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

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

Product Liability Monitor

July 8, 2016
New Developments
Federal Preemption of Pesticide Failure to Warn Claims
By Alan Hoffman

In 2005, the United States Supreme Court decided Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), concerning preemption of state law failure to warn claims by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136 et

Court stepsThe Supreme Court has agreed to hear two cases with substantial repercussions for certain areas of copyright and patent practice.  Star Athletica, LLC v. Varsity Brands, Inc. may have a significant impact on how companies protect products with ornamental designs that are integrated with useful articles.  In the patent arena, SCA Hygiene Products v. First Quality Baby Products, LLC promises to influence patent litigation practices as it concerns whether prejudicial delay (“laches”) may be a defense to legal remedies in patent cases brought within the statute of limitations period.  Amicus briefs on these cases will be due starting in July.
Continue Reading Amicus Briefs Due Soon in Supreme Court Copyright and Patent Cases

Earlier this week the Supreme Court issued its decision in Tyson Foods, Inc. v. Bouaphakeo, No. 14-1146, affirming the Eight Circuit’s decision to not disturb a jury verdict against Tyson where the district court permitted the jury to draw an inference of class-wide liability based on representative or statistical evidence.
Continue Reading Tyson Decision Delivers Narrow Lessons for, But No Knockout to, Class Actions

Over the past few years, we have been reporting on the full frontal assault against patent assertion entities (PAEs), pejoratively referred to as patent trolls in blog posts in troll tollMay 2014, July 2014 and December 2014. Actions to curb these perceived pariahs of the US economy have come from nearly every angle of attack including the White House, Congress, the Federal Trade Commission and all the way down to various state houses. Although much has happened on many of the fronts we have previously reported, much has stayed the same. We thought now would be a good time to reflect over the last year’s activities to see if the strategy of patent litigation as a business is truly nearing its demise.

Continue Reading What is Up with Patent Reform, and What About Those Darn Trolls?

The Supreme Court, in a 6-2 landmark decision issued January 25, 2016, in Fed. Energy Regulatory Comm’n v. Elec. Power Supply Ass’n, 136 S.Ct. 760, 193 L.Ed.2d 661 (2016), upheld FERC Order No. 745 and ruled that the Federal Energy Regulatory Commission (FERC) Electric Energyhas authority to establish demand response rules and rates in wholesale power markets. FERC’s rules call for payments to large energy users that reduce their electric usage during periods of high electricity demand.

The Court of Appeals for the District of Columbia Circuit had vacated Order No. 745, ruling among other things that FERC had overstepped its authority and directly interfered with the states’ exclusive right to regulate the retail electricity market.

Continue Reading The Supreme Court Upholds FERC’s Authority Over Demand Response Payments Bringing Smiles To Big Energy Users


If you are planning, like many of us, to ring in the new year in the usual, festive manner – while enjoying a few libations, you will likely want to consider first how you plan to get home from the shindig. If you are one of the seemingly few who actually do plan ahead for just such an occasion, you have a number of viable options for your return trip.  Folks in most major cities around the country now have Uber, the Scooter Guy, and the old fashioned Yellow Cab options, among others, to choose from when the fun is over and driving home isn’t an option.  If you are not one of those “planners,” now may be a good time to make an early New Year’s resolution to become one.

Continue Reading DUI Testing Rules

LegalPillars_106563959Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir., 2014), cert. granted, 2015 WL 246885 (2015).

This week’s grant of certiorari in Gomez presents the possibility for major changes in the defense of class actions involving relatively small individual damages.

Gomez filed a class action after receiving an unsolicited text message from Campbell, a marketer for the US Navy. Gomez claims the text violates the Telephone Consumer Protection Act (TCPA). Before the District Court could rule on class certification, Campbell offered Gomez full statutory damages ($1,503) plus reasonable costs in an effort to moot the class action. Gomez refused the offer. Both the District Court and the Ninth Circuit held that an unaccepted settlement offer for the full amount of the plaintiff’s damages did not moot either his claim or the class claim.

Continue Reading Is the End in Sight for Consumer Class Actions?