Image by Open Grid Scheduler / Grid Engine

Reuters is reporting that a massive California verdict in a lawsuit alleging Johnson & Johnson’s talc-based products cause cancer has opened a new front in the litigation.

“The $417 million award by California jury to a California resident suggested so-called forum-shopping, in which parties seek to file cases in whichever jurisdictions seem most favorable, may not be the main problem facing J&J as it wrestles with some 4,800 outstanding talc lawsuits,” according to reporter Tina Bellon.

Previous talc cases, all tried in the same state court in St. Louis and involving out-of-state plaintiffs, totaled $307 million.

Read the Reuters article.

Join Our LinkedIn Group.

Aaron Davis, a partner in the Minneapolis law firm Patterson Thuente, was placed on leave after the firm learned that Davis owned a neo-Nazi record label.

Minneapolis City Pages lists some of the albums and songs on Davis’ Behold Barbarity Records and Distro, including “Kill the Jews” and “At the Dawn of a New Aryan Empire.”

In a post on the Above the Law site, Elie Mystal offers some commentary: “There are a lot of things you can do while being a neo-Nazi. You can start your own record label. You can buy tiki torches, freely and without prior restraint. But a private employer has no duty to hire you so you can menace the people you work with your genocidal views.”

Read the City Pages article.

Read the Above the Law article.

Forbes contributor Mark A. Cohen writes about his recent ABA address to a group of general counsel on the spate of high-profile scandals and regulatory imbroglios that resulted in no small part from the failure of GC’s to discharge the guardian/conscience role.

In the article, Cohen writes that “general counsel — and large corporate departments — are law’s petri dish. They are reconfiguring the boundaries and expanding the expectations of what it means to be an effective corporate lawyer.”

Cohen cites what he calls of trinity of powerful macroeconomic forces — “globalization, technology, and the global financial crisis changed the way corporations conduct business and accelerated the metamorphosis of the GC role into what it is today.”

Read the Forbes article.

Join Our LinkedIn Group.

The fall in oil prices has driven energy executives to focus on reducing production costs, according to Schneider Electric. However, are the benefits accrued from this price-influenced cost cutting only temporary or can they be made permanent and sustainable?

Eric Koenig of Schneider Electric will present will discuss that question during a webinar Oct. 3, 2017, at 9 a.m. CDT.

“Experience evidences the link between influence over costs and project stage. Each specific project lifecycle phase – from conception and front-end design to daily operations-incorporates specific solutions for maximizing profitability,” according to the invitation to the webcast. “Engineering and integration technologies designed to optimize existing architectures, increase production efficiency, and improve safety performance are currently available and are powerful tools for succeeding in today’s challenging marketplace. This webcast will explore how Oil & Gas companies can reinvent their control engineering processes, and leverage these tools to sustain and improve project delivery payback and operational efficiencies.”

During this session explore how to:

– Get up to 20% on CapEx and up to 25% on OpEx savings with a new power distribution approach
– Get up to 14% on CapEx and up to 9% on OpEx with an integrated process, power and safety management
– Implement virtual reality training simulators to secure higher uptime operations and to accelerate the training of Millennian new employees.
– Correct potential errors at earlier stages of the project with engineering simulation tools.

Register for the webinar.

Join Our LinkedIn Group

An article in the Government Contracts Insights blog on the website of Morrison Foerster discusses stays of award and performance during the pendency of a bid protest.

Partner Daniel Chudd and associate James Tucker cover stay of contract awards, stay of contract performance, Court of Federal Claims protests, and stay overrides.

In a later post, they will cover the substantive grounds of protest.

Read the article.

Kilpatrick Townsend recently published some notes on a presentation made by Silicon Valley-based Kilpatrick Townsend Counsel Alan Dow on issues in the intellectual property arena concerning consulting agreements.

In the article, Dow discusses four key takeaways: Consulting agreements make it possible for companies to own IP produced by consultants, work-for-hire clauses, conflicting obligations, and failure to protect trade secrets.

Read the article.

Join Our LinkedIn Group

Most arbitrations, and all commercial arbitrations, are creations of contract, and courts are generally required to enforce an arbitration agreement as they would any other contract, points out Samuel M. Tony Starr on Mintz Levin’s ADR: Advice From the Trenches blog.

Because the arbitration clause in a commercial contract is so critical, careful review of that clause surely must be a component of an enterprise’s risk analysis.

