Creative Representation | Expert Litigation

From the Chair . . . – by Stephen C. Steinberg

To the members of the lawyer referral and information service (LRIS) community across the country, I want to say that it is a great honor and a privilege to serve as the Chair of the ABA Standing Committee on LRIS for the coming year.

Trying a Trade Secret Case: A Road Map – by Benjamin K. Riley

Trade secret trials challenge and engage all of a trial lawyer’s essential skills and training. Dealing with state-of-the-art technology–intricate circuit designs, sophisticated manufacturing processes, or highly complex formulas–is often a huge challenge, but there are other pitfalls for the unaware lawyer. Special care must be given in these cases to issues of disclosure, discovery, the preparation of witnesses, the handling of experts and juries, and the use of graphics and technology in the courtroom. With legal and other barriers being erected in patent litigation and with the recent passage of the federal Defend Trade Secrets Act of 2016, trade secret cases have moved to the forefront of technology litigation. Trade secrets litigators must understand the unique and critical strategies, requirements, and hazards presented by the trial of a technical trade secret case.

Despite Successes in Fending Off Claims Based on Actual Authority, Franchisors Still Face Difficulties in Defending Claims Based on Ostensible Authority – by Charles G. Miller

The recent settlement last year of a class action against McDonald’s Corp. for $3.75 million based on claims that McDonald’s Corp. was liable for Labor Code violations of its franchisee brings home the dilemma that many franchise companies are facing. The settlement is the culmination of a disturbing trend in franchise vicarious liability cases that has emerged in the past several years, where the courts have blindly accepted ostensible authority arguments to defeat what should have been summary judgment motions in the franchisor’s favor on the issue of ostensible authority. This article briefly discusses the legal landscape and offers possible drafting solutions to the business lawyer.

Supreme Court’s TC Heartland Decision Will Change Geography of Patent Litigation – by W. Paul Schuck

The Supreme Court has overruled decades-old Federal Circuit precedent regarding proper venue for patent infringement cases in TC Heartland v. Kraft Foods Group Brands.

Dine & Dash Arbitration Style: What Happens When One Side Doesn’t Pay the Arbitrator – by co-author Charles G. Miller

Ever since Congress enacted the Federal Arbitration Act, it has been the national policy of the United States to favor arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). Where an agreement contains an arbitration clause, there is little a party can do to resist or avoid arbitration; however, this strong presumption of arbitration may have a small kink that is allowing parties to end up in court, despite the presence of a valid arbitration clause. The Ninth Circuit's recent decision in Tillman v. Tillman, 825 F.3d 1069 (9th Cir. 2016), has caused some to question if there is a new way for parties to avoid the power of an arbitration clause: simply refuse to pay a party's share of the arbitrator's fees.

Catch the Conscience! – Scripting a Winning Opening Statement – by Benjamin K. Riley

The opening statement is your first and perhaps best opportunity to convince the jury that your client should win. The jurors know very little about the case, are anxious to get started, and give you their full attention. Their impression of you will probably be set by the time you finish your opening. Opening is the time to establish the jurors’ expectations, start to develop a bond with them, and whet their appetite for your case.

Business as Usual: Email Evidence and the Business Records Exception in the Ninth Circuit – by Jayne Laiprasert

At a time when businesses are increasingly utilizing more ephemeral methods of communication such as chat, text, and instant messaging, email has become the standard form of business communication.

Antitrust Agencies’ “Guidance for Human Resource Professionals” Threatens Criminal Prosecution – by John F. McLean

On October 20, 2016, the Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) published their “ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS” (“GUIDANCE”). The GUIDANCE is “intended to alert human resource (HR) professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws.” The DOJ and FTC have brought a wide variety of civil cases involving employer agreements.

Northern District of California Amends Patent Local Rules to Focus Upon Damages – by W. Paul Schuck

Northern District of California Amends Patent Local Rules to Focus on Damages

The Line Between Bio and Technology: While Supreme Court Remains Silent, Federal Circuit Provides More Positive Guidance Regarding Patentability of Biotechnology – by W. Paul Schuck and Sony B. Barari

Bartko Zankel Bunzel Report - The Line Between Bio and Technology