courthouseIf your employees are part of the 25 million who have arbitration agreements that agree to bring claims in individual arbitration alone, then you will want to watch for the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis. The Court heard arguments in the case last Monday and several of the Justices offered glimpses into the polarized positions on the Bench concerning whether the National Labor Relations Act prohibits agreements that preclude joint, class, or collective claims in the courts or in arbitration. You can learn more about the unique aspects of the arguments and the concerns of the Justices in this blog on Husch Blackwell’s Labor Relations Law Insider.

PatentThe doctrine of patent venue continues its rapid evolution after the Supreme Court’s recent decision TC Heartland LLC v. Kraft Foods Group Brands LLC, 137 S. Ct. 1514 (2017).  In TC Heartland, the Supreme Court upended decades of established precedent that allowed for broad assertions of venue in patent cases and found that for purposes of the specific patent infringement venue statute, 28 U.S.C. § 1400(b), a domestic corporation resided only in the state under whose laws it was incorporated. TC Heartland is expected to greatly reduce the volume of patent litigation brought in the Eastern District of Texas, a fast-track venue that has found great favor amongst patent assertion entities.

Continue Reading Federal Circuit Rejects Broad Interpretation of “Regular and Established Place of Business” for Patent Infringement Venue

Product Liability Monitor

September 8, 2017
New Developments
The SELF DRIVE Act Motors Through Congress
By Mark Pratzel

On September 6, 2017 the House of Representatives unanimously passed H.R. 3388, also known as the “Safely Ensuring Lives Future Deployment and Research in Vehicle Evolution Act,” also known as the “SELF DRIVE Act.” The broad, bipartisan support for this legislation seems to reflect a rare Congressional consensus favoring national standards for autonomous vehicle (AV) technology. [Continue Reading]

FAA Preemption: The Continuing Sikkelee Saga
By Alan Hoffman

Last April, in a case closely followed by the aviation industry, the Third Circuit reversed a District Court order granting summary judgment to Textron Lycoming in a fatal Cessna 172 accident case on the ground that the plaintiffs’ design defect claims were preempted by the Federal Aviation Act. The Third Circuit held that the District Court erred in applying field preemption to plaintiff’s tort design defect claims, and remanded the case for further proceedings. [Continue Reading]

Standing as a Defense in Class Action Products Cases
By Jonathan Schmalfeld

It is a basic legal principle that, for party to have standing to bring a case, that party must have suffered (or in some instances be under the immediate threat to suffer) some actual harm. This is commonly referred to as the injury-in-fact requirement. This requirement is particularly important in cases where class certification is sought. [Continue Reading]

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Technology, Manufacturing & Transportation
Product Liability Practice

Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]

Product Liability Monitor Archive
July 2017

trademarkAccording to BrandFinance’s annual report on the world’s most valuable brands, the GOOGLE trademark is the most valuable brand in the world; worth over $100,000 million. So how is it that the world’s most valuable brand is the subject of a claim that it has become generic and is no longer protectable?

When a trademark owner develops a product category that is new to the marketplace, its success in branding can sometimes be its demise if the brand loses its significance as a trademark and becomes the generic name for the product itself. Think aspirin, escalator, laundromat, and kerosene.

While all of us should be so lucky to develop a brand that becomes so well-known it becomes vulnerable to a trip to the trademark graveyard, this case is a good reminder to all brand owners to have processes in place to avoid such a finding.

Continue Reading Google No Longer Protectable as a Trademark????

immigrationIn agreeing to review two rulings by the 4th Circuit Court of Appeals and 9th Circuit Court of Appeals on President Trump’s March 6, 2017, Executive Order, the Supreme Court reinstated certain provisions of the Executive Order that the lower courts had blocked. The March 6th Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” was to suspend visa issuance for individuals from six countries, including Libya, Iran, Somalia, Sudan, Syria, and Yemen for 90 days. This provision, often referred to as the “travel ban,” effectively prohibits travel to the United States for individuals from the six affected countries.

Continue Reading Supreme Court Allows Major Provisions of Travel Ban to Go Into Effect

Product Liability Monitor

May 10, 2017
New Developments
Discovery Sanctions Sanctioned
By Alan Hoffman

On April 18, 2017 the United States Supreme Court did something unusual: it decided a discovery issue. In Goodyear Tire & Rubber Co. v. Haeger (2017), it reversed a $2.7 million sanctions order for bad faith discovery misconduct. And in Sec. Nat’l Bank of Sioux City v. Day, 800 F.3d 936 (8th Cir., 2015), another recent high profile discovery case, the United States Court of Appeals for the Eighth Circuit reversed a sanctions order requiring a lawyer to write and produce a training film on deposition conduct as a punishment for “obstructive deposition practices.” Each of these decisions held that the sanctions exceeded the court’s inherent authority. [Continue Reading]

