BLT: May 2014

Business & Corporate

Our Mini-Theme: Recent Developments in Business and Corporate Litigation 2014

Patrick T. Clendenen

Welcome to the Business and Corporate Litigation Committee's annual mini-theme issue of Business Law Today. As the diverse articles of this edition show, the breadth of business litigation faced by today’s companies is staggering. So too is the attendant cost and risk

Business & Corporate

Recent Developments in Business Commercial Courts in the United States and Abroad

Jurisdictions around the United States continue to turn to specific business courts or to the creation of specialized commercial dockets as ways to efficiently address complex commercial business disputes, and in many instances, in an effort to attract business investment in that jurisdiction. Not to be left out, jurisdictions around the world are creating similar programs in order to encourage commercial development.

Business & Corporate

Pleading the Class Case: Testing Class Allegations on the Pleadings After Comcast

Andrew B. Murphy

This article explores how courts have responded to motions to dismiss or strike class action allegations on the pleadings after the Supreme Court’s decision in Comcast v. Behrend. In particular, it examines how, even though Comcast decreases the probability that plaintiffs will obtain class certification, courts remain reluctant to dismiss class allegations on the pleadings.

Business & Corporate

The Year in E-Discovery: Not the Same Old Song

Robert J. Witte

Electronic discovery jurisprudence continued its rapid evolution in 2013. This article will focus on a few key issues worthy of continued attention into 2014.

Business & Corporate

The Decline and Fall of Equitable Defenses Under ERISA

James P. Baker

In US Airways, Inc. v. McCutchen, the Supreme Court resolved a circuit split concerning whether principles of fairness could trump language contained in an ERISA plan. Equitable defenses cannot overcome the simple fact that “[t]he plan, in short, is at the center of ERISA.”

Business & Corporate

The Five Most Publicized Patent Issues Today

Neil C. Jones

With the renewed focus by Congress, the president, and the Supreme Court on patent law, this article looks at today's five most publicized patent issues. Among those issues are three Federal Circuit cases that will be, or that have been, argued at the Supreme Court in the spring of 2014, new legislation being considered by the Obama administration to curtail patent infringement litigation, and recent legislation that has created a clear mechanism for allowing issued patents to be attacked more frequently than ever before.

Business & Corporate

Taking Discovery in the United States for Use in Arbitration Abroad: Open Questions Under 28 U.S.C. § 1782

Stuart M. Riback

Under 28 U.S.C. § 1782, litigants in proceedings overseas may seek discovery in the United States. Although it has long been clear that Section 1782 discovery is available for judicial and regulatory proceedings, it is much less certain whether Section 1782 discovery is available for arbitrations abroad. There are at least four different views on the matter. This article surveys and analyzes the different approaches, and offers some practical suggestions for whether and how to see such discovery.

Business & Corporate

It’s Not Simply a Matter of Opinion: Pleading Standards Under Section 11 for Untrue or Misleading Opinions

Samuel L. Moultrie

On March 3, 2014, the United States Supreme Court granted certiorari in Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund to address the recent circuit split concerning the pleading standards applicable to claims under Section 11 of the Securities Act of 1933 for untrue or misleading statements of opinion. This article examines the appropriate pleading standards under Section 11 and argues that a plaintiff need not plead or prove “subjective falsity” to recover damages under Section 11 for untrue or misleading statements of opinion.

Business & Corporate

KEEPING CURRENT: Daimler AG v. Bauman, et al., 134 S. Ct. 746 (2014)

In Daimler AG v. Bauman, et al., the Supreme Court revisited general jurisdiction over foreign defendants. The Court held that a foreign defendant was not subject to general jurisdiction in California in a suit for injuries and acts occurring outside of the United States, as general jurisdiction is found only where the defendant is “at home.”

Business & Corporate

KEEPING CURRENT: Medtronic, Inc. v. Mirowski Family Ventures, LLC, 134 S. Ct. 843 (2014)

On January 22, 2014, the U.S. Supreme Court issued its decision in Medtronic, Inc. v. Mirowski Family Ventures, LLC, deciding unanimously that the patent holder bears the burden of proving infringement, even when a licensee seeks a declaratory judgment that it does not infringe the licensor’s patents.

Business & Corporate

DELAWARE INSIDER: When Business Judgement Isn’t Enough: The Impact of the Standard of Review on Deal Litigation

Stephen B. Brauerman

Three recent decisions of the Delaware Court of Chancery, all written by Vice Chancellor Laster, demonstrate the importance and impact of the application of the standard of review to the success of post-transactional shareholder litigation.

Business & Corporate

ETHICS CORNER: In-House Counsel Ethics: Practicing Law as a Square Peg

Nicole I. Hyland

When it comes to ethical guidance, in-house lawyers get the short end of the stick. The Model Rules of Professional Conduct, which most U.S. jurisdictions have adopted in some form, are more compatible with law firm practice than in-house work.

Business & Corporate

MEMBER SPOTLIGHT: Interview with the Honorable Gail A. Andler

Judge Gail A. Andler has been a California state trial judge since 1994. She currently sits on the Complex Civil Litigation Panel of the Superior Court, Orange County, and is the immediate past President of the American College of Business Court Judges. She served two terms as the Presiding Judge of the Superior Court's Appellate Division.

Business & Corporate

Inside Business Law (May 2014)

Since February 2013, the In the Know Subcommittee has been organizing free CLE programs for Business Law Section members in the form of a series of In the Know webinars, presented by various committees within the Business Law Section. Each In the Know program is available, at your convenience, through the Business Law Section’s website. This month’s Inside Business Law highlights the In the Know programs.