When considering entering into a non-disclosure agreement between two commercial entities, the first question to ask is whether it is necessary for either party to be disclosing confidential information, writes Kathleen Wegrzyn in Foley & Lardner’s Manufacturing Industry Advisor blog.

She writes that the best way to protect your confidential information is to not disclose it at all, if it is not necessary for the transaction.

But “when entering into an NDA, a party should carefully consider the scope of the definition of ‘Confidential Information,’ pay close attention to the non-use and non-disclosure provisions, include a confidentiality period and a provision providing for the return of the Confidential Information, and ensure that no terms other than those related to confidentiality are included in the NDA,” according to Wegrzyn.

Read the article.

Trademark licensing disputes can present thorny issues at the intersection of contract and trademark law, warns an article in the
Dorsey & Whitney LLP blog TheTMCA.com.

“And when the dispute involves the Trump brand for residential buildings, the adjudication of rights and obligations under a trademark license agreement can become national news,” write Sandra Edelman and Dan Goldberger.

In Residential Committee of the Board of Managers of 200 Riverside Boulevard at Trump Place Condominium v. DJT Holdings LLC, the court held that the 200 Riverside Building was not required to use the Trump name on the façade of the Building.

The court agreed with the Condo Board that there are “no obligations or requirements in the license agreement for the building to carry the name ‘Trump’ on it in perpetuity.”

Read the article.

Law firms face some of the same challenges with their marketing that politicians deal with when trying to get elected, points out Amy Boardman Hunt in a blog post for Muse Communications.

She offers some points that law firms (and political candidates) should keep in mind when planning their marketing efforts.

The article discusses some of the finer points of such marketing qualities as consistency, clarity, brevity, novelty, authenticity, targeting, and keeping “one foot in front of the other.”

Read the article.

A Texas appellate court has affirmed an $11 million verdict against the Choctaw Nation of Oklahoma, upholding a May 2016 jury verdict that the Choctaw Casino bore responsibility for a deadly 2013 crash of a charter bus carrying elderly North Texas residents to the Choctaw Casino in Durant, Okla.

A release from the lead trial counsel describes the ruling:

On Tuesday (May 29), a three-judge panel from the Court of Appeals for the Fifth District of Texas at Dallas rejected 14 separate arguments by Choctaw’s legal team seeking to reverse the jury’s findings. The appellate ruling found that Choctaw was vicariously liable for the negligence of the charter bus company, the bus driver and for a tour guide who had arranged the April 2013 casino trip. According to testimony, the crash occurred when the bus driver lost control of the bus on the northbound lanes of State Highway 161 in Irving as he was arguing with the tour organizer.

Trial lawyers from The Law Offices of Frank L. Branson were lead trial counsel in this case and represented the estate and family members of 82-year-old Alice Stanley, the lead plaintiff. Attorneys Frank L. Branson and Chip Brooker of The Law Offices of Frank L. Branson successfully argued that the Choctaw Nation of Oklahoma had a contractual relationship with the tour organizer and the charter bus operator and the tour, Cardinal Coach Lines. The jury awarded $4.9 million to Ms. Stanley’s estate and $6 million to the estate of 69-year-old Paula Hahn, who was represented by separate legal counsel.

Image by Open Grid Scheduler / Grid Engine

A jury in California delivered a $25.75 million verdict against the maker of Johnson’s Baby Powder for the deadly asbestos-caused cancer a woman developed after years of using the product, according to a post on the website of Androvett Legal Media & Marketing.

The post continues:

The verdict by jurors in Los Angeles Superior Court before Judge Gloria White-Brown includes $21.75 million in compensatory damages and $4 million in punitive damages. Jurors found that Johnson & Johnson was negligent and failed to warn consumers, and that its iconic Johnson’s Baby Powder contained manufacturing and design defects because of the presence of asbestos.

Joanne Anderson, 66, of Williams, Oregon, filed suit following her diagnosis with pleural mesothelioma. A cancer in the lining of the lungs, pleural mesothelioma is caused by asbestos exposure. She used Johnson’s Baby Powder on her children when they were younger and, as an avid bowler, regularly used the product on her hands and shoes for years. All told, experts estimate she used the product more than 10,000 times.

“It was our great honor to represent Joanne and Gary Anderson in this battle against Johnson & Johnson,” said trial attorney David Greenstone of Simon Greenstone Panatier, who was one of the attorneys who tried the case. “We are extremely pleased that our clients have found a measure of justice, although nothing can truly compensate them for what they have lost. Our clients are hopeful that this verdict can further bring light to this unbelievable example of corporate misconduct. Johnson’s Baby Powder has contained asbestos for decades. People need to know about this.”

