U.S. District Judge Mitchell S. Goldberg ruled on August 28, 2017 that a class of 24 to 25 direct purchasers did not satisfy the “numerosity” requirement of Rule 23(a)(1) for class certification. Florence Drug Co. of Florence, Inc. v. Cephalon, Inc., No. 06-c-1797, ECF 1072 (E.D. Pa. Aug. 28, 2017), on remand from In
Bad News for Price-Fixers
A price-fixer cheats his buyers, but he may also do something worse — frighten them into doing nothing about it.
Last week, the Third Circuit made a ruling that will calm victims’ fears. Instead of bringing a claim they don’t want to prosecute, the court held, they may freely assign it to someone…
Rewards of RICO
The Third Circuit’s decision in In re Avandia Marketing, Sales Practices & Product Liability Litigation, No. 14-1948 (3d Cir. Oct. 26, 2015), accepts a path-breaking fraud-on-the-intermediary theory under the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), which allows you to recover three times your actual damages plus reasonable attorneys’ fees. Expect more cases like this.
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What the FTC Win on Data Breaches Means
Unfair methods and data breaches
The Third Circuit has ruled that exposing credit card information to hackers can count as an “unfair method of competition” under the Federal Trade Commission Act. Federal Trade Comm’n v. Wyndham Worldwide Corp., No. 14-3514 (3d Cir. Aug. 24, 2015).
The decision opens the way for the FTC to seek injunctive and disgorgement remedies from companies whose cyber security measures fall short. It also has the collateral effect of bolstering consumer lawsuits for damages under the “Little FTC Acts” of California and 27 other states.
Any business that uses an online computer to store customer information should take notice.
Continue Reading What the FTC Win on Data Breaches Means
Ambiguity It Created May Save Goldman Sachs Millions in Legal Fees; “Vice President” Doesn’t Count as “Officer”?
May a Delaware firm whose bylaws promise to pay the legal bills of a group of people — all of its "officers" — avoid paying on the ground that it failed to make clear who belonged in the group?
Shouldn't the rule that governs in contracts cases — that a court will construe an ambiguity against …
IP Plaintiffs Lose Leg Up for Injunctions in Third Circuit
For a long time, federal courts presumed that misuse of someone's intellectual property — things like patents, copyrights, and trademarks — would cause the owner "irreparable harm". The bad acts, the courts believed, would ipso facto injure the IP owner in ways that mere money could not fix.
Change in the air
Third Circuit Judicial Conference to Explore Current Issues in MDL Cases and Class Actions
If you find yourself this in the neighborhood of Hershey, Pennsylvania — the Sweetest Place on Earth — you may want to see if you can sneak into a two-hour discussion of "Current Issues in Multidistrict Litigation and Class Actions". The event kicks off the first full day of the Third Circuit Judicial…
What Happens When Clients Seek and Use Legal Advice to Commit Crimes?
You know already that lawyers should assume that any memos and emails they send clients will show up on the front page of The Wall Street Journal or The New York Times. You may not know that the same goes for purely oral advice. A recent ruling by the Third Circuit shows why.
Does Offset = Recovery?
The patent assignment says the assignor — the Inventor — will receive a share of any "recovery of damages" from litigation of the heart-stent patent that he assigned.
The assignee — let's call it Scimed — sues an infringer — which we'll call Cordis. Cordis in turn brings an action against Scimed, accusing it of…
No Means No, Third Circuit Holds
Dell argued that it could keep robo-calling a woman's mobile phone with robo-messages about her Dell debt until Hell Froze Over.
The fact that she'd withdrawn her consent (from a Happier Time, no doubt – one that involved getting boxes full of neat computer stuff) didn't matter to the Dellsters.
"Hell hasn't frozen over yet", their…