Litigation Practice Group Podcast Mark Chenoweth June 28, 2017
On April 17, 2017, the Supreme Court heard oral argument in California Public Employees’ Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees’ Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund’s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed.
The question before the Supreme Court was whether the filing of a putative class action serves, under the American Pipe & Construction Co. v. Utah rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. On Monday, the Supreme Court upheld the Court of Appeals dismissal of the lawsuit. Mark Chenoweth of the Washington Legal Foundation joined us to discuss the decision and its significance.
Litigation Practice Group Podcast
- Mark Chenoweth, General Counsel, Washington Legal Foundation
Microsoft v. Baker involved a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.
On Monday, June 12 the Supreme Court unanimously reversed the ruling of the Ninth Circuit and remanded the decision. Ted Frank of the Competitive Enterprise Institute joined us to discuss the holding and its significance.
Federalism & Separation of Powers Practice Group Podcast
- Theodore H. Frank, Senior Attorney, Director, Center for Class Action Fairness, Competitive Enterprise Institute
Karen Harned June 07, 2017
In 2014, the Supreme Court unanimously held in Daimler AG v Bauman that, as a general matter, companies could only be sued in the state in which they are headquartered and incorporated or the plaintiff is injured. Nonetheless, the Supreme Court in BNSF Railways Co. v. Tyrell was asked to define, once again, when a company has a substantial and continuous enough presence in a state to provide “general jurisdiction.” In BNSF, plaintiffs brought suit in Montana state court although neither were injured in that state and BNSF is headquartered in Texas. On May 30, the Supreme Court, in an 8-1 decision issued by Justice Ginsburg reaffirmed its holding in Daimler. In BNSF, it found that -- barring an exceptional case -- companies may only be sued where they are headquartered/incorporated or the plaintiff is injured. Karen Harned discussed the BNSF opinion and its impact on business and the plaintiff’s bar.
Intellectual Property Practice Group Podcast
- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
On May 22, 2017, the Supreme Court handed down its unanimous opinion in the closely-watched TC Heartland LLC v. Kraft Foods Group Brands LLC case. The patent venue statute provides that a domestic corporation may be sued for patent infringement anywhere the defendant “resides,” and the question before the Court was whether that rule incorporates the broader definition of corporate residence found in the general venue statute. The district court and the Court of Appeals for the Federal Circuit both held that it did, thus giving patent owners more choices of where they could sue for infringement. However, the Supreme Court reversed, holding that a corporate defendant only “resides” in its state of incorporation.
While the Supreme Court rested its opinion solely on the statutory language and its own precedent interpreting it, many of the arguments raised in the amicus brief supporting both sides focused on the policy implications. In particular, the briefs argued that the Court should consider the effect its decision would have on certain patent assertion entities (PAEs) or “patent trolls”—non-practicing patent owners who litigate their patents, oftentimes in the Eastern District of Texas. Whether such arguments persuaded the Court is unclear, though it is clear that the Court’s narrow rule for where patent owners may sue will change the litigation landscape for practicing and non-practicing entities alike.
Litigation Practice Group Podcast
- Mr. William J. Brown, Jr., Managing Partner, Brown Wegner LLP
- Prof. J. Devlin Hartline, Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University
In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability” that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court’s decision.
- Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP
- Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP