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This Week's Feature
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IpQ — “Enhancing Your IP IQ”
Six Rules on the Road to Lost Profits Damages
By Peter E. Strand
Shook, Hardy & Bacon L.L.P., Washington, D.C.
Just because a corporate patent owner has standing to sue, it does not mean the corporation has standing to recover lost profit damages. This distinction, which may be worth millions, needs to be part of your IP IQ.
Standing to sue for patent infringement is a threshold question of law. While we are not addressing that issue here, we will discuss a corporate patent owner’s ability to recover lost-profit damages after standing is established. See Poly-America, L.P. v. GSE Lining Tech., Inc., 383 F.3d 1303, 1311 (Fed. Cir. 2004) (“While Poly-America may have the right to sue under its patents, both as an owner and as a back-licensee, it can recover only its own lost profits, not Poly-Flex's.”).
[FULL STORY]
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Legal News
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Employment Law — Supreme Court Decision: 14 Penn Plaza LLC v. Pyett, No. 07-581
In Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), the Supreme Court allowed a discharged employee to bring an employment-discrimination claim in federal court even though he had already engaged in arbitration of the claim under his union’s collective bargaining agreement. In the years that followed, some courts construed Gardner-Denver and subsequent cases to preclude a union from agreeing, through a collective-bargaining agreement on behalf of its members, that the members would pursue statutory employment-discrimination claims in arbitration rather than in court. On April 1, 2009, in 14 Penn Plaza LLC v. Pyett, No. 07-581, the Supreme Court held that a provision in a collective-bargaining agreement that explicitly requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., is enforceable.
[FULL STORY]
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Environmental Law — Supreme Court Decision: Entergy Corp. v. EPA, No. 07-588
The Clean Water Act, 33 U.S.C. § 1251 et seq., regulates “cooling water intake structures” found in large powerplants. The Clean Water Act (Act) requires the Environmental Protection Agency (EPA) to determine that such intake structures “reflect the best technology available for minimizing adverse environmental impact.” 33 U.S.C. § 1326(b). In 2004, the EPA promulgated rules governing its determination of what constitutes the “best technology available” (BTA). In issuing those rules, the EPA determined that existing powerplants did not have to adopt closed-cycle cooling systems, although such systems provide the greatest environmental protection, because, in the agency’s view, the financial cost of retrofitting existing powerplants with such systems would outweigh the environmental benefits achieved. The Respondents, plaintiffs below, challenged the EPA’s use of cost-benefit analysis.
[FULL STORY]
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Ohio Property Owners Are Immune from All Secondhand Asbestos Exposure Cases
An Ohio Appellate Court recently held that a five-year-old Ohio statute barred all secondhand or “take home” asbestos exposure suits against premises owners. Adams v. Goodyear Tire & Rubber Co., Ohio Ct. App., No. 91404 (Feb. 5, 2009) Clayton Adams was an employee at the Goodyear Tire & Rubber Co. (Goodyear) from 1973 to 1983. During that time, Mr. Adams was occupationally exposed to various asbestos-containing products that, as a result, were brought home with him on his clothing.
[FULL STORY]
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Federal Appeals Court Finds that Asbestos Bystander Exposure Was Not Forseeable Under Kentucky Law
The Sixth Circuit Court of Appeals recently found that under Kentucky negligence law, a father’s employer (Cincinnati Gas & Electric Co.) and a manufacturer of asbestos-containing products (General Electric Co.) were not liable for allegedly exposing the son to asbestos dust that was brought home on the father’s work clothes. Martin v. Cincinatti Gas and Electric Co., et al. (2009 WL 188051) (6th Cir. Ct. App.2009). The court held that it was not foreseeable for either defendant to have had actual or constructive knowledge of bystander exposure during the relevant time period of exposure.
[FULL STORY]
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DRI News
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Sign Up Your Summer Associates!
