Substance over Form in the Bankruptcy Courts
May 26, 2005
The old saw is that if it walks like a duck and sounds like a duck, it must be a duck. Although bankruptcy is sometimes viewed by its detractors as defiant of common sense, the common sense duck adage is alive and well in bankruptcy courts. No matter what the parties or their lawyers may call an agreement or transaction, the courts are inclined to change the label and treatment to match what they see as the parties' true intention, risk retention, or economic reality. In bankruptcy parlance, the duck rule is called "recharacterization" and it is most commonly seen when courts are asked to consider shareholder loans, personal property leases, factoring arrangements, and asset backed securitizations. Through recharacterization, loans become capital contributions, leases become security agreements, and claimed true sales (the linchpin of factoring and securitizations) become loans. The impact of relabeling an agreement or transaction is significant. What was intended to be "bankruptcy remote" may find itself at bankruptcy central. The purpose of this article is to canvass just those situations where a lender, lessor and buyer could be very surprised, and how the recharacterization can affect the parties' expectations.
Google v. American Blind: Staying in Line with Online Advertising?
May 26, 2005
One of the hot intellectual property topics for 2005 — and perhaps beyond — is whether the sale and use of trademarks as keywords constitutes trademark infringement, and, if so, who is liable for that infringement. How the courts ultimately resolve this issue will affect the billion-dollar Internet advertising industry, those who participate in online advertising and those seeking to prevent the unauthorized use of their trademarks on the Internet. This article discusses <i>Google v. American Blind & Wallpaper Factory, Inc.</i>, 2005 U.S. Dist. LEXIS 6228 (N.D. Cal. Mar. 30, 2005), the most recent case to address the emerging issue of "markmatching" in Internet contextual advertising, and its relationship to trademark infringement.
Typosquatting and the Duty to Police Infringing Trademarks: Initial Interest Confusion and 'Post-Initial Confusion'
May 26, 2005
You are the owner of KibbleSoft, the widely used fuzzy-logic retail management software package for pet food distributors. Understanding the value of the KibbleSoft brand, you have registered the trademark and carefully policed against infringers for a number of years. And having early grasped the importance of the Internet for promoting your brand, you were also a step ahead of the cybersquatters and acquired the <i>kibblesoft.com</i> domain in 1996. Much of your business now runs through your heavy-trafficked Web site at <i>www.kibblesoft.com.</i>
Doctrine of Equivalents Applied to Means-Plus-Function Limitations: There Is No 'Equivalent of an Equivalent'
May 26, 2005
A means-plus-function limitation recites a function to be performed rather than definite structure or materials for performing that function. <i>Chiuminatta Concrete Concepts, Inc. v. Cardinal Indus., Inc.</i>, 145 F.3d 1303, 1307 (Fed. Cir. 1998). Such a limitation is more narrow than a counterpart written in structural format. <i>Lighting World, Inc. v. Birchwood Lighting, Inc.</i>, 382 F.3d 1354, 1361-62 (Fed. Cir. 2004). Nevertheless, patent drafters still commonly use means-plus-function limitations in computer-related patent claims for convenience sake.
IP News
May 26, 2005
Highlights of the latest intellectual property news from around the country.
Case Notes
May 26, 2005
Highlights of the latest product liability cases from around the country.
Application of a Universal Law in Multidistrict Litigation
May 26, 2005
When product liability cases are consolidated through Multidistrict Litigation ("MDL") proceedings, the proceedings are rife with complexities, and the obvious temptation for an MDL judge is to streamline and simplify these proceedings as much as possible. MDL judges have many appropriate tools at their disposal, such as case management orders and adoption of uniform discovery requests, to facilitate the proceedings. While certain techniques used to simplify and consolidate are appropriate, application of a "universal law" — in which one substantive law is applied to cases from various jurisdictions — is not. Application of a universal law violates due process and places consolidation and expediency above the interests of justice. Such a dangerous proposition was briefly suggested during the Ephedra MDL proceedings, involving hundreds of cases consolidated for pretrial purposes in the Southern District of New York.
Fortune Favors the Prepared Lawyer: The Benefits of a Trial Plan at the Class Certification Stage
May 26, 2005
By now, most class action lawyers are familiar with the argument that a court must take a "close look" during the class certification stage in order to ensure that certification is indeed practicable and appropriate. <i>Castano v. American Tobacco Co.</i>, 84 F.3d 734, 740 (5th Cir. 1996) (reversing certification decision for failure to assess "how a trial on the merits would be conducted"). This "close look," or "rigorous analysis," is not meant as an opportunity to prejudge the merits of the case, but is instead intended to give the court a realistic sneak preview of what trial of the issues will entail.
Beware of Judicial Exceptions to Federal Rule of Evidence 407
May 26, 2005
As you prepare for your upcoming product liability trial, things could not seem any better. You have qualified experts waiting to testify that your client's product is not defective. The client is credible, well established, clearly safety conscious and responsible. Throughout lengthy pretrial depositions, your client has never denied ownership or control of the product, and never claimed that purported safety measures suggested by the plaintiff were not feasible. He claims only that the measures would have been inconsequential based on the facts of the case. Therefore, it is your impression that the warning label your client added to the "Super Widget" subsequent to the accident will never be presented to the jury based on the protections of Federal Rule of Evidence 407, a conclusion the judge will surely come to as she flips through your motion in limine.
