Supreme Court Chooses the Middle Ground in the eBay Case
June 28, 2006
The landmark decision of the Supreme Court in <i>MercExchange LLC v. eBay</i>, 547 U.S. __ (2006), has left many inventors and patent owners disappointed, as the Supreme Court sided with eBay and set aside the prior decision of the Court of Appeals for the Federal Circuit ('CAFC'). A closer reading of the decision, however, seems to indicate a balanced approach that gave both sides something to brag about.
Practice Tip: Will the Real Drug Manufacturer Please Stand Up?
June 28, 2006
You are defending a manufacturer in a pharmaceutical product liability action. The plaintiff has testified that she obtained a prescription from her doctor for your client's medication and filled it at a reputable, national chain pharmacy. The doctor's records confirm that the prescription was written and the pharmacy records confirm that it was filled with your client's product. Normally, that scenario would dispel any doubts concerning the adequacy of product identification and you would identify other fronts on which to defend.
Court Watch
June 28, 2006
Highlights of the latest franchising cases from around the country.
Sona Squares Off Against Franchisees
June 28, 2006
Sona Laser Centers and Sona MedSpas is locked in an increasingly bitter dispute with some of its original franchisees, involving not only typical franchise issues but also the franchisees' allegations that at least one of the services they offer to customers, a laser treatment for hair removal, does not work. While franchisees have received considerable favorable publicity in the fight to date, Sona executives say that the actions of the franchisees belie some of their complaints, and Sona remains committed to building a national chain of spas.
When Is Your Doctor Not Your Doctor?
June 28, 2006
Modern understanding of medical malpractice is based upon the presence of a physician-patient relationship. This specific relationship gives rise to a special duty on the part of the physician, the breach of which is one of the requirements for finding professional negligence. Although this consensual relationship is often discussed and thought of in terms of an express contract ' that the relationship is created when professional medical services are 'offered' voluntarily and those services are 'accepted' voluntarily by another ' most courts have held that the creation of the relationship need not satisfy the formalities of a contract.
Deferred Prosecution Agreements: What Questions Should We Be Asking?
June 28, 2006
In the post-Enron era, corporate counsel are seeing more government investigations that lead to 'deferred prosecution agreements' (DPAs). In these arrangements, the government formally accuses a company of criminal conduct, but agrees to hold the prosecution in abeyance pending the company's efforts to make amends. These cases include such well-known names as KPMG, Computer Asso-ciates and Bristol Myers Squibb. <br>Why are these settlements suddenly coming onto the scene? In a sense, they are not entirely new.
Is Half a Summer Associate Better Than None?
June 28, 2006
In a February <i>A&FP</i> article titled 'Associate Overcompensation?' I ventured the opinion that competition for the most promising new associates was perhaps needlessly intense, given that law firms aren't very good at identifying which law school graduates actually will turn into excellent lawyers. The following interesting report seems to invite essentially the same question with regard to law student summer associates.
Executive Compensation: It's Hot and About to Get Hotter
June 28, 2006
With the Enron (Lay/Skilling) trial having concluded and the business community eagerly anticipating more reports recommending SOX ' 404 relief for smaller companies, executive compensation issues seem far removed, except for the occasional (or not so occasional) headline. Don't be lulled, however, into a false sense of security. Executive compensation is about to take center stage as THE latest 'corporate governance' topic.
Europe's Reaction Against the SOX Anonymous Whistleblowing Rule
June 28, 2006
Watching the reaction of European data protection authorities to the anonymous whistleblower requirement set forth in ' 304 of the Sarbanes-Oxley Act of 2002 (SOX) has been like watching an ongoing heavyweight prize fight. In one corner, representing the U.S. and its recent history of corporate frauds, stands the SOX champion determined to use all means to prevent future frauds. In the other corner, representing Europe's 20th-century history, which unfortunately includes use of anonymous 'informants' to 'denounce' and silence or kill opponents of repressive regimes in Germany, France and elsewhere, stands the European Union (EU) data protection champion resolved to protect what Europeans view as the fundamental human right of privacy. The SOX and EU champions have exchanged blows, neither has given up much ground, and the match appears to be headed into the late rounds. The audience of multinational corporations required to comply with both SOX and EU data protection laws can only watch, do their best to implement anonymous whistleblower mechanisms in compliance with both SOX and EU privacy law, and wait until the contest is ultimately decided.
Branches, Boutiques And Client Conflicts
June 28, 2006
As analyzed in several <i>A&FP</i> articles, a major strategic goal of many law firms is to attain and maintain dominance for specific practice areas in a legal market. One downside of dominance in a practice area, however, is that a firm may increasingly need to turn away work in other practice areas due to client conflicts.<br>From the following excerpts of recent news analyses from <i>A&FP</i>'s ALM affiliates, it seems reasonable to conjecture that conflict-related attorney movements between firms help maintain a healthy level of competition in legal services that excessive dominance might otherwise undermine.
