Litigation & Procedure eJournal最新文献

{"title":"Regulating Patent Assertions","authors":"Paul R. Gugliuzza","doi":"10.1017/9781316415887.006","DOIUrl":"https://doi.org/10.1017/9781316415887.006","url":null,"abstract":"Recent years have seen a proliferation of statutes regulating and lawsuits challenging patent enforcement conduct. The Federal Circuit, however, has held that acts of patent enforcement are illegal only if there is clear and convincing evidence both that the patent holder’s infringement allegations were objectively baseless and that the patent holder knew or should have known its allegations were baseless. This chapter summarizes recent efforts by state governments and the federal government to control patent enforcement behavior, questions the broad immunity the Federal Circuit has conferred on patent holders, and seeks to improve pending federal legislation governing patent enforcement. In the past three years, the Supreme Court has twice overturned Federal Circuit case law embracing objective/subjective tests similar to the court’s immunity rule. A more flexible standard, focused on the patent holder’s good faith or bad faith, would not only accommodate the Supreme Court’s disdain for rigid rules in patent law, it would accord with a century of well-reasoned regional circuit and district court case law that the Federal Circuit has ignored. More importantly, a good-faith standard would allow courts to condemn the questionable tactics lately deployed by so-called bottom feeder patent trolls while still respecting patent holders’ rights to make legitimate allegations of infringement. Although pending federal legislation to regulate patent assertions would rely heavily on the Federal Trade Commission for implementation, this chapter sketches a regulatory model that emphasizes the comparative advantages of both state governments and the federal government. The federal government’s strengths include Congress’s ability to provide a uniform legal standard governing patent assertions and to clarify questions of personal and subject matter jurisdiction that arise in cases challenging patent enforcement conduct. By contrast, state governments, as well as private parties, have a superior ability to identify unfair or deceptive patent assertions and to pursue lawsuits against patent holders who violate the law. A model of cooperative federalism, grounded in these functional considerations, would deter and punish overzealous patent enforcement with minimal uncertainty about what, exactly, the law prohibits.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131730314","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Venezuela v. Helmerich: Will Formalism Win Over Substantive Law? Again?","authors":"S. Grossi","doi":"10.2139/SSRN.2849182","DOIUrl":"https://doi.org/10.2139/SSRN.2849182","url":null,"abstract":"The essay offers an analysis of Venezuela v. Helmerich & Payne International, a case to be argued before the Supreme Court on November 2. That case involves the interpretation and application of the Foreign Sovereign Immunities Act (FSIA). The question presented is whether, when pleading jurisdiction under the expropriation exception to the FSIA, a higher pleading standard should be employed, one under which it is necessary to show that there “actually is” a claim, essentially requiring the plaintiff to establish something more exacting than the plausibility standard. The Petitioners’ argument in Helmerich presents a classic example of arguing from a conception — sovereign immunity — to an abstract but controlling proposition of law. A more realistic approach, one that examines the facts, is put to the side in the interest of the conception. This essay resists that approach and promotes a jurisdictional and pleading analysis that is conducive to the evolution of substantive law and the enforcement of substantive rights.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"56 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134575531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"An Empirical Analysis of Litigation with Discovery","authors":"Mark van Boening, Paul Pecorino","doi":"10.2139/ssrn.2816642","DOIUrl":"https://doi.org/10.2139/ssrn.2816642","url":null,"abstract":"We conduct an experimental analysis of discovery in both the signaling and screening games, where in both games an uninformed defendant may engage in costly discovery. Under the theory, the defendant should invoke the costly discovery procedure in the screening game, but not in the signaling game. In the later part of the screening game, discovery is invoked in 73% of all negotiations, which is strongly in the direction implied by theory. However, rather than lower the defendant’s expected cost, discovery is approximately a breakeven proposition. The reasons are that the defendant cannot, as implied by theory, extract the entire surplus from settlement with his offer and because there are excess disputes not predicted by the theory. In the signaling game we find, contra the theory, that discovery is invoked about 61% percent of the time, and this behavior persists into the later rounds of the experiment. While invoking discovery is predicted to reduce his payoff, the effect on the defendant’s cost is not statistically different from zero. The offers the defendant receives after invoking discovery contain surplus not predicted under the theory. There is mixed evidence regarding whether discovery reduces the societal cost of disputes.