DelayEn banc court sidesteps high court

In Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1974 (2014) (post here), the Supreme Court ruled that the defense of laches — unreasonable delay in bringing suit — does not preclude recovery of damages for copyright infringement during the usual statute of limitations period (three years under the Copyright Act). Does the same rule apply to patent cases?

The en banc Federal Circuit held last week, by the smallest of margins (6-5), that Petrella does not govern cases under patent law. Defendants may thus cite a patent holder’s delay in filing a lawsuit as a ground for reducing or barring damages within the six-year pre-suit period that patent law generally allows.
Continue Reading Laches Can Limit Patent Damages, En Banc Federal Circuit Rules

imageBetter results

Lawyers who like to handle disputes on a basis that shares risk with their clients often prefer the speed and lower cost of arbitration. The process has its drawbacks; some people worry about fuzzy standards and the lack of review for legal errors. And some general counsel even swear that it costs just as much and takes every bit as long as a lawsuit.

To which I say: hire somebody who will work on a contingent-fee or hybrid basis. You’ll get better, more efficient results faster.

But sometimes courts render rulings that seem to put arbitration into a second-class legal stratum, a minor league of law, a dustbin of dispute resolution. The Eighth Circuit did such a thing just this week.

Continue Reading The Dustbin of Dispute Resolution

Don't Be LateFocus on substance over procedure

The Supreme Court just vacated a judgment that enforced a six-year statute of limitations against beneficiaries of a employer savings plan.

The ruling reinforces the view that this Court feels little love for limitations defenses. It suggests the Court prefers getting to legal substance.

Claims under ERISA

The Employee Retirement

The U.S. Supreme Court today upheld a battery claim against the federal government for botching cataract surgery on a U.S. Navy veteran.

The 9-0 Court ruled that the Gonzalez Act limited the ban in the Federal Tort Claims Act on claims for certain intentional (and intentional-ish) torts such that it wouldn't bar claims for "malpractice committed by

With the U.S. Supreme Court making the test for class actions tougher, you may see a short-term increase in denials of class treatment. You may as a result also witness a surge in class members' filing cases where they assert the now-dead class claims on an individual basis.

But what if — as often happens