Publications
In a recent public talk, Mary Jo White, former U.S. Attorney for the Southern District of New York, lamented that waiver of corporate privilege has become a litmus test for whether a company is cooperating with an investigation. Her lament is apt. Federal prosecutors increasingly demand waiver of attorney-client privilege and work product protection at […]
“This narrow isthmus ‘twixt two boundless seas,The past, the future, —two eternities!”Thomas Moore [1780-1852] Two classic American ideals, innovation and competition, have provided the foundation for two important areas of law, namely intellectual property and antitrust, respectively. These two areas, while purporting to foster the same worthy goal of maximum economic efficiency, often collide by […]
Intellectual property may well be a franchise system’s most important asset. The forms of intellectual property most commonly involved in franchising are trademarks, service marks, trade dress, copyrights, patents, and trade secrets. Franchisors rely on the different forms of intellectual property to varying degrees depending on the specific nature of their businesses, and the success […]
Ingrained in our legal system is “freedom of contract,” a concept originating in the late eighteenth and early nineteenth centuries and “based upon the natural law principle that it is ‘natural’ for parties to perform their bargains or pacts.” In tension with freedom of contract stands the equitable doctrine of unconscionability, which has been around, […]
Linda Randell, current chair of Infrastructure, the newsletter of the ABA Section of Public Utility, Communications and Transportation Law, and chair of the Utilities and Regulated Industries Department at Wiggin & Dana, would like to announce her first issue as editor-in-chief. Articles in the issue include: FERC’s new approach to market power Section chair’s column […]
Over the last fifteen years, franchisee associations have become a mainstay of the franchise community. Much like the development of labor unions in this country, franchise systems have witnessed the development and rise of franchisee associations as a powerful vehicle of franchisee representation and negotiation. While large franchise systems have co-existed with franchisee associations for […]
On Oct. 1, the U.S. Supreme Court will hear its first arguments of the term. Chances are, you won’t see it. The arguments won’t be broadcast on television or the Internet. But if you’re arguing a state supreme court appeal, there’s a decent chance you’ll find yourself on TV, as states are increasingly allowing electronic […]
As we close out this issue of Infrastructure, we are three months removed from the summer blackout, which served as a reminder that while much of our time is spent on financial and fiduciary issues, the industries in which we work are still premised on physical production and delivery. For that reason, the article on […]
Under Alaska’s constitution, the government cannot deny employment-related benefits to domestic partners of gay and lesbian state employees and retirees, while providing such benefits to the spouses of state employees and retirees, according to the Alaska Supreme Court’s ruling in Alaska Civil Liberties Union v. State of Alaska.
The current war against terrorism and post-war involvement with Iraq warrants a quick review of the recently enacted Service Members Civil Relief Act, 50 U.S.C. App. 501, Pub. L. No. 108-189,117 Stat.2835 ( effective Dec. 19,2003). This Act is a restatement, clarification and revision of the Soldiers’ and Sailors’ Civil Relief Act of 1940 , […]
Roughly half of all leading franchisors’ franchise agreements require arbitration of disputes. One of the primary reasons that franchisors choose arbitration is the perception that arbitration awards are typically more rational than jury verdicts, and less likely to produce grossly excessive recoveries for franchisees. Arbitration has also been viewed as an effective risk management tool […]
The general counsel of AJAX Corporation is on the phone. AJAX has just been sued for breach of contract and associated was a distant state court renowned for its hostility to outsiders, fondness for hometown plaintiffs, and enthusiasm for heart-stopping punitive damage verdicts. Not surprisingly, the plaintiff wants a jury trial and a modest seven- […]
This issue is the first from Jack Dunham as our new editor-in-chief. He has decided to use his column on occasion for substantive commentary on a single issue. His column, in this issue, addresses arbitration, a subject on which he is exceptionally well versed and has written a number of articles. In particular, Mr. Dunham […]
As most of you probably know, most product liability claims in the U.S. are based on the doctrine of strict liability. This doctrine holds sellers of defective and unreasonably dangerousproducts responsible for injuries caused by those products, even without a showing of negligence. These products have included everything from food, furniture, and kitchen appliances to […]
On September 1, 2005, Representative Lamar Smith introduced a “coalition Print” version of a patent reform bill (Substitute bill H. R. 2795) into Congress. That bill included a post-grant opposition procedure not later than nine months after grant. On April 5, 2006, Representative Howard Berman introduced the “Patents Depend on Quality Act of 2006” (H.R. […]
