Supreme Court Hands Partial Victory to Supporters of Federal Pre-emption
On April 27, 2005, the U.S. Supreme Court, in a 7-to-2 decision, handed supporters of federal pre-emption a narrow victory in <i>Bates v. Dow Agrosciences LLC</i>, __U.S.__, 125 S.Ct. 1788, __L.Ed.2d__ (2005). In <i>Bates</i>, the majority's decision endorsed the principal that state law fraud and failure-to-warn claims may be pre-empted in appropriate circumstances under the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA" or "Act"), 7 U.S.C. §136 <i>et seq</i>. The <i>Bates</i> majority held that where such state law claims impose requirements on an insecticide manufacturer that are "in addition to or different from" labeling or packaging requirements under FIFRA, the claims will be barred by FIFRA's pre-emption provision, 7 U.S.C. §136v(b).
Case Notes
Highlights of the latest product liability cases from around the country.
Practice Tip: Expert Preparation ' The Ipse Dixit Problem
Until 1997, when the Supreme Court decided <i>General Electric v. Joiner</i>, 522 U.S. 136, (1997), I had never heard of the term <i>ipse dixit</i>. Now, almost every month I read a decision in which that phrase appears. <i>Ipse</i>, in Latin, is "he himself"; <i>dixit</i>, "to say." Its dictionary meaning is "an unsupported assertion, usually by a person of standing."
Challenging Insurers' Efforts to Obtain Insureds' Privileged Communications
Insureds embroiled in litigation with underlying claimants frequently are confronted with demands from their insurers that can place their litigation position at risk. One issue that often arises is whether an insured must and should provide requested privileged materials to its insurer in connection with the insurer's coverage investigation or in coverage litigation. Where the insurer has accepted the insured's defense of litigation and thus its interests appear to be aligned with the insured in a successful resolution of the underlying matter, the insured may have difficulty in refusing to provide certain materials. However, as is often the case, 1) an insurer will reserve rights and then seek all information relevant to the underlying matter, regardless of its privileged status, or 2) deny coverage and seek that information in the context of coverage litigation. Insureds should be aware of possible risks that can be created if they comply with requests for privileged information, and that despite the insurers' claims of a "common interest" or that the privileged information is "at issue," significant case law protects these materials from production.
The MLF 50: Highlights
The MLF 50 ' The Top 50 Law Firms in Marketing and Communications appeared in a special September/October issue of MLF. Here are some of the highlights of that issue, including mention of the top five firms.
Investigative Discovery: Using Technology to Build Case Strategy
During a recent assignment, we were asked to assist a client in evaluating potential litigation involving conspiracy and fraud claims arising out of a complex multi-party transaction. For the task, the client arranged for us to have access to approximately 35 gigabytes of e-mail data restored from a critical time period. With the equivalent of approximately 2 million pages needing review, we immediately faced two contradictory challenges. First, how to effectively review a large body of data in a short time while keeping staffing tight and costs down. Second, and equally important, how to leverage our existing knowledge of the issues to identify and drill down deep into significant documents, test our legal theories and strengthen the strategic recommendation our client was seeking.
Deconstructing The Grokster Decision
Serendipity used to be a popular notion. While the term may have fallen from favor, the concept itself still makes appearances ' often surprising ones (as one would think). And while serendipity is not something you would expect to be associated with the U.S. Supreme Court, that is precisely where it was last sighted, specifically in the June ruling in <i>Metro-Goldwyn-Mayer v. Grokster</i>.