The jury found Johnson & Johnson liable for two-thirds of the verdict amount. The remaining percentage of fault was spread among other exposures that Joanne had as a bystander to automotive work her husband occasionally performed. Medical testimony in the case indicated that all of her exposures to asbestos contributed to cause her mesothelioma.

“In 1969, a Johnson & Johnson’s company doctor told them that if they didn’t get control of the mineral contaminants in their baby powder that they would end up in litigation years later,” said trial attorney Chris Panatier, who also represented the family at trial. “Instead of pulling the powder from the market or going with a safer alternative such as corn starch, they engaged in a multi-decade campaign wherein they hid testing data from the FDA, altered reports to make them more favorable and lied to consumers. This jury saw Johnson & Johnson documents that were never given to the public or the FDA.”

Also assisting in the case was Simon Greenstone Panatier attorney Conor Nideffer.

The verdict is the third cosmetic talc case tied to asbestos that Simon Greenstone Panatier has won on behalf of its clients. In 2015, a California jury awarded mesothelioma sufferer Judith Winkel $13 million in her case against Colgate-Palmolive, based on her exposure to asbestos in its Cashmere Bouquet powder. The following year, a jury awarded $18 million to Philip Depoian in a mesothelioma case against talc supplier Whittaker Clark & Daniels.

Anderson’s case is Joanne Anderson and Gary Anderson v. Borg-Warner Corporation et al., No. BC 666513 in Los Angeles Superior Court.

Laura Stevens has been promoted to executive vice president and general counsel of Cengage, an education and technology company.

She joined Cengage in 2003, and worked on efforts to ready the business for the transition to digital. Based in the Boston headquarters, Stevens will serve on the executive team and will lead the legal function in support of the company’s strategy, Cengage said in a release.

“Among the many impressive highlights of Laura’s career here at Cengage are her forward-thinking efforts to realign our Intellectual Property licensing function to enable the Cengage Unlimited model, the industry’s first-of-its kind subscription service,” said Michael Hansen, CEO, Cengage. “Laura has been a powerhouse on our Legal team over the years, and I welcome the addition of her voice on the Executive Team as we continue to break with tradition to increase access to education.”

In her previous role as senior vice president and deputy general counsel, Stevens designed and recruited a 50+ person legal team to reflect a rapid print-to-digital transformation. In addition, she established the Cengage Privacy Office, creating industry-leading standards for responsible data stewardship. The company said Stevens continues to drive legal efforts around industry-wide implementation of anti-piracy bestpPractices with partners, which have resulted in a double-digit decrease in counterfeit texts among some of the company’s largest distributors.

Over the past 15 years, Stevens served a number of roles within the Cengage (and formerly Thomson Learning) legal team, including assistant general counsel, intellectual property, and publishing counsel. Prior to Cengage, she was an attorney at Brown Raysman LLP in New York City.

Stevens holds a B.A. in Political Science and Art History from the University of Rochester and a J.D. from Columbia Law School.

Perkins Coie has launched Consumer Protection Review, a blog designed to help businesses that market and sell to consumers navigate federal and state legal issues related to advertising, privacy, promotions, products liability, government investigations, unfair competition, class actions and general consumer protection.

Written for traditional retailers, manufacturers, technology companies and other consumer-facing enterprises, the Consumer Protection Review highlights legal developments in unfair or deceptive business practices, product safety claims, data collection, brand protection and more.

According to a release from the firm, the primary authors of “Consumer Protection Review” (listed alphabetically) are:

Amanda Beane counsels and defends clients on matters related to consumer protection and unfair competition, as well as Americans with Disabilities Act, contract trade secret and other commercial matters.

Mark Goodrich advises clients on advertising compliance matters and helps brands navigate complex state, federal and local advertising, promotion and consumer protection laws.

Jason Howell counsels clients on marketing, advertising, brand and consumer protection, and regulatory compliance issues, such as advertising claims and substantiation, sale and discount advertising, marketing and sponsorship agreements, product development, contests and sweepstakes, endorsements and influencers, and promotional offers.

Julie Hussey advises clients in high-exposure claims involving product liability, consumer fraud, and false and misleading advertisements and litigation related to injury and damage claims against manufacturers of dietary supplements, tires, paint, and automotive and aviation products.