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122783207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"After Halliburton: Event Studies and Their Role in Federal Securities Fraud Litigation","authors":"Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick","doi":"10.2139/ssrn.2865815","DOIUrl":"https://doi.org/10.2139/ssrn.2865815","url":null,"abstract":"Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly. This Article explores an array of considerations related to the use of event studies in securities fraud litigation. It starts by describing the basic function of the event study: to determine whether a highly unusual price movement has occurred and the traditional statistical approach to making that determination. The Article goes on to identify special features of securities fraud litigation that distinguish litigation from the scholarly context in which event studies were developed. The Article highlights the fact that the standard approach can lead to the wrong conclusion and describes the adjustments necessary to address the litigation context. We use the example of six dates in the Halliburton litigation to illustrate these points. Finally, the Article highlights the limitations of event studies – what they can and cannot prove – and explains how those limitations relate to the legal issues for which they are introduced. These limitations bear upon important normative questions about the role event studies should play in securities fraud litigation.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"225 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133917125","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"American Gavel Across Borders: An Empirical Study of U.S. District Court Cases on Extraterritorial Exercise of Civil Jurisdiction","authors":"Damira Khatam","doi":"10.2139/ssrn.2816554","DOIUrl":"https://doi.org/10.2139/ssrn.2816554","url":null,"abstract":"U.S. districts courts have been increasingly faced with international cases that involve foreign litigants and foreign conduct. Despite an abundance of doctrinal analyses on the U.S. Supreme Court’s decisions involving extraterritorial civil jurisdiction, there are abysmally few empirical studies that look at the patterns of decision-making in lower federal courts. This research attempts to fill the gap and examines 228 decisions dealing with extraterritoriality rendered from 2000 to 2015. At the outset, our findings reject the common narrative in legal scholarship that U.S. courts over-extend their jurisdiction abroad and engage in legal imperialism. Despite the overall increase in the number of extraterritorial cases, courts assert jurisdiction in only 43% of them. We examine several factors that might explain the outcomes in these cases and find strong evidence that claims involving conduct that took place in developed countries have a higher likelihood of being dismissed on jurisdictional grounds than those in developing countries. We also find that, similar to the overall domestic litigation trends, individual plaintiffs face lower likelihood of having their claims survive the jurisdictional challenge than corporate plaintiffs. We find weak or no evidence of difference in the outcomes between economic claims, such as for example securities or antitrust claims, and non-economic claims that include extraterritorial tort, environmental and employment discrimination claims. Similarly, we do not find statistically significant effect of comity and foreign policy arguments on the outcomes.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131669547","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Effecting a Culture Shift -- An Empirical Review of Ontario's Summary Judgment Reforms","authors":"Brooke MacKenzie","doi":"10.60082/2817-5069.3190","DOIUrl":"https://doi.org/10.60082/2817-5069.3190","url":null,"abstract":"Lawyers and policymakers in Canada frequently discuss the need for access to justice reform, but concrete efforts to improve the efficiency and cost-effectiveness of civil justice are few and far between. Unfortunately, even when reforms are implemented, measures are rarely put in place to empirically assess whether the reforms were effective. Ontario’s Civil Justice Reform Project inspired a package of amendments to Rules of Civil Procedure in 2010 but, aside from anecdotal reports, little is known about whether they achieved their desired effects. This paper presents an empirical analysis of all reported summary judgment decisions in Ontario between 2004 and 2015, in order to explore whether amendments to the summary judgment rules actually improved the efficiency and affordability of the civil justice system as was intended. By reviewing trends in the number and outcomes of summary judgment motions throughout the study period, we can conclude that the amendments to Ontario’s summary judgment rules have made strides towards their intended goal. Since the reforms, we observe an increase in the number of summary judgment motions determined, an increase in the number of summary judgment motions granted, and, broadly, an increase in the proportion of successful summary judgment motions. The data analyzed in this study suggest that the “culture shift” promoted by the Supreme Court of Canada following the implementation of the new rule is in fact underway.