By turning over sovereign prosecutorial-like power to contingency fee counsel in product-related litigation, a state effectively creates a new branch of government motivated by the prospect of private gain rather than the pursuit of justice or the public welfare. If not banned outright, this area needs "sunshine" reform, says Sean P. Wajert, co-chairman of Dechert LLP's mass torts and products liability practice group.
The plaintiffs' bar is vigilant in looking for medical devices and pharmaceutical products to indict. Television ads soliciting plaintiffs because of the alleged failure or defect of a medication or device and consumer expectations that a device or medication should work better than the human body help fuel such attacks, says C. James Zeszutek, co-chairman of Dinsmore & Shohl LLP's class action litigation and pharmaceutical and medical devices practice groups.
Legislation imposing responsibilities on financial institutions, with no promulgated regulations yet on the horizon, looks like a fertile field for plaintiffs to define specific obligations though litigation rather than through legislation, says Bart Friedman, leader of Cahill Gordon & Reindel LLP's white collar litigation practice group.
The debarment and suspension provisions of the False Claims Act need to be reviewed and modified. If convicted of even a small violation and prevented from doing business with Medicare and Medicaid, multibillion-dollar health care companies will quickly be faced with bankruptcy, says Julian Solotorovsky, chairman of Kelley Drye & Warren LLP’s white collar crime and investigations practice group.
Misconduct by prosecutors is as pernicious a development in the criminal justice system as I can imagine, says David M. Zornow, leader of Skadden Arps Slate Meagher & Flom LLP's white collar crime group.
We need clear guidance from the Federal Circuit to help the district court judges and the parties gain some predictability around patent litigation cases, says Sarah Chapin Columbia, head of McDermott Will & Emery LLP's worldwide intellectual property litigation practice group.
Although the outcome of Ariad Pharmaceuticals v. Eli Lilly appears to be an inside-the-Beltway kind of issue, it had broad implications in patent litigation, says James Galbraith, a partner and intellectual property litigation practice area member at Kenyon & Kenyon LLP.
Alternative energy, hands down, is where the next big wave is coming in corporate finance, particularly following the availability of matching funds from the U.S. Department of Energy, says Michael P. Drzal, chair of LeClairRyan's venture capital practice area team.
Many clients are looking to the global market for manufacturing, sales, marketing and strategic partnerships. This global reach forces companies to address international intellectual property issues, dispute resolution and other contract negotiation issues, says Josef B. Volman, co-chair of the corporate practice group at Burns & Levinson LLP.
The amount of time for oral argument is not well-matched to individual appeals cases: Some cases are better decided on the briefs, while others deserve more time for oral argument than the standard 15 minutes, says Robert S. Frank Jr., chair of the appellate practice at Choate Hall & Stewart LLP.
A successful appellate attorney must keep in mind the appellate audience: An appellate court is going to bring a more detached and broader perspective to its consideration of the issues than a trial judge who has been overseeing the matter for months, says Douglas S. Eakeley, co-chair of the appellate practice group at Lowenstein Sandler PC.
We need to pay judges adequately so that the best and most qualified people will want to serve, says J. Michael Jakes, leader of Finnegan Henderson Farabow Garrett & Dunner LLP's appellate practice.
One of the most challenging problems in international trade law today is that many clients must operate in a manner that serves the seemingly inconsistent regulations of several countries, says Stanley U. North III, a partner in LeClairRyan's corporate group who specializes in international trade.
The most significant problem in the U.S. appeals process is delay: It is often more important for the parties to obtain a decision — any decision — than to wait months or more for a great piece of judicial craftsmanship, says Robert N. Weiner, a partner in Arnold & Porter LLP's litigation and business litigation practice groups.
Memorandum decisions are now the norm and many are perfunctory. Last year, amazingly, the Eighth Circuit summarily affirmed without any substantive opinion over 30 percent of the time. That’s disturbing, and the problem may get worse now that unpublished opinions can be cited, says Dan L. Bagatell, appellate co-chair at Perkins Coie LLP.
Seeking broad discovery may be great, but can we review 10 million documents if all electronically stored documents are produced? People need to learn how to focus the request and production while still complying with the rules, says Gary M. Hoffman, leader of Dickstein Shapiro LLP's intellectual property practice.