Ryan Mrazik focuses on litigating for and counseling communications service providers—social media companies, mobile carriers and other communications and storage platforms—on the full range of legal issues those companies encounter regarding the privacy and security of their users’ information and content.

Eric J. Weiss represents clients in disputes arising under the Federal Trade Commission Act, the Sherman Antitrust Act, the California Cartwright Act, the Washington Consumer Protection Act and other state consumer-protection laws and advocates on behalf of plaintiffs and defendants in federal courts and arbitration forums nationwide.

Perkins Coie’s Consumer Protection practice represents innovative companies and industry leaders that advertise, market and sell products and services to the buying public. The attorneys help clients navigate compliance with the ever-changing field of consumer protection laws, and, when a matter spills into an investigation or active litigation, they resolve the dispute to match the client’s goals and preserve the company’s market reputation.

DLA Piper secured a victory in its representation of WebSpectator Corporation, a Santa Monica-based company that pioneered online analytics and attention ad space, as the plaintiff before the U.S. District Court for the Central District of California.

According to a release from DLA Piper, the litigation against the company’s former officers and directors included claims for violations of the Computer Fraud and Abuse Act, the Anti-Cybersquatting Consumer Protection Act and RICO, among other causes of action. Granting WebSpectator’s motion for sanctions for spoliation of evidence, the court entered defaults against the defendants and vacated the trial date.

The DLA Piper team representing WebSpectator was led by partner Ellyn Garofalo and associate Amir Kaltgrad (both of Los Angeles).

The 2018 annual meeting of the Association of Corporate Counsel will be Oct. 21-24 in Austin, Texas.

Participants at this year’s event may select from 110 CLE/CPD programs.

The complete schedule is posted online.

Some of the topics are:

Compliance & Ethics
Corporate & Securities
Employment & Labor
Energy
Environmental & Sustainability
Financial Services
Health Law
Information Governance
Insurance Staff Counsel
Intellectual Property
International Legal Affairs
IT, Privacy & eCommerce
Law Department Management
Litigation
New to In-house
Nonprofit Organizations
Real Estate
Small Law Department
Sports & Entertainment

Jason Dorsey, Co-Founder & President, Center for Generational Kinetics will be the keynote speaker on Monday, Oct. 22.

Get more information.

Sandra Goldstein, a former leader of Cravath, Swaine & Moore’s litigation department who is leaving the firm to join Kirkland & Ellis, will be well-compensated in her new role: $11 million a year for five years, plus a signing bonus, according to The New York Times.

“What has the legal profession’s upper ranks abuzz is that for decades partners almost never left Cravath voluntarily — not for other law firms, at least, let alone for a firm like Kirkland, which is in some ways Cravath’s polar opposite,” writes reporter James B. Stewart.

He adds that Kirkland has shaken up the profession and expanded its practice by poaching top partners from Cravath, Latham and Skadden Arps Meagher Slate & Flom.

Read the NY Times article.

Image by IowaPolitics.com

The Washington Post is reporting that federal prosecutors investigating President Trump’s personal lawyer Michael Cohen are poised to receive on Wednesday 1 million files from three of his cellphones seized last month, according to a filing submitted to the court Tuesday night by special master Barbara Jones.

Jones said investigators have already been given access to nearly 300,000 pieces of potential evidence seized from Cohen’s office and residences in an April raid, according to reporters Philip Bump and Mark Berman.

Cohen’s attorneys initially said thousands of the seized documents might be covered by attorney-client privilege, but Jones noted that so far only 252 items have been flagged by Cohen’s or President Trump’s attorneys as privileged.

Read the Post article.

Bloomberg Law is reporting on a a seminal study from the Hazelden Betty Ford Foundation found widespread mental health problems among attorneys.

The report says that approximately 40 percent of associates at large firms have unlimited vacation days, according to Matt Moody, a senior law editor at career research company Vault. “But taking vacations while billing enough hours, remaining available to clients, and meeting court deadlines can be tricky. The Vault survey found only 31 percent of associates used all their vacation days, Moody said.”

Reporter Gayle Cinquegrani writes that lawyer and licensed alcohol and drug counselor Patrick R. Krill and lead author of the Hazelden study, believes that skipping vacations can “be a set-up for anxiety, depression, alcoholism, and burnout.”

Read the Bloomberg article.

Missing a deadline by 41 minutes was all it took to turn a $250,000 settlement offer in a personal injury case into a $5.5 million jury verdict that has since grown with interest to about $7 million and counting, reports The Dallas Morning News.

