, and probably more, of your business' employees has entered the 'blogosphere.' The world of blogs, or interactive diaries posted on the Internet, has expanded exponentially over the past 3 years, and 'bloggers' cannot seem to resist the urge to talk about their jobs. These sometimes quasi-journalistic postings raise a host of concerns for employers, such as protecting a hard-won public image, safeguarding confidential information, and preventing defamation of managers and co-workers. Such concerns arise because blogs can reach millions of readers long before the employer even learns about the posting. No laws specifically regulate 'blogging,' and there is virtually no case law to provide guidance. Consequently, employers need to look elsewhere for guidance on the balance between their employees' interest in having a life away from work and ensuring that employees' activities in the blogosphere do not damage business interests ' a blogging policy.
How the Internet Exposes You to Risk
The advent of the Internet has provided businesses with a wealth of previously unavailable resources. Companies may now use electronic tools to communicate instantaneously with customers and associates around the globe. These improvements in sharing information, however, have not come without costs, and today's businesses must be aware of the risks involved in using these technologies. This article, the first in a two-part series, contains an overview of some common risks inherent in Internet use and closes with a discussion of how those risks might affect litigation.
Conflict of Laws And Insurance Disputes: Choice of Law or Choice of Outcomes?
Most insurance policies are silent as to which state's substantive law governs their terms. As a result, insurance-coverage lawyers often find ourselves wading deep into the world of choice of law and conflict of laws. Conflicts issues are (largely) untethered from the merits of a case, yet can be outcome determinative; so it is crucial to understand and focus on choice-of-law principles in com-plex insurance disputes, as they can yield the application of different state laws within a single case to issues of contract formation, performance, and bad faith.
Is Defective Workmanship an 'Occurrence'? The Jurisdictional Split Examined
Under the terms of a standard Commercial General Liability ('CGL') policy, an insurance company must defend and indemnify its insured for claims of property damage (or bodily injury) resulting from an 'occurrence' subject to certain enumerated policy exclusions. An 'occurrence' is typically defined as 'an accident, including continuous or repeated exposure to substantially the same general harmful conditions.' CGL policies do not define the term 'accident' and, consequently, the term has prompted substantial litigation. <i>See State Farm Fire & Cas. Co. v. CTC Dev. Corp.</i>, 720 So. 2d 1072, 1075 (Fla. 1998) (stating that 'few insurance policy terms have provoked more controversy in litigation than the word 'accident''). At the heart of the litigation is the parties' disagreement over what constitutes accidental damage.
Role for Patents In Videogame Industry
For videogame developers, publishers and investors, the most important asset is the intellectual property rights they own or control in a game. All of the elements of a videogame ' the story, audiovisual elements, underlying computer code and even 'gameplay' elements (ie, that specify the way a user interacts with and experiences a game) ' are subject to one or more forms of intellectual property protection. Traditionally, intellectual property protection for videogames has been based upon either trade secret, copyright or trademark. Patents, however, are quickly becoming an important part of the videogame industry.
Liability Without Harm: Is There a New Source of Catastrophic Liability Lurking Within Your State's Consumer Protection Statute?
Lost benefit suits are especially threatening to product manufacturers because these claims are particularly susceptible to class aggregation. Rule 23 of the Federal Rules of Civil Procedure permits plaintiffs to assemble into classes when, among other things, they share 'questions of law or fact' and those common questions 'predominate over any questions affecting only individual members.' Fed. R. Civ. P. 23. Ordinarily, injury and causation are sources of diversity between plaintiffs and, by extrapolation, impediments to class treatment. Plaintiffs who claim injury from tobacco, for example, frequently claim different injuries and different causal mechanisms and, therefore, typically may not assemble into classes. <i>See, e.g., Aspinall</i>, 442 Mass. at 392-93, 813 N.E.2d at 485-86. By dispensing with the injury and causation requirements, lost benefit suits destroy a source of diversity between plaintiffs and promote class treatment.
Managing Electronic Evidence
Discovery demands on in-house legal staff have changed drastically in recent years. Historically, complying with subpoenas and document production requests were quotidian chores for in-house legal staff. After receiving a complaint, counsel's office issued a standard 'document hold' to affected employees and directed that those involved in the case preserve their files and not destroy anything. Questions might arise, but they were manageable. What must be disclosed? What documents are privileged? How long will it take to retrieve documents from storage? How many staff hours will complying require? How much will it cost? Who bears the cost? Which discovery requests should be challenged?
Practice Tip: Minimizing Liability Exposure By Reporting Adverse Drug Experiences
In order to minimize potential product liability associated with pharmaceutical products, companies regulated by the U.S. Food and Drug Administration ('FDA') should be vigilant in ensuring that adverse drug experiences ('ADEs') are reported to the FDA in a timely and complete manner. FDA regulations contain extensive requirements regarding the reporting of ADEs for companies involved in the distribution chain, such as manufacturers and distributors. Failure to report, when required, can result in an FDA enforcement action and exacerbate liability exposure. A proactive ADE collection and reporting system will place a company in a better position to address unanticipated issues that may arise after full-scale commercial marketing has begun. Therefore, companies must know their regulatory responsibilities and implement procedures to ensure that ADEs are collected and reported, as required by law. This article covers only some of the re-quirements and issues to consider.
Prescription Drug Litigation Pre-emption Following the FDA Preamble: The Defense Perspective
It has now been more than 9 months since the U.S. Food and Drug Administration ('FDA') issued its new labeling rule for prescription drugs with an extensive preamble analysis of how many state tort legal claims conflict with and accordingly are pre-empted by the its regulation of such drugs. The FDA re-emphasized its position that state tort law claims threaten its ability to pursue its statutory mandate of protecting public health through balanced labeling. It thus explained that 'under existing pre-emption principles, FDA approval of labeling under the [FDCA] pre-empts conflicting or contrary State law.' 71 Fed. Reg. 3922, 3933 (Jan. 24, 2006).