For just $20, your law clerks will receive the following benefits:
• Great Networking Opportunities – Automatic enrollment in the Young Lawyers Committee which offers abundant opportunities to get involved
• DRI Publications – For The Defense, the only national monthly magazine for defense lawyers, and The Voice, a weekly eNewsletter
• DRI’s Website – Searchable membership database
• FREE Registration to attend all DRI seminars, including the Annual Meeting
• Law Student Resume Database – Get your resume in front of 22,500 defense attorneys!
Please click here to download the Law Student Membership Application. Return the completed application to Cheryl Palombizio at cpalombizio@dri.org or fax it to 312-252-1156. A DRI new member welcome packet will be mailed within a few weeks.
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DRI’s Employment Law Seminar will be held April 30 - May 1, 2009, at the JW Marriott Orlando, Grande Lakes in Orlando, Florida.
DRI's 32nd annual Employment Law Seminar is the definitive program for employment defense counsel, human resources professionals, in-house counsel and insurance industry professionals. Always intensely practical, as well as accompanied by superior quality written materials, the Employment Law Seminar has become a "must-attend" for experienced practitioners, as well as those learning employment law for the first time. Don't miss this opportunity to network and build your practice while learning from some of the best practitioners and professionals in the employment arena. To register now, click here or call 312.795.1101 for more information!
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Defending Damages Claims in Business Tort Cases
This new Defense Library Series publication tackles the difficult task of dealing with damages claims in cases in which business torts are alleged. The authors are experienced business litigators, who are also active members of the DRI Commercial Litigation Committee. The articles included in this publication address the following topics: Lost profits in business torts; Calculating damages for misappropriation of trade secrets; Potential impact of poaching (analysis of availability of punitive damages in corporate raiding cases);Damages in copyright and trademark actions; Corporate damages under Title VII and other civil rights statutes that apply to employment; Liquidated damages versus penalties; Damages for tortious interference; Prejudgment interest; The application of enhanced fines under the Alternative Fines Act for antitrust defendants. To pre-order your copy today, click here.
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Two Economical Reasons to Join DRI or Recruit Colleagues
• Young Lawyer Campaign
Young Lawyers receive a certificate for FREE attendance at a future DRI seminar or the Annual Meeting. The certificate is good for as long as the person is a member of the Young Lawyers Committee. The certificate is non-transferable, and the holder must surrender the certificate at the time of pre-registration for the seminar of his/her choice.
• Advocate Campaign: (a.k.a. “Member Get a Member”)
DRI members (except Officers and Board members) who recruit new “full dues paying” members receive a $100 fully transferable discount coupon for each such member recruited. Coupons are redeemable at DRI seminars and the Annual Meeting. Coupons may be combined for a given seminar or the Annual Meeting. Individual discount coupons are valid for two years from the date of issue. There is no limit to the number of coupons an advocate can accumulate. The advocate’s name MUST appear on the “referred by” space provided on the application.
For membership forms or more information, click here.
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IADC Corporate Counsel College
April 23-24, 2009
The Ritz-Carlton, Chicago
The corporate legal environment just keeps getting faster, and keeping up with the rapid changes can be difficult. It takes a high functioning legal team to keep up in an environment that is moving at the speed of light. Make sure your legal team is up to the task!
Panel discussions include:
• Managing Relationships with Outside Counsel in a Recession: How to Win Friends and Influence Budgets
• What in the World Happened to Insurance?
• The Government Is Coming: What to Expect and How to Deal with It
• Managing Your E-Discovery Costs: Who's Doing It and How?
• Hot Topics: What's Happened Since the Brochure Was Printed
• Class Actions: They Can Strike Anywhere, Anytime
• Civil Justice Reform Update
To register or for more information, click here.
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And The Defense Wins!
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Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC (WWHGD) partner, Kevin Williams received a defense verdict for his client in a case stemming from a May 2000 death on a houseboat in Georgia. The victim allegedly died from a drowning caused by disorientation due to carbon monoxide (CO) poisoning. Testing revealed the deceased had a CO level of 22% in his blood, which was reported as a toxic level.