Reporter Kevin Krause explains: “The lawyer who failed to timely accept that offer in writing is Levi G. McCathern II, who also represents the Dallas Cowboys and owner Jerry Jones. His mistake in the personal injury case could end up putting a small, family-owned trucking company out of business, according to court records.”

The company sued McCathern, claiming his alleged legal malpractice led to the “ruinous” jury verdict.

Read the Dallas News article.

Image by Sean P. Anderson

In three separate lawsuits, the families of eight Sandy Hook shooting victims as well as an FBI agent who responded to the shooting seek damages from conspiracy theorist Alex Jones for defamation, reports The New York Times.

Jones has claimed that the 2012 shooting that killed 20 first graders and six adults at the elementary school in Newtown, Conn., was an elaborate hoax invented by government-backed “gun grabbers.”

Reporter Elizabeth Williamson writes that, “The families allege in one suit, filed by Koskoff, Koskoff & Bieder in Bridgeport, that Mr. Jones and his colleagues ‘persistently perpetuated a monstrous, unspeakable lie: that the Sandy Hook shooting was staged, and that the families who lost loved ones that day are actors who faked their relatives’ deaths.’”

Plaintiffs in a suit filed Wednesday challenged any First Amendment defense: “The First Amendment has never protected demonstrably false, malicious statements like the defendants’.”

Read the NY Times article.

A North Carolina law firm shouldn’t be sanctioned for failing to take steps to preserve emails that are potentially relevant to a lawsuit brought by a former partner, a business court judge ruled, according to Bloomberg Law.

The court found that the law firm’s duty to preserve emails arose four weeks before it issued a litigation hold. But sanctions aren’t warranted because there are no facts to suggest any potentially relevant emails were lost, he said.

Reporter Michael Greene quotes the judge: “There must be a specific reason, beyond mere speculation that relevant information was lost as a result of a delayed litigation hold, to justify imposing sanctions.”

Read the Bloomberg article.

Bloomberg Law’s June 6 Cross-Border Deals Forum 2018: Applying Emerging Technologies for Efficiency & Success, will feature an examination of the dealmaking landscape and new risks to watch.

The live event will be Wednesday, June 6, 2018, at Bloomberg LP, 120 Park Avenue, New York. A networking reception will follow.

Ed Hammond, senior deals reporter for Bloomberg L.P., will talk with Diane Holt, managing editor at Bloomberg Law, about how business leaders are leveraging technology, implementing new compliance strategies, and mitigating risks as the market changes and new regulations come into effect.

Speaking at other sessions will be:

• Julia Shullman, VP, Chief Privacy Counsel, AppNexus
• Elizabeth Sanders, Chief Counsel – Transactions/M&A, Panasonic Corporation of North America
• Jonathan Anastasia, Senior Managing Counsel, Mastercard Labs

Register for the event.

The 4th annual Bloomberg Law In-House Forum will Explore the steps that general counsel need to take to mitigate the internal cybersecurity threat.

The event will be Wednesday, June 27, 2018, at the Grand Hyatt San Francisco, 345 Stockton Street, San Francisco 94108.

Specifically, the event will dissect one of the most pressing issues affecting the modern corporate workplace: cybersecurity threats from its own employees. Participants will learn how general counsel can effectively partner with other teams at the organization to guard against this growing risk.

Speakers will guide the discussion, outlining how corporate counsel can build relationships between IT and Human Resources in order to act in a leadership role, crafting an effective risk avoidance plan that includes auditing, training, and both preemptive and post-breach initiatives.

Register for the event.

State and federal authorities are picking up the pace of investigations into cryptocurrency markets, digital investment promotions and so-called initial coin offerings (ICOs) after being caught unprepared by the rapid adoption of cryptocurrency and blockchain technology behind digital currency transactions, according to a post on the website of Androvett Legal Media & Marketing.

“Until now, the explosive growth and soaring cryptocurrency valuations have occurred within a Wild West atmosphere of limited regulatory oversight,” said white collar defense attorney Douglas Richards of Denver-based Richards Carrington. “Regulators have taken notice and we’re starting to see a broad range of state and federal enforcement actions.”

State securities regulators in Texas, Colorado and other states recently took part in “Operation Cryptosweep,” a coordinated crackdown targeting fraudulent cryptocurrency operations that has resulted in the shuttering of certain investment websites and seizures of cryptocurrency and other assets. On the federal level, the Securities and Exchange Commission is examining whether certain cryptocurrency should be considered a commodity or an investment vehicle, which could trigger extra regulatory oversight.