He offers 10 basic considerations that will help to guide that review.

Read the article.

Join Our LinkedIn Group

Some high-profile members of the Donald Trump circle found out the hard way recently that they somehow had missed one of the basic rules for dealing with the media.

In a post on the website of Muse Communications, Amy Boardman Hunt offers a reminder about the First Rule of Dealing with the Media: Assume you are on the record.

“If you want your discussion to be off the record, i.e. the information can’t be used or attributed to you, you must establish that by mutual agreement before the information is relayed. If the reporter doesn’t agree to make the information off the record, it’s not off the record,” she explains.

Read the article.

Uber Technologies Inc. may pay a price for withholding key evidence from Waymo when their trade secrets dispute goes to trial — the judge proposed letting the jury know the ride-hailing company’s lawyers didn’t “come clean,” reports Bloomberg Technology.

“I’m inclined to let the jury know what happened here,” U.S. District Judge William Alsup said Wednesday at a hearing in San Francisco, speaking to one of Uber’s lead lawyers. “You misled the judge time and time again.”

“Since the case was filed in February Alsup has repeatedly expressed frustration with lawyers at Morrison and Foerster, or MoFo, for making sweeping arguments that information sought by Waymo is protected by confidentiality provisions and out of its adversary’s reach,” writes Joel Rosenblatt.

Read the Bloomberg Technology article.

Join Our LinkedIn Group

Several large law firms have spoken out against President Trump’s remarks following the Charlottesville violence, denouncing the president for casting blame on both sides and making a moral equivalency between Nazis and those who opposed them, reports Above the Law.

Reporter Staci Zaretsky writes that those firms include Skadden Arps, Paul Weiss, Lowenstein Sandler, Wachtell Lipton, WilmerHale, Polsinelli, Arnold & Porter Kaye Scholer, Crowell & Moring, Latham & Watkins, Hogan Lovells, Akin Gump, and Greenberg Traurig.

Read the Above the Law article.

Reuters is reporting that U.S. authorities announced insider trading charges accusing seven people of generating more than $5 million of profit based on tips from a Bank of America Corp. employee about dozens of pending corporate transactions.

The alleged tipster, Daniel Rivas, who later worked at Royal Bank of Canada, and James Moodhe, the father of Rivas’ girlfriend, both pleaded guilty to charges of fraud, conspiracy, and making false statements to Federal Bureau of Investigation agents, report Brendan Pierson and Jonathan Stempel.

“Prosecutors said Rivas, who worked in Bank of America’s capital markets technology group, leaked material nonpublic information about potential mergers, acquisitions and tender offers involving clients and prospective clients more than 50 times to co-conspirators, who then traded on the tips,” according to the report.

Read the Reuters article.

Join Our LinkedIn Group

The 10th Annual Blickstein Group Law Department Operations Survey, in cooperation with Consilio, is the oldest research specifically covering law department operations. It is designed solely for the professionals who manage complex legal department operations for their companies.

The LDO survey was first created in 2008 to give law departments a consistent platform to benchmark themselves and shed light on the then-emerging profession of law department operations. In addition to being the original of its kind, as the industry has grown exponentially the LDO survey remains the most respected benchmarking tool in the space.

Participants are being sought for the survey. Only survey participants will receive a copy of the proprietary results.

The report will co ver such topics as:

• Compensation
• Legal Service Delivery Models
• Artificial Intelligence
• Technology and Cybersecurity
• Change Management

Participate in the survey.

It’s no secret that gender parity is lagging in the legal profession, with women making up just 18 percent of equity partners, according to the National Association for Law Placement, writes Amy Boardman Hunt for Muse Communications.

In the article, she discusses the practice of amplification: when a woman makes a key point, other women repeat it, giving credit to its author.

She writes that amplification is like a team sport: “Even better, for women who are reluctant to promote themselves, you can rest easy knowing that amplification isn’t tooting your own horn. Instead, you’re promoting other women (who, per your agreement, are promoting you in return).

Read the article.

Dykema announced the addition of Christopher M. Carlisle to its Corporate Finance practice group as a senior counsel in the firm’s growing Dallas office, which has now added four attorneys in the past two months. Prior to joining Dykema, Carlisle practiced at Locke Lord LLP before spending five years working as in-house transactional counsel at Dean Foods.

