Expert Analysis

• 3 Infringement Defenses To Consider 10 Years Post-Nautilus

  

  In the 10 years since the U.S. Supreme Court’s influential Nautilus ruling, the spirit of the “amenable to construction” test that the opinion rejected persists with many patent litigators and judges, so patent infringement defense counsel should always consider several key arguments, says John Vandenberg at Klarquist Sparkman.

• NY Ruling Paves A Court Payment Shortcut For More Creditors

  

  A recent New York state appeals court ruling expands access to an expedited statutory procedure for court enforcement of promissory notes or unconditional guaranties, allowing more creditors to minimize the risk of potentially challenging litigation on threshold issues, says Alexander Levi at Friedman Kaplan.

• 9th Circ. COVID 'Cure' Case Shows Perks Of Puffery Defense

  

  The Ninth Circuit's March decision in a case surrounding a company's statements about a potential COVID-19 cure may encourage defendants to assert puffery defenses in securities fraud cases, particularly in those involving optimistic statements about breakthrough drugs that are still untested, say attorneys at Cahill Gordon.

• After Years Of Popularity, PAGA's Fate Is Up In The Air

  

  The last two years held important victories for plaintiff-side employment attorneys in California Private Attorneys General Act litigation at the trial and appellate court levels, but this hotbed of activity will quickly lose steam if voters approve a ballot measure in November to enact the California Fair Pay and Employer Accountability Act, says Paul Sherman at Kabat Chapman.

• 3 Recent Decisions To Note As Climate Litigation Heats Up

  

  Three recent rulings on climate-related issues — from a New York federal court, a New York state court and an international tribunal, respectively — demonstrate both regulators' concern about climate change and the complexity of conflicting regulations in different jurisdictions, say J. Michael Showalter and Robert Middleton at ArentFox Schiff.

• Trending At The PTAB: Real Party In Interest And IPR

  

  The Patent Trial and Appeal Board’s recent Luminex v. Signify decision, finding a complaint seeking indemnification may be treated as a public demand sufficient to establish a real party-in-interest, shows that the board continues to apply a broad and expansive definition to that term, say Yicong (Eve) Du and Yieyie Yang at Finnegan.

• Perspectives

  Justices' Repeat Offender Ruling Eases Prosecutorial Hurdle

  

  The U.S. Supreme Court’s decision last week in Brown v. U.S., clarifying which drug law applies to sentencing a repeat offender in a federal firearms case, allows courts to rely on outdated drug schedules to impose increased sentences, thus removing a significant hurdle for prosecutors, says attorney Molly Parmer.

• Class Actions At The Circuit Courts: May Lessons

  

  In this month's review of class action appeals, Mitchell Engel at Shook Hardy discusses four notable circuit court decisions on topics from automobile insurance to securities — and provides key takeaways for counsel on issues including circuit-specific ascertainability requirements and how to conduct a Daubert analysis prior to class certification.

• Perspectives

  Trauma-Informed Legal Approaches For Pro Bono Attorneys

  

  As National Trauma Awareness Month ends, pro bono attorneys should nevertheless continue to acknowledge the mental and physical effects of trauma, allowing them to better represent clients, and protect themselves from compassion fatigue and burnout, say Katherine Cronin at Stinson and Katharine Manning at Blackbird.

• The Fed. Circ. In May: The Printed Matter Doctrine's Scope

  

  The Federal Circuit’s recent ruling in Ioengine v. Ingenico, which addressed the scope of the printed matter doctrine as applied to transmitted data or program code, restores the doctrine’s status as a relatively narrow part of patent law, say Jeremiah Helm and Sean Murray at Knobbe Martens.

• CFPB's Expanding Scope Evident In Coding Bootcamp Fine

  

  The Consumer Financial Protection Bureau's recent penalty against a for-profit coding bootcamp that misrepresented its tuition financing plans is a sign that the bureau is seeking to wield its supervisory and enforcement powers in more industries that offer consumer financing, say Jason McElroy and Brandon Sherman at Saul Ewing.

• Fintech Compliance Amid Regulatory Focus On Sensitive Data

  

  The Consumer Financial Protection Bureau's recent, expansive pursuit of financial services companies using sensitive personal information signals a move into the Federal Trade Commission's territory, and the path forward for fintech and financial service providers involves a balance between innovation and compliance, say attorneys at Wilson Sonsini.

• 5th Circ. Bond Claim Ruling Shows Creditors Must Be Vigilant

  

  In Raymond James & Associates v. Jalbert, the Fifth Circuit recently held that the bankruptcy debtor's indemnification obligations were discharged by the confirmed plan because the indemnified party failed to speak up, demonstrating that creditors must proactively protect their rights, says Joshua Lesser at Bradley Arant.

• 4 Arbitration Takeaways From High Court Coinbase Ruling

  

  The U.S. Supreme Court's May 23 decision in Coinbase v. Suski, which provides clarity to parties faced with successive contracts containing conflicting dispute resolution provisions, has four practical impacts for contracting parties to consider, say Charles Schoenwetter and Eric Olson at Bowman and Brooke.

• Fed. Circ. Scrapping Design Patent Tests Creates Uncertainty

  

  The Federal Circuit last week discarded established tests for proving that design patents are invalid as obvious, leaving much unknown for design patent applicants, patentees and challengers, such as what constitutes analogous art and how secondary references will be considered and applied, say attorneys at Sterne Kessler.