April 01, 2010

In this edition of The Spotlight, we highlight several recent developments that we think you will find both interesting and helpful to your practice.  Notably, in Intellectual Property, we discuss the Federal Circuit’s recent en banc decision resolving the much debated question whether section 112 includes a written description requirement separate from the enablement requirement, including the scope and purpose of that separate requirement (Ariad).  Additionally, in Antitrust, we discuss the first time U.S. prosecutors succeeded in extraditing a foreign national for offenses resulting from an antitrust investigation. In Arbitration, we note a Second Circuit decision holding that parties empowered an arbitrator to amend his award after-the-fact by consenting to the arbitration forum’s rules (T.CO Metals); and an Eighth Circuit decision holding that a non-signatory to an arbitration agreement was entitled to enforce an arbitration clause based on equitable estoppel. We also highlight a number of decisions addressing when privileges have been waived.  For example, we call to your attention that privilege does not extend to communications between a party and its third-party advertising agencies (LG Electronics) and we discuss an opinion holding that the former attorney of an existing but non-functioning entity cannot assert privilege on its behalf (Lopes). In Environmental, we discuss a number of decisions of interest, including a court’s decision holding an owner of leased equipment liable under CERLA (Saporito) and in ERISA, we address a Sixth Circuit’s holding that Ford Motor Company did not interfere with benefits by its classification of rehired workers (Ensley).  Finally, we note the First Circuit’s en banc decision rejecting the SEC’s attempt to expand primary liability for securities (Tambone) and in Internal Investigations, we discuss the U.S. Sentencing Commission’s proposals to the Sentencing Guidelines addressing organizational offenders.

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