NFL Lockout Injunction Reversal: Using Labor Law Against Employees

Big news in the sporting and antitrust litigation worlds — which overlap considerably — on Friday when the U.S. Court of Appeals for the Eighth Circuit (which hears all appeals in federal cases filed in the states between North Dakota, Minnesota, Arkansas, and Nebraska), reversed a preliminary injunction imposed by the U.S. District Court for the District of Minnesota prohibiting the NFL owners from imposing a “lockout” on players. The order is posted here; when I reference Opinion and Bye Dissent below, I'm referring to that PDF. Two judges, Colloton and Benton (both appointed by George W. Bush — hold that ... Continue Reading

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Third Party Litigation Funding CLE Hosted By The Pennsylvania Bar Institute

 You know what’s cool? Apparently a billion dollars isn’t cool, according to Sean Parker, no matter what Justin Timberlake in The Social Network might have to say about it. But what is cool is third-party litigation financing. Don’t believe me? Binyamin Appelbaum at the NYTimes and the Center for Public Integrity did a whole series on it called “Betting on Justice,” (here’s the same piece at the CPI) with a Room for Debate piece on it called “Investing in Someone Else’s Lawsuit.” The American Bar Association, nudged by the series, has set up a working group to examine the issue. ... Continue Reading

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17P & Makena: Exploiting Premature Birth For Billions In Profit

Update, September 7, 2012: More than a year ago, I wrote "It's possible KV will sue the FDA over [the decision not to go after compounding pharmacies] — arguing, in essence, that the FDA is disobeying its own statutes and regulations, and thus in violation of the Administrative Procedures Act ..." That happened in July, but the case was just dismissed. Next step is inevitably an appeal. I hope, for the sake of patients, they do not succeed, but quite frankly they have a valid argument. 17-P should never have been given orphan drug status in the first place.   Preemies ... Continue Reading

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The Scary New World Of E-Discovery Artificial Intelligence In Big Lawsuits

The NYTimes had an article this weekend about the growing number of e-discovery vendors who can go beyond mere keyword searches into linguistic and sociological reasoning about millions of pages of documents: [T]hanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000. Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in ... Continue Reading

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Charlie Sheen, The Morals Clause, And Legal Indeterminacy

[UPDATE II: As I wrote below,  Sheen "held up his end of the bargain." The Hollywood Reporter says that case is settled and he's walking away with $25 million and a reinstatement of his revenue stream from Two And A Half Men.] [UPDATE: Above the Law parses the termination letter sent to Charlie Sheen. The reasons given for his termination are surprisingly weak; fact is, Sheen's lawyers got the better of Warner Bros. in negotiating such a favorable contract for him.] I'm litigator and trial lawyer, and so do not normally get involved in contracts until after everything has fallen ... Continue Reading

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The Best Way To Prove “Predominance” In Generic Pharmaceutical Antitrust Class Actions Alleging Patent Misuse

There's been a wave of antitrust class actions predicated on patent misuse by pharmaceutical companies of the past decade. The troublesome Illinois Brick decision prevents "indirect purchasers" — which means you, me, and our health insurance plans — from bringing federal antitrust claims, so plaintiffs' lawyers have had to get creative in use of state law to obtain relief for companies that have been overcharged for their medication, like the Sheet Metal Workers tried to do with the Pennsylvania Unfair Trade Practices and Consumer Protection Law (PUTPCPL). Given decades of efforts by anti-competition legislatures and judges to undermine consumer fraud ... Continue Reading

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Investing In Lawsuits, Part III: Here Come The Banks and Hedge Funds

On Sunday, the New York Times returned to third-party funding of lawsuits with "Investors Put Money on Lawsuits to Get Payouts:" Large banks, hedge funds and private investors hungry for new and lucrative opportunities are bankrolling other people’s lawsuits, pumping hundreds of millions of dollars into medical malpractice claims, divorce battles and class actions against corporations — all in the hope of sharing in the potential winnings. ... Total investments in lawsuits at any given time now exceed $1 billion, several industry participants estimated. Although no figures are available on the number of lawsuits supported by lenders, public records from ... Continue Reading

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Wall Street Law Firms Band Together To Complain About Judge Rakoff – And Are Ignored

Via the Am Law Daily, the Wall Street Journal had an article about an effort by Bank of America's lawyers — at Wachtell, Davis Polk, and Cleary Gottlieb — to keep Judge Jed Rakoff from presiding over a shareholder class action against them: Bank of America Corp. tried to keep cases pending against it from landing with U.S. District Judge Jed Rakoff, in the hopes of avoiding another dramatic confrontation with the judge over the bank's handling of the Merrill Lynch & Co. takeover. It got the outcome it wanted, though not necessarily thanks to its efforts. The nation's largest bank ... Continue Reading

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Judge Rakoff (S.D.N.Y.) Enjoins J.P. Morgan From Selling Loan To Telecommunication Company’s Competitor

Felix Salmon at Reuters caught something interesting: [T]he facts of the case are pretty clear. The relationship between JP Morgan and Televisa goes back decades, and so JP Morgan was the natural choice for Televisa to turn to when it decided to buy a fiber-optic cable company called Bestel for $325 million, $225 million of which was to come from Televisa subsidiary Cablevisión. JP Morgan intended to syndicate the loan, but the timing was bad: the deal closed in 2008, when credit markets were all but closed, and as a result JP Morgan ended up owning all of it. After ... Continue Reading

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E.D.Pa. Finds Arbitration Agreement Inapplicable To Tortious Interference Health Care Litigation

As I’ve written before, health care is “one of the ugliest businesses in America.” Health care litigation is often just as contentious. Today’s example comes from Robotics v. Deviedma, No. 09-cv-3552, 2009 U.S. Dist. LEXIS 112077 (E.D. Pa. Nov. 30, 2009), which denied in part and granted in part Defendants’ motion to dismiss. The facts: Health Robotics, S.r.L. ("HRSRL") is an Italian company that designs, develops, markets and licences robotic medical preparation products. Plaintiff, Devon Robotics, signed two agreements with HRSRL for the distribution of two robotic medication preparation products for hospitals and health care facilities, i.v.Station and CytoCare. … At ... Continue Reading

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