Canada Strikes at Spam
May 25, 2005
Canada's national spam task force delivered its report on May 17 to Industry Minister David Emerson. <i>Internet Law & Strategy</i> Board of Editors member Michael Geist was a member of the task force and served as the co-chair of the law and regulatory working group. This article discusses the task force's report, recommendations and impact.
Electronic Waste Recycling Laws Challenge the Leasing Industry
May 02, 2005
An increasing number of state legislatures are deciding that there is a need to recycle computer components and other electronic waste, also known as "e-waste," and thus are proposing diverse laws intended to encourage or require such recycling. Equally diverse, to the point of creating conflicts and confusion, are the ways in which the various state legislatures propose to raise the funds to pay for such programs. Two states, California and Maine, have enacted such legislation and, at press time, 14 states have proposed such legislation. On Jan. 1, 2005, California's law was the first to go into effect. This article describes the Equipment Leasing Association's policy on legislation requiring advanced recycling fees. The article reviews California's new e-waste law and highlights some of the concerns to the leasing industry with regard to California's law.
U.S. Supreme Court Justices Offer Mixed Views During Arguments in Landmark 'Grokster' Case
April 29, 2005
WASHINGTON, DC ' The controversy over whether developers and distributors of peer-to-peer file-sharing software should be found liable for contributory and vicarious copyright infringement has been described as the most important copyright case for the entertainment industry in two decades ' or as an issue that Congress ultimately will decide. (That the underlying unlicensed downloading and uploading of entertainment content by consumers is direct infringement has already been made clear by courts.) To this observer in the court's press section, questioning by the U.S. Supreme Court justices during the recent oral arguments in what is known as the <i>Grokster</i> case demonstrated no clear consensus among the justices.
Bit Parts
April 29, 2005
Recent developments in entertainment law.
Non-Debtor Insurance in Asbestos Bankruptcies: What Is the Future?
April 28, 2005
In the few short years since <i>Fuller-Austin</i> was decided, the use of "prepack" bankruptcies has become a favored approach to resolving asbestos liabilities, often with the threat of a "<i>Fuller-Austin</i> result" as a hammer over the insurers asked to pick up the tab. Here's the drill: A policyholder uses section 524(g) of the Bankruptcy Code to channel its present and future asbestos liabilities to a trust; under policyholder's reorganization plan, the trust is funded in significant part with insurance rights; the insurers cannot object to the plan because it is said not to affect their interests; yet plan confirmation triggers coverage for the entire liability in an amount (often a nine or 10 digit amount) to be determined at a later date. <i>See Fuller-Austin Insulation Co.</i>, 2002 WL 31005090 (Cal. Sup. Ct. Aug. 6, 2002) (appeal pending). The pressure this <i>Fuller-Austin</i> play puts on insurers leads many to settle their coverage obligations ' often a rational response to a high-stakes game in which insurers have few sources of leverage.
Negotiating the Software Contract
April 28, 2005
Attorneys live and work in a world of contracts. Usually, however, this expertise involves optimizing legal agreements for the firm's clients. But when a law firm enters into its own software contracts, it is presented with the unique opportunity to optimize a negotiation for its own benefit. Attorneys, more than most software buyers, are aware of the legal issues involved in an IT contract such as indemnity, limitation of liability, confidential information and warranties. However, there are a number of business issues for any software buyer to consider. The key is to anticipate which of these a software company might deem negotiable.
Horn v. Thoratec: FDA's Bold New Position on the Pre-emptive Effect of Product Approvals
April 28, 2005
By and large, the FDA has confined its participation to cases where it had specifically considered — and rejected — the plaintiffs' claims that a product's labeling or advertising should have included different language from that which was used. <i>See</i> Daniel E. Troy, <i>FDA Involvement in Product Liability Lawsuits,</i> Update: Food & Drug. L., Reg. & Educ. (Food & Drug Law Inst., Wash., D.C.), Jan./Feb. 2003, at 1. In 2004, however, the FDA submitted a brief in a state products liability action that signals the agency's willingness to be much more aggressive in protecting its jurisdiction from lay judge and jury determinations concerning a product's risk-benefit balance that conflict with the FDA's own determination of where that balance lies. <i>See Br. of Amicus Curiae U.S. Dep't of Justice, Horn v. Thoratec Corp.</i>, 376 F.3d 163 (3d Cir. 2004) (No. 02-4597) ("FDA Br.").
Practice Tip: How to Send Learned Treatises to the Jury Room
April 28, 2005
In product liability, toxic tort, and even medical malpractice litigation, the science in the relevant field is often a crucial battleground, and expert witnesses will do battle over treatises, journal articles, and the like. As every law student knows, scientific publications are inadmissible hearsay. Under the learned treatise rule, an expert witness may testify about scientific publications that have been qualified as learned treatises, but they do not come into evidence and so may not be published to the jury.
Case Notes
April 28, 2005
Highlights of the latest product liability cases from around the country.
Reductions in Punitive Damages Awards: Practice Tips
April 28, 2005
Our previous article in the March issue reviewed punitive damages awards since the U.S. Supreme Court's decision in <i>State Farm Mutual Automobile Insurance Co. v. Campbell,</i> 538 U.S. 408 (2003). This month we will look at the way the Court's directives impact pretrial activities, evidentiary issues, and jury instructions in our cases.
