The 10 Bits Of Legal Advice Every Tech Client Should Get ' On Day One
May 30, 2006
You've seen it so many times: New tech clients have great dreams. They're always sure that their invention will make millions, as soon as you, their attorney, introduce them to people who can provide the funding that will develop, market and advertise the invention.<br>Counsel, unfortunately, must play their role, and discharge their responsibilities, and end these dreams with a splash of reality. This is the way of the world: While some startup firms will taste success, most, for a host of reasons that fit each company according to the company's situation, will not. <br>So as a new client sits across your desk, what advice must you give? Below is my take on the e-commerce advice that counsel must dispense, whether or not the client wants to hear it ' including how to work best with counsel to get results at a reasonable cost.
Antitrust Liability For Joint Ventures
May 30, 2006
The term 'joint venture' encompasses a wide range of business combinations, some of which are simply contractual agreements between independent parties, others of which involve the creation of new entities through consolidation, and some of which involve both integration and contractual agreements. Because joint ventures comprise such a diverse array of business structures, they often defy easy characterization for antitrust purposes: Is a venture best viewed as a merger? A price-fixing agreement? Something in between? This characterization problem contributed to significant confusion in the courts over the proper scope of antitrust liability for joint ventures. <br>At one time, courts routinely declared unlawful a variety of joint ventures, many of which were plainly pro-competitive. The Supreme Court's decision in <i>Texaco, Inc. v. Dagher</i>, clarifies the application of the antitrust laws to joint ventures, and narrows the scope of potential liability for these types of business combinations.
The Absolute Priority Rule
May 30, 2006
Debtors in bankruptcy cases have long sought to make distributions to old equity without running afoul of the absolute priority rule. Time and again, debtors' efforts to leave old equity with value in a reorganized entity have been challenged in the appellate courts, and often in the Supreme Court. A proposed distribution to old equity in the complex Armstrong World Industries (AWI) case was struck down recently by the U.S. Court of Appeals for the Third Circuit Court. <i>In re Armstrong World Indus., Inc.</i>, 432 F.3d 507 (3rd Cir. 2005).
What Do You Want To Read?
May 26, 2006
We want to know how we can make this newsletter an even better resource for your professional needs. Are we covering all you want to see? Are there sections you would like to see enhanced or replaced?<br>Your views and opinions are essential in our effort to continue to provide you with the top notch News, Strategy and Analysis you have come to expect from Law Journal Newsletters.<br>Help us help you! Please click <a href="http://www.surveymonkey.com/s.asp?u=604771980045">here</a> to complete a short survey or type the following URL into your browser: http://www.surveymonkey.com/s.asp?u=604771980045.<br>Your answers will assist us in making this an even better newsletter for you! Thank you.<br>Regards,<br>Colin Graf<br>LJN Marketing Director
What Every U.S. Employer Should Know About Workplace Privacy
May 15, 2006
The U.S. privacy arena is a minefield for employers. The United States has no omnibus employee privacy law. Instead, employers are faced with a patchwork of privacy laws that they must piece together to avoid legal liability. This article focuses on the key privacy issues employers in the U.S. must confront.
Case Notes
April 28, 2006
Recent rulings of interest to you and your practice.
Jury Hits Merck with $9M in Punitives
April 28, 2006
On April 11, a jury in Atlantic City, NJ, ordered Merck & Co. to pay $9 million in punitive damages to a user of Vioxx, finding the drug maker knowingly withheld data from federal regulators about the painkiller's cardiovascular risks. Merck withdrew Vioxx from the market in 2004 when a study showed it doubled heart attack risk after 18 months of use. The Atlantic City trial was the first involving plaintiffs who had used Vioxx longer than that period of time.
PA Court Declines to Apply 'Heeding Presumption' to Pharmaceutical Failure-to-Warn Cases
April 28, 2006
<b><i>Part One of a Two-Part Series.</i></b> Last December, the Pennsylvania Superior Court handed a sharp blow to pharmaceutical liability plaintiffs' lawyers in the state who have consistently argued that a 'heeding presumption' should apply to their failure-to-warn claims and, in effect, relieve them of the burden of proving causation. A unanimous three-member panel upheld the decision of the trial court awarding summary judgment to the defendant because the plaintiff 'presented no evidence that a different warning would have changed [the prescribing physician's] decision to prescribe [the drug at issue] for Appellant.' <i>Lineberger v. Wyeth</i>, 2006 PA Super. 35, at *24 (Pa. Super. Ct., Feb. 23, 2006).
Practice Tip
April 28, 2006
The Bush administration has adopted a new tactic in its ongoing efforts to create liability shields on behalf of various industries, including the pharmaceutical industry. Despite a number of failed legislative attempts at tort reform, on Jan. 18, the administration quietly enacted its own liability-shield agenda under the guise of federal pre-emption. A new U.S. Food and Drug Administration ('FDA') rule titled <i>'Final Rule: Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products'</i> (21 C.F.R. 201, 314 and 601), which goes into effect on June 30, 2006, extensively modifies the format of prescription drug information, commonly referred to as the 'package insert' and published in the Physician's Desk Reference', and will come with an attempt at broad federal pre-emption.
Putting Plaintiff to the Test: The Crashworthiness Doctrine
April 28, 2006
<b><i>Part Two of a Two-Part Series.</i></b> The plaintiff's burden of proof in a 'crashworthiness case' is dramatically higher than in the standard product liability action. In the automotive context, these cases are sometimes referred to as 'second collision' cases because the manufacturer's liability is based not upon the 'first collision' between the vehicles involved in the accident, but upon the 'second collision' comprised of the physical contact made between the plaintiff's body and the vehicle's interior. Generally, in a crashworthiness case, the plaintiff must prove that the alleged defect enhanced his or her injuries beyond what would have otherwise been sustained in the collision. A failure to meet the weighty burden of proof in a crashworthiness case can be fatal to one's case. The first part of this two-part series discussed a recent New York case, <i>Katz v. Ford Motor Company and Hempstead Ford, Inc.</i>, No. 18933-00 (N.Y. Sup. Ct., Suffolk Cty., Dec. 7, 2005), and the definition of crashworthiness. The second part addresses whether the crashworthiness doctrine applies to a 'failure to deploy' case, how to charge the jury, and how to apportion the damages among tort-feasors.