[FULL STORY]
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Craig A. Sargent, a shareholder with Pryor Johnson Carney Karr Nixon, P.C. in Greenwood Village, Colorado, represented a radiologist in a two week jury trial in Boulder, Colorado. He was being sued for alleged medical malpractice in performing a myelogram procedure in February 2005. Following the myelogram, the patient developed severe chemical meningitis, resulting in hospitalization for two weeks and two subsequent hospital admissions.
[FULL STORY]
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Ryan Ryan Deluca LLP partner Charles A. Deluca of Stamford, Connecticut, teamed with an associate recently to successfully defend Metro-North Railroad in a class action suit in federal district court in Connecticut by over 1,300 railroad employees. In this suit, the plaintiff employee failed to prove Metro-North violated the Driver’s Privacy Protection Act, 18 U.S.C. §2721, when it obtained records about traffic violations from the Department of Motor Vehicles. William Camara, 51, sued on behalf of himself and similarly situated workers whose jobs require valid drivers’ licenses, but not commercial drivers’ licenses.
[FULL STORY]
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DRI member Mark Herrmann from Jones Day (Chicago) reports a defense verdict in a wrongful death case, now affirmed on appeal by the Seventh Circuit. In Giles v. Wyeth, __ F.3d __ (7th Cir. 2009), the plaintiff alleged that her husband's ingestion of an antidepressant caused him to commit suicide. This was the first antidepressant-suicide case to be tried in six years, since an earlier $8 million plaintiff's verdict in a case involving a different drug company.
[FULL STORY]
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DRI member Paul Caleo of Burnham Brown in Oakland, California, teamed up with an associate recently to successfully defend national valve manufacturer, Northern Indiana Brass Company d/b/a NIBCO, and its distributor, Western Nevada Supply, from claims of product liability design defect in a re-trial of a traumatic brain injury case with claimed damages of $2 million after a three week trial in Placer County that resulted in the jury returning a defense verdict on March 13, 2009, after two days of deliberation.
[FULL STORY]
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On November 24, 2008, a state court jury in Polk County, Florida, returned a unanimous verdict in favor of Ford Motor Company in a roof strength case involving a 2002 Ford Explorer. The jury took just under three hours to return its verdict after a five week trial. Ford was represented by DRI members Alan Thomas of Huie, Fernambucq & Stewart in Birmingham, Alabama, and John “Jay” Reid, Jr. of Cabaniss, Smith, Toole & Wiggins, PL in Orlando, Florida. The plaintiff was represented by Pajcic & Pajcic, P.A. in Jacksonville, Florida.
[FULL STORY]
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Gary Howard, Christy Hancock, and Jason Bushby, all of Bradley Arant Boult Cummings LLP in Birmingham, Alabama, recently won summary judgment in favor of Homecomings Financial, LLC in the Circuit Court of Shelby County, Alabama. The case involved claims for breach of contract, fraud, fraudulent inducement, fraudulent suppression and negligence, arising from allegations that Homecomings orally represented to plaintiff that her $1 million mortgage loan included a 2% interest-only payment option in the amount of $1,666.66 per month for a five year period. After Homecomings attempted to enforce the written terms of the mortgage, the plaintiff filed suit.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by email (blowery@dri.org).
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Legislative Tracking
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Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from Montana through West Virginia, plus Iowa. The Young Lawyers Legislative Subcommittee is led by co-chairs Emily Turner Landry of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee and Sean W. Shirley of Balch & Bingham LLP in Birmingham, Alabama, plus vice-chair Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan. Special thanks to these leaders, along with all of the other state contributors.
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IOWA (Contributor: Mike Weston, Lederer Weston Craig, P.L.C.)
House File 758
• A bill to allow the amendment of Section 613.15, Code 2009, by striking the section and inserting in lieu thereof the following: A spouse or child of a person may recover for the expense and actual loss of support, services, companionship, and society resulting from injury to or death of the person, which includes, damages recovered as a result of the wrongful act may include damages for the decedent’s loss of enjoyment of life.
