February 01, 2011

In this edition of The Spotlight, we highlight the various district court decisions addressing the constitutionality of the health care law, all of which consider the important question of what constitutes an “activity” that
substantially impacts interstate commerce. This issue will soon be argued in the courts of appeals and is undoubtedly on its way to the Supreme Court, whose decision may well have a broad impact on Congress’s legislative powers.

We also discuss a number of other interesting and significant developments. The Federal Circuit has issued a decision that will have a profound effect on reasonable royalty determinations in pending and future patent actions (Intellectual Property). The Supreme Court has held that once a full trial on the merits has taken place a party may not appeal an order denying a
motion for summary judgment (Appellate and Supreme Court). The Seventh Circuit has held that an interlocutory appeal may be proper to address the
question of whether a complaint satisfies the pleading standards set forth in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v.
, 129 S. Ct. 1937 (2009). And the Southern District of New York has held that a corporation may continue to assert the attorney-client privilege so long as it had a “reasonable belief” that the person with whom it was
communicating was in fact an attorney, even if that person turns out not to have been an active bar member (Attorney-Client Privilege).

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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