“Blockchain technology and cryptocurrency are playing an important place in our modern economy, but parties raising funds through ICOs and individuals interested in cryptocurrency as an investment need to make sure they understand what they’re trading and do everything they can to protect themselves from fraud and regulatory scrutiny,” Richards said.

The International Association of Defense Counsel (IADC) has published its second quarter 2018 Defense Counsel Journal (DCJ) with instructive articles on trending litigation issues and techniques ranging from “Lone Pine” orders to “litigation tourism” to “slack fill litigation.”

Frequently and favorably cited by courts and other legal scholarship, the DCJ is a quarterly forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general, the counsel said in a release. DCJ articles are written by members of the IADC, which is a 2,500-member, invitation-only, worldwide organization that serves its members and their clients, as well as the civil justice system and the legal profession.

The current DCJ issue is available for free and without a subscription via the IADC’s website.

Michael Franklin Smith, IADC member and current editor for the DCJ, notes in his introductory article in the current issue that he felt compelled to write about the importance of the rule of law.

“The increasing rash of accusations of fake news by politicians from all levels of governments around the world and by media talking heads appears to be weakening the people’s confidence in the rule of law,” writes Smith, a shareholder at McAffee & Taft in Tulsa, Okla. “The work of those who enforce the rule of law helps to restore that confidence. Standing behind those enforcers and defending the virtues of the rule of law is more vital now than it has ever been.”

Also in the spotlight in the current DCJ issue is a letter from IADC President Andrew Kopon Jr. that highlights the IADC’s active and increasing commitment to advancing diversity and inclusion within the organization.

“Organizations realize that diversity is essential to attain their desired goals,” writes Kopon, a founding member of Kopon Airdo, LLC in Chicago. “Without inclusion fostered by multiculturalism and diversity, organizations cannot evolve and assure their success. The IADC is no exception.”

The second quarter 2018 issue of the DCJ includes the following articles:

– “Supreme Court Strikes Another Blow to Litigation Tourism in Bristol-Myers Squibb”– Explores the continuing trend of rulings against the litigation tourism industry – with companies and multi-national corporations, especially, subjected to numerous, identical lawsuits filed in the same plaintiff-friendly venues regardless of the personal connections plaintiffs share with those venues – in favor of more traditional notions of fair play and substantial justice as envisioned by the U.S. Constitution.

– “Preimpact Terror Awards – A Lottery”– Analyzes preimpact terror as a recognized category of compensable tort damages, suggesting that legislatures or the highest courts of all states could enact or rule that a “one size fits all” schedule of specific amounts could be considered “reasonable compensation” for preimpact terror. This would treat equally all objectively similar situated decedents and not reward some of their survivors with the equivalent of a winning lottery ticket.

– “Considerations for Defense Counsel in Deciding to Seek, or Not to Seek, Lone Pine Orders in Mass Tort Litigation”– Dissects “Lone Pine” orders commonly used as a hybrid trial management technique by defendants wishing to quickly dispose of frivolous toxic tort case claims involving multiple plaintiffs.

– “Not Edible, But Still Empty: Manufacturers of Non-Food Products are also Targets for Slack Fill Litigation”– Assesses the successes and failures of slack fill litigation in the context of consumer food products, describes the initial attempts to expand slack fill litigation to non-food products, and suggests actions that companies can take to avoid being the target of slack fill lawsuits.

Fitch, Even, Tabin & Flannery LLP will present a free webinar, “Advanced Obviousness Analysis: Understanding the Reasonable Expectation of Success Doctrine,” featuring Fitch Even attorneys David A. Gosse and Margaret “Peggy” Wojkowski.

The event will be on Thursday, May 31, 2018, at 9:00 am PDT / 10:00 am MDT / 11:00 am CDT / 12 noon EDT.

When an invention combines previously known features, non-obviousness turns on whether the person having ordinary skill in the art would have a reason to make the combination. This analysis requires considering whether the ordinarily skilled person would have a reasonable expectation of success in combining the known features, the firm said in a release.

Recent Federal Circuit cases provide guidance in successfully arguing for patentability under this doctrine and establish that it applies even when obviousness is asserted based on a single reference. Successfully arguing obviousness in patent prosecution, post-issuance proceedings, and district court litigation depends on this analysis with increasing frequency.

In addition to discussing applicable cases, the event will explore these issues:
• When do circumstances favor arguing reasonable expectation of success at the PTAB and during patent examination?
• What types of evidence are helpful or needed to support the arguments?
• How can patents be drafted to establish that skilled persons would not have expected success by modifying the known art?

Register for the webinar.