Carlisle’s practice is primarily focused on business transactions. He has experience in the creation and reorganization of business entities and equity investment structures, including partnerships, corporations and limited liability companies. In a release, the firm also said he also counsels clients in planning, negotiating and documenting different types of investment transactions, including mergers, acquisitions and asset purchases, as well as commercial lending. Carlisle also has experience in matters related to federal and state securities laws, and federal business income tax.

Carlisle spent several years as in-house counsel to a large, Dallas-based public company in the food and beverage manufacturing industry, where he provided advice on commercial transactions and regulatory compliance.

“Chris is a highly credentialed transactional lawyer who combines large firm training with meaningful in-house experience,” said Chris Kratovil, Managing Member of Dykema’s Dallas office. “We’re very excited to add him to our Dallas office.”

Carlisle earned a J.D. from the University of Michigan Law School and a B.A. from St. John’s College.

The iconic jewelry store Tiffany & Co. is a model for trademark enforcement, aggressively and successfully policing its brand in the courts. Last year, Tiffany filed a lawsuit against Costco Wholesale Corp., claiming that the warehouse giant sold more than $6 million of ersatz Tiffany engagement rings and improperly used the jeweler’s name on at least 200,000 in-store signs. This week Tiffany prevailed by winning a $19.4 million judgment in federal court.

Dallas lawyer Chris Schwegmann, a partner at Lynn Pinker Cox & Hurst who tries intellectual property cases, has been following the Tiffany v. Costco dispute.

“This type of litigation not only discourages counterfeiters, but also ensures that Tiffany’s luxury brand doesn’t get diluted over time. I find it interesting that Costco argued that ‘Tiffany’ represents a generic term used to describe a ring setting, and not just a brand name. That’s a tough case to make against a company that aggressively defends its brand.

“Based on the sizable judgment, it is unlikely that other companies in the industry will try to make the same arguments against Tiffany & Co. That’s the benefit of aggressive trademark enforcement.”

Join Our LinkedIn Group

By Amy Dugan
King & Fisher Law Group, PLLC

In 2014, the New York Court of Appeals, in Biotronik A.G. v. Conor Medsystems Ireland, Ltd., held that the lost profits claimed by a party were “general damages”, and were recoverable. They were recoverable despite the limitation of liability provision in the contract, which stated that neither party would be liable for “any indirect, special, consequential, incidental or punitive damage with respect to any claim arising out of [the] agreement” for any reason, including a party’s performance or breach of the agreement.

Why is a case that was decided in 2014 worthy of writing about now? It’s been over three years since the Court’s decision, and we still commonly see limitation of liability language in commercial contracts that does not clearly address the issue of lost profits, and whether they are direct or indirect damages. That may be a strategic decision of the drafter, or it may be an oversight. While New York law does not govern all commercial contracts, other courts may rely on Biotronik in the future, or reach a similar holding independently. Regardless, it’s generally better to have a contract that clearly expresses the intent of the parties, rather than have a court determine it.

Direct Damages vs. Indirect Damages

Consider whether lost profits are reasonably foreseeable and quantifiable. Will breach of the contract almost surely cause a party to lose profits? Is there a reasonably certain way to prove the amount of lost profits? If so, lost profits may be considered direct damages. For example, if the parties have a non-compete agreement, the main purpose of that agreement is to ensure one party does not compete with the other party for business, thereby diverting customers, which results in lost profits. Lost profits can be reasonably quantified by sales to each diverted customer by the competing party. This is a situation where lost profits would likely be considered direct damages.

Defining Lost Profits

Consider whether the parties want lost profits to be recoverable. A provision can be included in the contract expressly stating that lost profits are direct damages, or that lost profits are indirect damages. Limitation of liability language can be included that states lost profits are not recoverable, regardless of how they are categorized. Alternatively, the limitation of liability language can expressly exclude lost profits from the limitation, making them recoverable.

Ultimately, whether lost profits should be recoverable, and how they are addressed in a contract will depend on the individual relationship or transaction in question. Given the potential for dispute, drafting clear language is key.

Join Our LinkedIn Group

Veteran trial lawyer David Elrod has joined the business and entertainment law firm Shackelford, Bowen, McKinley & Norton, LLP, as a partner in the Dallas office, marking an expansion of the firm’s existing litigation practice.

