June 01, 2011

In this edition of The Spotlight, we highlight a number of important decisions issued by the Supreme Court in recent weeks as it wrapped up its Term and headed into its summer recess.  In a landmark victory for Jenner & Block’s clients and Supreme Court & Appellate practice, the Supreme Court struck down a California law prohibiting the sale or rental of “violent video games” to minors and requiring the packaging of such games to be labeled “18," ruling that the law violated the First Amendment.  In Sorrell v. IMS Health, Inc., the Supreme Court held that a law prohibiting “data mining” is an  unconstitutional restriction on data miners’ and pharmaceutical manufacturers’ freedom of speech, and thereby extended its streak of striking down restrictions on commercial speech as violative of the First Amendment.  In Janus Capital Group, Inc. v. First Derivative Traders, the Supreme Court held that a mutual fund advisor could not be subject to liability under Section 10(b) of the Exchange Act where the mutual fund advisor drafted the allegedly false statement contained in the prospectuses of the fund affiliated with the advisor, but did not “issue” the statement in its own name.  And in Schindler Elevator Corp. v. United States ex rel. Kirk, the Supreme Court ruled that a federal agency’s written responses to Freedom of Information Act requests are “reports” within the meaning of the False Claims Act’s bar on qui tam (whistleblower) suits based on public disclosures.  In American Electric Power Co., Inc. v. Connecticut, the Supreme Court held that the Clean Air Act displaces federal common law nuisance claims against carbon dioxide emitters, and thus blocked a theory of recovery that could have led to suits against a broad swath of corporate America.

The Court also issued several significant patent cases.  In Microsoft Corp. v. i4i Ltd. Partnership, the Supreme Court held – consistent with decades of Federal Circuit precedent – that a party challenging the validity of a patent must show invalidity by “clear and convincing evidence,” regardless of whether the evidence in question was before the Patent Office at the time the patent issued.  And in Global-Tech v. SEB, the Supreme Court held that a claim of induced patent infringement requires a showing that the alleged inducer knew that the induced acts would constitute infringement.  The Court also concluded that in this context willful blindness is equivalent to the required knowledge (but deliberate indifference is not).

We also discuss a variety of other interesting and significant developments.  We hope that you find this edition of the newsletter to be useful and informative.


David J. Bradford and Craig C. Martin
Co-Chairs Jenner & Block Litigation Department

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