Tag Archives: Business and Law

Never Trust A Vampire Squid: Merger Clauses & Fraudulent Inducement

Rolling Stone’s Matt Taibbi described Goldman Sachs as “a great vampire squid wrapped around the face of humanity,” a phrase that, while defamatory of a uniquely adapted cephalopod minding its own business 3,000 feet under the sea, rang true. Yesterday, the intermediate appellate court for New York state agreed: Goldman Sachs is so obviously dishonest that you cannot sue them for fraud unless you get them to specifically agree that they aren’t lying to you.   First, the facts. In essence, Goldman Sachs brought in a hedge fund (Paulson & Co.) to put together a group of horrible investments (called ... Continue Reading

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Another Twombly/Iqbal Victory for Plaintiffs: SCOTUS Denies Certiorari for Digital Music Price-Fixing Case

If you're a reader of this blog, you're undoubtedly familiar with Bell Atlantic v. Twombly and Ashcroft v. Iqbal, a pair of Supreme Court cases which altered the pleading standards applicable to civil cases filed in federal court. Defense lawyers have jumped all over those two opinions in an attempt to dismiss lawsuits — particularly complex commercial class actions, like antitrust cases — before any discovery can be taken. Every lawsuit, they claim, no matter how detailed and compelling, is "implausible" under Twombly and Iqbal. I taught CLEs to help other trial lawyers defeat those arguments. Back when the Iqbal ... Continue Reading

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Ninth Circuit Says “Make Love, Not Warcraft” In The Glider Copyright Infringement Case

If the title doesn't ring a bell, read here. The whole Emmy-award-winning episode is here. It always amazes me how much of the global economy is devoted to technological cat-and-mouse games; for every gadget, industrial process, or computer program out there, there are a dozen companies trying to reverse-engineer or manipulate it. "Glider" was an aptly-named bot which allowed World of Warcraft ("WoW") players to glide through the first few levels of the game without doing much, and thus obtain "experience" for their online avatars, thereby proving Bruce Campbell wrong. Blizzard Entertainment, publishers of WoW, were understandably upset about Glider, and ... Continue Reading

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Attorneys’ Fees In “Exceptional” Lanham Act Suits: A Review of the Circuits

Via How Appealing, the Seventh Circuit has a new opinion (Nightingale Home Healthcare v. Anodyne Therapy) by Judge Posner on when a Court may award attorneys' fees in Lanham Act (i.e., trademark infringement, trademark dilution, and false advertising) cases. The Lanham Act itself doesn't give much guidance on when attorneys fees may be awarded: "The court in exceptional cases may award reasonable attorney fees to the prevailing party." 15 USC § 1117(a). So what the heck does that mean? First, a little history as to why the statute is there at all. Per the opinion: [I]n Fleischmann Distilling Corp. v. ... Continue Reading

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The Real Value Of A Lawyer: Medieval Apple Tarts and Conan O’Brien

Lawyers have a lot of technical training and experience. They spend three years in a hybrid humanities / vocational graduation school, devote a few months to cramming a summary of one or two state's laws into their brains, regurgitate and forget it all over two or three days, then spend a couple years learning, through bruising experience, archaic and frustrating — but utterly essential — issues like how to convince a prothonotary to praecipe a motion for disposition or how to suppress the fruit of the poisonous tree. But you don't hire a lawyer just so they can apply that ... Continue Reading

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Mark Zuckerberg On His Co-Founder: “just take the lawsuit…I’m just going to cut him out and then settle with him”

I already made one post out of The Social Network (i.e., Why Mark Zuckerberg Won't Sue For Defamation Over The Facebook Movie), which is one more than I expected, but apparently there's another legal issue in there. Gawker and Business Insider published a scoop yesterday on the "dirty tricks" that Mark Zuckerberg used to force co-founder Eduardo Saverin out of the company. Relevant to our interests: As that first summer went on and TheFacebook.com grew more popular than anyone imagined, the company needed money to keep running. Finding investors wasn't hard. As early as July, Silicon Valley bigwigs like Mark Pincus, ... Continue Reading

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An Associate’s Guide To White Dress Shirts, Ladders, and Bootstraps

Over at the Delaware Corporate and Commercial Litigation Blog, Francis Pileggi highlights one of the many quirks of practice in Delaware: Professor Bainbridge discusses an article here from The Wall Street Journal that quotes a Delaware Superior Court judge in connection with a dress code for those who appear in his court. Most Delaware lawyers know that it is at least an unwritten rule that a "white dress shirt" is expected of lawyers who appear in a Delaware court. Delaware, it must be said, has among the most formal and quaint procedures I've ever seen. Even though, as Pileggi previously pointed ... Continue Reading

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Oracle v. Google: Litigation As Negotiation By Other Means, Or As Total War?

As widely reported by every tech site on the internet, last week Oracle (which recently acquired Sun Microsystems) sued Google for infringing upon a variety of software patents Sun obtained while developing the Java software platform. For the facts, I can't improve upon the fine commentary at Groklaw, CNet, and tech-specific sites like RedMonk. James Gosling, inventor of Java programming language, has even commented on it. Two conclusions are inescapable: Sun could have, but chose not to, sue over the same patents, likely (at least in part) to preserve goodwill with the developers who used the Java framework; There's a ... Continue Reading

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Sen. Dodd’s Financial Reform Protects National Banks At The Expense Of Consumers, Investors and Taxpayers

With the health care debate over for now, Congress has moved on to "financial reform." If you don't recall, a small group of elite bankers at national banks spent the past 20 years or so making billions of dollars in profits by lobbying the Federal Reserve to adopt senseless and irresponsible policies that enabled the national banks to almost literally print their own money. Somewhere along the way, the recklessness that banks had encouraged everyone else to engage in made its way back into them. The banks made several trillion dollars worth of stupid bets — not "investments," just plain ... Continue Reading

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Studies Confirm Public Pension Securities Fraud Lawsuits Are Driven By Fraud, Not Pay-For-Play

Kevin LaCroix at The D&O Diary reports, On March 24, 2010, Cornerstone Research released its annual study of securities class action lawsuit settlements. The most recent study, which is entitled "Securities Class Action Settlements: 2009 Review and Analysis" and is written by Ellen M. Ryan and Laura E. Simmons, can be found here. Cornerstone’s March 24, 2010 press release concerning the study can be found here. The study reflects a number of interesting observations about median and average securities class action lawsuit settlements that were approved during 2009. The study also includes a useful analysis of the factors that affect settlement ... Continue Reading

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