A wave of litigation involving biologics and perhaps “personalized medicine” may be around the corner. The technology and rapid scientific advances in these areas are guaranteed to catch the attention of the plaintiffs bar, says Joseph M. Price, head of Faegre & Benson LLP's drug and medical device litigation practice.
All federal court litigation, and particularly antitrust litigation, has gotten much too expensive and cumbersome, says Barry Brett, head of Troutman Sanders LLP's antitrust practice group.
Investors are now looking at intellectual property as an asset class and will get more involved in monetizing those portfolios, says Amar Thakur, co-chair of Sheppard Mullin Richter & Hampton LLP's intellectual property practice group.
We could use fewer poor patents, a problem that is only exacerbated by the presumption of validity that a patent enjoys in litigation, says Luke Dauchot, a partner with Kirkland & Ellis LLP.
A number of lessons can be learned from the representative case involving a wrongful death claim against Phusion Projects Inc., the company behind the Four Loko beverage. Now, the industry is left to wonder the extent of the liability a court finds for an individual’s overconsumption, says Ashley Watkins of Davis Wright Tremaine LLP.
The U.S. Supreme Court's recent decision in Bowman v. Monsanto Co. provides the biotech community some much-needed clarity regarding self-replicating inventions. Perhaps equally important, the court displayed a keen sensitivity to the negative implications of an overly broad exhaustion doctrine, say attorneys with Womble Carlyle Sandridge & Rice LLP.
In the technical sense, medical causation answers whether an accused substance brought about some alleged disease. But rarely are the central causal allegations in major toxic torts purely courtroom affairs — publicity and politics now drive the litigation, with plaintiff verdicts begetting more publicity, says James Sabovich of Gibson Dunn & Crutcher LLP.
Data mining has led, and will lead to, startling discoveries in the sciences. In the law, it may well lead to startling liabilities, especially if defendants are made to pay for harms foreseeable only by the most powerful software available, says David Oliver of Vorys Sater Seymour and Pease LLP.
With the U.S. Supreme Court granting certiorari in Medtronic Inc. v. Boston Scientific Corp., it will help clarify who bears the burden of proof in a declaratory judgment action. If the court affirms the Federal Circuit, the traditional patent law for this type of controversy will be turned on its head, requiring a licensee to disprove infringement, says Shashank Upadhye of Seyfarth Shaw LLP.
The pros of using predictive coding far outweigh the cons. Given the heavy pressure on law firms and in-house counsel to reduce discovery costs, as well as the Justice Department's recent stance on the subject, it appears predictive coding will continue to emerge from the obscure world of legal technology to the mainstream of legal practice, say Michael Moscato and Myles Bartley of Curtis Mallet-Prevost Colt & Mosle LLP.
As evidenced by a recent study conducted by Oceana, mislabeled seafood appears to be a widespread problem that can adversely affect both the public interest and individual consumers’ wallets, health and socially responsible purchasing precepts, say attorneys with Arnold & Porter LLP.
As illustrated by the recent K-V Pharmaceutical Co. case, the U.S. International Trade Commission will likely closely review complaints that could usurp the power of another federal agency and potentially undermine that agency's application of its own rules, say Eric Fues and Mareesa Frederick of Finnegan Henderson Farabow Garrett & Dunner LLP.
The recent $4 million settlement by Tyson Foods Inc. represents one of the largest penalties for a stand-alone risk management program enforcement case since the provision was added to the Clean Air Act in 1990. This case also exemplifies the U.S. Environmental Protection Agency’s increasing focus on RMP compliance and its intention to seek ever-larger penalties for RMP violations, say attorneys with Kilpatrick Townsend Stockton LLP.
The Generic Drug User Fee Amendments, a part of the U.S. Food and Drug Administration Safety and Innovation Act, have changed the practice of generic drug sponsors in a multitude of ways. These requirements should be top of mind for abbreviated new drug application filers because they may ultimately impact a generic applicant’s eligibility for the coveted six-month marketing exclusivity, says Suchira Ghosh of Axinn Veltrop & Harkrider LLP.