Anticipating change and building integrity Hedge funds have been making headlines in major newspapers lately, and it is not all good news. Nor is it the first time in recent memory that the media has flocked to stories of hedge fund fraud, huge losses, lagging investor confidence, and possible increases in regulation or disclosure. The […]
“Justice, Justice Shalt Thou Pursue.” (Deuteronomy 16.20) This was the theme of an address by Seth P. Waxman, the former solicitor general of the United States, whom I had the honor to introduce at a recent event. As Waxman explained, pursuing “justice” is not to be confused with pursuing the “law.” This is not to […]
By Robert M. Langer and Thomas J. Witt1During the past twenty years, most-favored-nation (MFN) clauses have proliferated in contracts between third-party payers and health care providers throughout the country. These clauses, in their various forms, require the provider of health care services to guarantee to the third-party payer that the provider will charge to that […]
The communications industry is experiencing an unprecedented wave of mergers and acquisitions. Merging entities and their counsel are, of course, resigned to the fact that federal regulatory and antitrust enforcement agencies, as well as state public service commissions, must be consulted before most are finalized. It can, however, be unsettling, when the same merger that […]
As most lawyers know, the general rule that an appellate court will not consider an argument raised for the first time on appeal is riddled with exceptions and ambiguities. The Supreme Court made sure of that when it considered the issue and ‘[a]nnounced no general rule,’ instead leaving it ‘primarily to the discretion of the […]
While all nine statements in the Statements of Antitrust Enforcement Policy in Health Care were re-issued by the Federal Trade Commission (FTC) and the Department of Justice (DOJ) on Aug. 28, only Statement 8 on physician network joint ventures and Statement 9 on multiprovider networks were actually revised. The revisions to Statements 8 and 9 […]
For years, a debate has raged over where to draw the line between ensuring that large numbers of claimants alleging common injuries have meaningful access to the courts and protecting defendants’ substantive rights to demand proof of the elements of each plaintiff’s claim. The chief focus of this debate has been whether the courts have […]
Introduction The Antitrust Division of the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) released a revised version of their “Statements of Antitrust Enforcement Policy in Health Care” (“Guidelines”) on August 28, 1996. While all nine Statements contained in the Guidelines were reissued, only Statement 8 on physician network joint ventures […]
The Antitrust Division of the United States Department of Justice and the Federal Trade Commission Release Revised Antitrust Enforcement Guidelines The Antitrust Division of the United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) released a revised version of their “Statements of Antitrust Enforcement Policy in Health Care” (“Guidelines”) on August 28, […]
Non-profit hospitals and other non-profit or charitable health care organizations may be able to claim a limited exemption from the antitrust laws for the purchase and resale of supplies for their own use under the Non-Profit Institutions Act (15 U.S.C. § 13c.). In general, the Robinson-Patman Act prohibits the contemporaneous sale in interstate commerce of […]
“The difficulty in life is the choice. The wrong way always seems the more reasonable.” George Moore [1852-1933] I. INTRODUCTION At last year’s seminar, we considered the ex parte reexamination protocol in the context of down-side risks to the patentee associated with amendments and arguments that are part-and-parcel of a reexamination proceeding. This year we […]
Having spent twenty-one years in the service of the public, and the last four years in the private practice of law, I have taken on the task, perhaps quite presumptuously, of moralizing to two constituencies my current brethren and my former brethren. I have chosen two distinct sets of problems: (A) ineffective representation by some […]
The Antitrust Division of the U.S. Department of Justice, the Federal Trade Commission, and state attorneys general, as any antitrust aficionado knows, have dramatically improved the level of communication, cooperation, and coordination among themselves in the investigation and prosecution of antitrust violations during the past decade.1 Two important examples of such coordination are the 1998 […]
Reprinted with permission from Intellectual Property Today December 1998. Introduction Prior to 1952, an inventorship error was a death sentence for an issued patent. Patents that failed to name the exact combination of persons responsible for inventing the claimed subject matter were deemed invalid as a matter of law under 35 U.S.C. § […]
Reprinted with permission from IDEA the Journal of Law and Technology. Vol.39, no.2 1999. The Division of Patent Rights Among Joint Inventors Public Policy Concerns After Ethicon v.U.S. Surgical: Dale L. Carlson & James R. Barney 1 I. INTRODUCTION “[T]he Constitution recognizes an original, preexisting, inherent right of property in the invention and authorizes Congress […]