• March 17, 2009 Introduced, placed on calendar. H.J. 823.
• March 24, 2009 Passed House, ayes 58, nays 41. H.J. 1004.
• March 24, 2009 Immediate message. H.J. 1008.
• March 25, 2009 Message from House. S.J. 843.
• March 25, 2009 Read first time, referred to Judiciary. S.J. 843.
• March 25, 2009 Subcommittee, Kreiman, Jochum, and Kettering. S.J. 847.
• March 25, 2009 Committee report, without recommendation. S.J. 861.
• March 25, 2009 Amendments S-3147, S-3151 filed. S.J. 864.
• March 26, 2009 Amendment S-3155 filed. S.J. 877.
MONTANA (Contributor: Julie A. Lemmer, Alton & Bird LLP)
ECONOMIC DEVELOPMENT
MT HB 669: Establishes a wood product industry loan program.
• This bill sets up a revolving loan program to provide funds to individuals (including private contractors), small businesses and local government in the wood products industry.
• This bill was introduced on March 19, 2009, and set for hearing by the Natural Resources committee on April 6, 2009.
HEALTH CARE
MT SJR 35: Study of Health Care laws.
• This bill provides for an interim study to examine matters related to health care in order to reform health care policies and to help develop strategies for providing residents to quality health care services at affordable costs.
• This bill was introduced on April 1, 2009, and set for hearing before the Public Health, Welfare and Safety committee on April 6, 2009.
LABOR AND EMPLOYMENT
MT SJR 30: Study of Worker’s Compensation laws. (See also MT SJR 33).
• This bill provides for an interim study to examine the premium cost drivers in Montana’s Worker’s Compensation system and to propose legislation to address problems including: frequency of claims, medical costs, duration of medical treatments, length of time off work from an injury, and percentage of open claims.
• This bill was introduced on March 21, 2009, and was passed on voice vote after the second reading on April 3, 2009. Scheduled for a third reading on April 6, 2009.
LOCAL GOVERNMENT/PROPERTY TAX
MT HB 670: Provides local government discretion in reducing tax value for certain property.
• This bill provides local government and school districts discretion to abate property taxes on certain commercial or industrial real property in order to facilitate the reopening and continued operation of the business using the property.
• This bill was introduced on March 23, 2009, and set for hearing by the Taxation committee on April 3, 2009.
[MORE]
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Quote of the Week
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No one has a finer command of language than the person who keeps his mouth shut.
—Sam Rayburn
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DRI CLE Calendar
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Beyond a Great Lawyer: Masterful Marketing Skills for Your Practice (webconference)
April 14, 2009
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
Commercial and Intellectual Property Litigation Symposium
April 22-24, 2009
Wyndham Chicago, Chicago, Illinois
Life, Health, Disability and ERISA
April 22-24, 2009
Sheraton New York Hotel & Towers, New York, New York
Corporate Representative Deposition (webcast)
April 29, 2009
Employment Law
April 30-May 1, 2009
JW Marriott Orlando, Grande Lakes, Orlando, Florida
Electronic Discovery
May 7-8, 2009
Hilton New York, New York, New York
Culture Clash! Data Protection, Freedom of Information and Discovery — How to Protect Your Business in Transnational Disputes
May 13-14, 2009
Hotel Vier Jahreszeiten Kempinski, Munich, Germany
Drug and Medical Device Litigation
May 14-15, 2009
Sheraton New York Hotel & Towers, New York, New York
First Response — Extra-Record Discovery Request Post-Glenn (webcast)
May 20, 2009
Young Lawyers
June 4-5, 2009
Caesars Palace, Las Vegas, Nevada
Diversity for Success
June 11-12, 2009
Swissôtel, Chicago, Illinois
For all other seminars, webconferences and webcasts, click here.
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Trucking Policyholder's Duty to Preserve Coverage
Trade Secrets and Agreements Not to Compete
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