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"136 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122750958","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Strategic Decision Making in Dual PTAB and District Court Proceedings","authors":"Saurabh Vishnubhakat, A. Rai, J. Kesan","doi":"10.15779/Z38XG2G","DOIUrl":"https://doi.org/10.15779/Z38XG2G","url":null,"abstract":"The post-grant review proceedings set up at the U.S. Patent and Trademark Office’s Patent and Trial Appeal Board by the America Invents Act of 2011 have transformed the relationship between Article III patent litigation and the administrative state. Not surprisingly, such dramatic change has itself yielded additional litigation possibilities: Cuozzo Speed Technologies v. Lee, a case addressing divergence between the manner in which the PTAB and Article III courts construe patent claims, will soon be decided at the U.S. Supreme Court.Of the three major new PTAB proceedings, two have proven to be popular as well as controversial: inter partes review and covered business method review. Yet scholarly analysis of litigant behavior in these proceedings has been limited thus far to descriptive data summaries or specific policy perspectives on these types of post-grant challenges, such as their impact on the well-rehearsed patent troll debate. In this article, we present what is to our knowledge the first comprehensive empirical and analytical study of how litigants use these inter partes review and covered business method review proceedings relative to Article III litigation.A major normative argument for administrative ex post review is that it should be an efficient, accessible, and accurate substitute for Article III litigation over patent validity. We assess the substitution hypothesis, using individual patents as our general unit of analysis as well as investigating patent-petitioner pairs and similar details in greater depth. Our data indicate that the “standard model” of explicit substitution — wherein a district court defendant subsequently brings an administrative challenge to patent validity — occurs for the majority (70%) of petitioners who bring inter partes review challenges. An important implication of this effect is that the PTAB should use a claim construction standard that mirrors that of the district court. With a uniform standard, PTAB claim constructions could be used by district courts in any subsequent proceedings, and the benefits of substituting administrative process for judicial process would thereby be most fully realized.Notably, however, standard substitution is not the only use of the PTAB: particularly in the area of inter partes reviews, we also see a surprising percentage of cases (about 30%) where the petitioner is not the target of a prior suit on the same patent. The frequency of these nonstandard petitioners, as well as their tendency to join the same petitions as an entity that has been sued, varies by technology. Our data on nonstandard petitioners provide some insight into the extent to which patent challengers are engaging in collective action to contest the validity of patents. Depending on the details of how nonstandard petitioning and collective action are being deployed, this activity could provide a social benefit or constitute a form of harassment.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127376898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Private Fund Investor Due Diligence – Evidence from 1995 to 2015","authors":"Wulf A. Kaal","doi":"10.2139/SSRN.2811718","DOIUrl":"https://doi.org/10.2139/SSRN.2811718","url":null,"abstract":"The importance of private fund investor due diligence in the investment allocation process, in capital formation, and in private fund litigation has reached unprecedented levels and is further increasing. To provide the industry with data, data trend analyses, and guidance on applicable legal standards, the author examines two datasets: (1) private investment fund advisers’ SEC Form ADV II filings from 2007 to 2014 (N=100392), and (2) the publicly available litigation record pertaining to private fund investor due diligence from 1995 to 2015 (N=572). After highlighting important changes in the quality and quantity of private fund investor due diligence in SEC Form ADV Part II, the author evaluates the corresponding litigation record and analyzes expert guidance on applicable best practices.