Also joining Shackelford are partner Worthy Walker, of counsel Barbara Wohlrabe and associate Hayley Ellison. The attorneys all have experience in complex commercial and energy disputes in Texas and around the country, the firm said in a release.

The release continues:

“Since 2002, this firm has grown steadily, with a focus upon what is best for our clients’ business interests. This group is a significant addition that will benefit all of our clients and position us for continued growth,” says founding partner John Shackelford. “It’s not every day that you have the opportunity to bring upper-tier litigators such as David and his team into your firm. Their addition strengthens our litigation and trial capabilities regionally and throughout the country, while also adding a robust energy litigation section.”

Elrod has nearly 40 years of experience trying bet-the-company cases and a variety of complex commercial lawsuits around the country. He was the founder of the successful litigation boutique Elrod PLLC, which he helmed for 15 years in Dallas. Among Texas’ most respected trial lawyers, Elrod represents clients in state and federal litigation involving energy, oil and gas, real estate, bankruptcy, and complex commercial litigation.

“I’m very excited about joining a dynamic regional firm where I can continue to service the litigation needs of my clients, with flexibility as to rates and billing arrangements, and also provide them access to the firm’s full-service resources. These considerations are important to all of our clients, whether Fortune 100 companies or small businesses,” says Elrod. “John and I completely agree on how to responsibly and carefully grow a law firm and how to represent clients in an efficient and effective manner. With its strong management structure, and collegial culture, Shackelford is a natural fit for us.”

Walker’s practice is focused on complex business litigation and appeals, representing individuals, small businesses and multinational corporations, primarily in energy and banking matters. His work also includes trade secret, non-compete, discrimination and other employment issues. Wohlrabe represents clients in contractual disputes, commercial torts and land use matters. Ellison represents international energy corporations on various litigation and appellate matters.

Shackelford, Bowen, McKinley & Norton, LLP is an aviation, general business and entertainment law firm with 51 attorneys and offices in Dallas, Fort Worth and Austin, Texas, and Nashville, Tennessee. The firm represents aircraft owners, operators and servicers, financial institutions, recording artists, real estate owners and developers, automobile dealerships, record labels, gas transporters, energy companies and other businesses in legal matters across the country.

Join Our LinkedIn Group

The Association of Corporate Counsel will hold its next annual meeting Oct. 15-18 in Washington D.C.

The organization is offering an exclusive $125 discount on the registration fee for readers of General Counsel News who register by August 31. Readers may use the code GCNEWS to receive the discount.

The ACC bills the event, which draws thousands of in-house counsel from around the world, as the world’s largest gathering of in-house counsel.

Organizers have recently added a law department operations boot camp, titled “How to Gain Traction: A Boot Camp for Leaders of Early-Stage Legal Operations Functions.” The bootcamp is designed for corporate legal department leaders only.

The featured speaker will be Don Tapscott, CEO of the Tapscott Group. He is a best-selling author and the world’s leading authority on blockchain and other disruptive technologies.

Here is a schedule of activities.

Register or get more information.

In a legal battle that’s been underway since 2013, a federal judge ruled this week that Costco owes Tiffany & Co. a settlement of $19.4 million for selling diamond rings confusingly labeled as “Tiffany” in its stores, Forbes reports.

Forbes contributor Rachelle Bergstein explains that, while a jury found in Tiffany & Co’s favor in September of 2015, Costco continued to argue that its use of the name “Tiffany” referred to a generic style of ring, and not to the storied luxury house itself.

She writes that, while the suit sounds like a case of an elite, heritage brand pummeling a mass-market retailer for using its name to sell merchandise, it’s also a noteworthy example of how selling specialized products without a deep understanding of them can be disastrous (and potentially quite expensive) for the retailer.

Read the Forbes article.

Join Our LinkedIn Group

Big Pharma is having a Big Tobacco moment as litigation over opioids attract star lawyers and a growing list of states and local governments seeking their own multibillion-dollar payout to deal with costs of a burgeoning drug epidemic, reports Bloomberg Law.

Six states have sued opiod markers, alleging they have created a public health crisis.

“Plaintiffs’ lawyer Joe Rice, a plaintiff lawyer who helped negotiate a $246 billion settlement with the tobacco industry in 1998, suggests states are laying the groundwork to force a resolution that provides billions of dollars to cover the costs of an epidemic blamed for 62 deaths per day,” explain Jef Feeley and Jared S. Hopkins.

Read the Bloomberg article.