March 01, 2011

In this edition of The Spotlight, we highlight a number of interesting and significant developments, including a number of decisions in evolving areas of the law: In Electronic Discovery, we discuss decisions holding that metadata (Nat’l Day Laborer Organizing Network) and forensic copies of destroyed thumb drives (Oce North America) must be produced and an order imposing a $1 million sanction for spoliation of electronic evidence (Victor Stanley). In Securities Litigation, we discuss the first administrative proceeding brought by the SEC under the Dodd-Frank Wall Street Reform and Consumer Protection Act against an outside director for an alleged insider trading violation (In re Gupta).

In several practice areas, we discuss important Supreme Court decisions and advocacy:

  • In Employment Law, we discuss the Court’s holding that Title VII’s antiretaliation provision allows a third party, who did not engage in any protected conduct, to pursue a claim that he was retaliated against due to his relationship with a person who did engage in protected conduct (Thompson).

  • In Products Liability, we discuss the Court’s recent preemption decisions: the National Childhood Vaccine Injury Act preempts state court actions alleging that injury or death resulted from the side effects of a vaccine that was properly prepared and accompanied by proper directions and warning (Bruesewitz), but the Federal Motor Vehicle Safety Standard 208 does not preempt state court claims relating to the use of a lapseat belt that was permitted by the federal standard (Williamson).

  • In the area of Class Actions, we report that the Supreme Court has agreed to decide whether claims for monetary relief can be certified under Rule 23(b)(2) (Dukes v. Wal-Mart Stores, Inc.). The case has attracted substantial interest, resulting in large numbers of amicus briefs on behalf of Wal-Mart by retailers, employers and defenseorientated interest groups.

  • In Arbitration, we address the Supreme Court’s grant of certiorari to consider whether a party must demonstrate prejudice in order to make its waiver of the right to arbitrate binding and irrevocable (Citibank).

  • In Intellectual Property, we discuss an important argument before the Supreme Court on the legal standard for the state of mind element of a claim for actively induced infringement (SEB S.A.). Near the end of the oral argument, the Court discussed a number of different potential standards for induced infringement. An opinion is expected later this year.

We will keep you posted on the Court’s decisions in these cases.

Finally, we report on a number of notable developments in other practice areas.

We hope that you find this edition of The Spotlight both informative and useful.


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

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