Tesla Autopilot Goes to Court
By Mark Pratzel

Tesla is facing its first U.S. product liability litigation challenging its Autopilot autonomous vehicle (AV) technology in a putative class action filed in Federal Court in San Jose, California. The three named plaintiffs are owners of Tesla Model S cars in Colorado, Florida, and New Jersey, who paid between $81,200 and $113,200 for their vehicles, including a $5,000 premium for Tesla’s “Enhanced Autopilot” 2.0 AV software. Each plaintiff claims that both the Autopilot “Standard Safety Features” and Enhanced Autopilot features were non-functional at delivery and remained so when suit was filed. The plaintiffs claim that Tesla sold 47,000 vehicles with “dangerously defective” software, at least half of which were supposed to have Enhanced Autopilot. They refer to it derisively as “vaporware,” which they define as “computer software that is advertised but still nonexistent.” [Continue Reading]

“Innocent Seller” Statutes: More Warnings, Less Protection
By Dan Jaffe

In Davis v. Dunham’s Athleisure Corp. (E.D. Mo., 2017), the U.S. District Court for the Eastern District of Missouri recently ruled that a firearms retailer was not entitled to the protection of Missouri’s “innocent seller” statute because it gave additional warnings and directions to the buyer beyond the manufacturer’s warnings. In Davis, the plaintiff bought a used rifle from the defendant retailer, Dunham’s Athleisure Corporation. The rifle was sold to Dunham’s by Century International Arms, Inc.  Plaintiff was injured when the rifle exploded. Dunham’s moved for dismissal under the Missouri “innocent seller” statute, §537.762.1, RSMo. [Continue Reading]

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Technology, Manufacturing & Transportation
Product Liability Practice

Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]

Product Liability Monitor Archive
April 2017

 

Product Liability Monitor

April 10, 2017
New Developments
I Like It, But Do I Trust It? Drivers Weigh In on Autonomous Vehicle Technology
By Shannon Peters

The American Automobile Association (AAA) recently released the results of a survey of American drivers which yielded an interesting conclusion:  Americans want autonomous vehicle (AV) technologies in their next vehicle, but they are not sold on fully self-driving cars.The AAA survey indicates that 75 percent of Americans would be afraid to ride in a self-driving vehicle, and more than half would feel less safe sharing the roads with a self-driving car. Not surprisingly, younger generations are slightly less afraid of this developing technology than their older counterparts. [Continue Reading]

Walking the Lone Pine Trail
By Alan Hoffman

Lone Pine orders take their name from Lore v. Lone Pine Corp. They are most often entered in toxic tort litigation, requiring plaintiffs to provide some prima facie evidence to support causation or other claims based on expert opinion. Typically, such orders call for expert affidavits or other evidence supporting a claimed connection between the plaintiff’s condition and defendants’ products. [Continue Reading]

Due Process Limits on Personal Jurisdiction
By Dan Jaffe

In recent years the United States Supreme Court has strengthened the due process protections for defendants against suits in states with which they have no meaningful contacts. In J. McIntyre Machinery, Ltd. v. NiCastro, the plaintiff sued the British manufacturer of a metal-shearing machine in New Jersey, where he was injured. The defendant neither marketed nor sold its products in that State. It sold its machines nationwide through an independent U.S. distributor, but defendant’s representatives were never present in New Jersey. In any event, no more than four of its machines ended up in New Jersey. The Court held that exercise of judicial power over a defendant is unlawful unless the defendant purposefully avails itself of the privilege of conducting activities within the forum State. [Continue Reading]

Connect with us: Blog | Twitter | LinkedIn
Technology, Manufacturing & Transportation
Product Liability Practice

Manufacturers work hard to develop material goods and product designs that are high-quality, safe and durable. We understand your commitment to excellence and commit ourselves to defending you against product liability allegations. Husch Blackwell’s Product Liability team has insight into your industry-specific challenges. [More information]

Product Liability Monitor Archive
March 2017

brockhoert_leslie cockerham_stephenMore and more it seems disputes are occurring over what information the EEOC may subpoena from employers. On April 3, 2017, the U.S. Supreme Court issued its ruling in McLane Co. v. EEOC, weighing in on the standard of review on appeal when district courts either enforce or quash an EEOC subpoena.

Before discussing the case, let’s first address how we get to an appeal of such an issue:

Continue Reading EEOC Subpoenas—The Supreme Court Weighs In on the Standard of Review

Patent InfringementIn a 7-1 decision Tuesday, the U.S. Supreme Court ruled that laches cannot be a defense in many patent infringement cases. The Federal Circuit previously ruled that laches, which bar suits after unreasonable delays, prevented SCA Hygiene Products AB from suing their competitor First Quality Baby Products LLC. Tuesday’s Supreme Court ruling in SCA Hygiene Products v. First Quality Baby Products rejects this, noting that since Congress has imposed a six-year limitation on damages in patent cases, laches cannot be used to shorten that period. The ruling is available to read here.

For more information, read our legal alert or contact Rudy Telscher or Sam Digirolamo.