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"80 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122239338","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Why Daimler Accommodates Personal Jurisdiction in Mass Tort Litigations","authors":"A. Golanski","doi":"10.2139/ssrn.2791643","DOIUrl":"https://doi.org/10.2139/ssrn.2791643","url":null,"abstract":"National and international marketing of defective, toxic or otherwise hazardous products has engendered large-scale mass tort litigations. Unified administration of mass torts in centralized venues serves numerous functional, fairness, efficiency and consistency objectives. Requisite is the forum court’s exercise of personal jurisdiction over the parties. Recently, the Supreme Court has undertaken to reformulate the constitutional parameters of general and specific jurisdiction, in opinions authored by Justice Ruth Bader Ginsburg. Those opinions, culminating in Daimler, self-consciously apply Arthur von Mehren and Donald Trautman’s scholarship set forth in their 1966 Harvard Law Review article “Jurisdiction to Adjudicate.” Neither Daimler nor Justice Ginsburg’s other jurisdictional opinions address mass torts, and Daimler is vulnerable to misinterpretation if applied in the mass tort context without reference to Jurisdiction to Adjudicate and related scholarship. Von Mehren and Trautman endorsed the turn to a functional and fairness approach responsive to the “practical necessities” of the modern litigation scene, and thereby promoted the “unified administration” of multistate actions capable of responding to “the situation as a whole.” Daimler’s theoretical underpinnings demonstrate that the ruling accommodates personal jurisdiction over multistate entities in mass tort litigations.","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-06-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121518336","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Primer on Interlocutory Injunctions","authors":"J. Berryman","doi":"10.2139/ssrn.3309921","DOIUrl":"https://doi.org/10.2139/ssrn.3309921","url":null,"abstract":"In an ideal world justice would be dispensed instantaneously and the incursion of any form of interlocutory loss, irreparable of not, would be avoided. In an imperfect world we need to learn to live with law’s complexity, human frailty, evidential uncertainty, limited resources, and the inevitable passage of time that passes when these are engaged. Law, like any other human construct that takes thought to digital page, simply takes time. Just as an infinite number of monkeys placed before typewriters takes time to recreate the works of Shakespeare, time also passes between an applicant’s assertion of a wrong, and establishing the legal framework upon which those claimed rights are to be determined. Uncertainty and delay can arise in the need to establish a claimed right, as in where the right is novel or only in nascent form. Delay can emerge from the gathering of evidence particularly where the action is going to be determined largely on an affidavit record. Similarly, because the evidence is written and not subject to cross examination, it is open to divergent interpretations. Even if the best counsel can over come the aforementioned difficulties, they face resource constraints in terms of judicial and court time. Unlike health care where there are now standards for wait times there are no similar standards for court hearings. <br><br>Between the ideal and the real, interlocutory relief exists as a form of paradoxical justice. It is not perfect justice because it is decided under less than ideal trial circumstances, yet it purports to do justice by minimizing a loss for which the applicant will never be able to recover. While an applicant has a right to a civil judgment following proof of a legal cause of action and meeting the requisite level of evidence, there is no equivalent right, outside one conferred by statute to jump the queue or to obtain an interlocutory injunction. <br><br>The real world is also a dynamic one in which a variety of contextual issues frame the need and desire for interlocutory relief. Even at inception of the American Cyanamid test, Hammond identified how the difference in dealing with affidavit evidence on both sides of the Atlantic, i.e. allowing for limited cross examination in Canada, would impact upon the potential credibility of the evidence and thus the veracity courts would give to it. Post 1975, transformations in civil procedure, particularly simplified proceeding, case management, and status reviews, have all increased the control exercised by courts to hasten litigation through the adjudicative process and indirectly lessen the need for interlocutory relief. Buttressed by these procedural changes, some courts are now more willing to deny or suspend granting interlocutory relief in return for an undertaking from the parties to expedite the trial process, or to keep records that will make it easier to quantify damages. The ebb and flow of interlocutory injunctions is greatly influenced by all these externali","PeriodicalId":113747,"journal":{"name":"Litigation & Procedure eJournal","volume":"50 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131832369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}