Monday, June 19, 2017

Loyola Professors Commenting on SCOTUS News

Loyola Law School, Los Angeles professors are commenting on the news arising out of the U.S. Supreme Court today:


Gill v. Whitford (Wisconsin gerrymandering case)

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (civil procedure/personal jurisdiction)
  • Professor Adam Zimmerman: “In terms of impact, I think this case is kind of the sleeper case of the term,” says the complex litigation expert and Gerald Rosen Fellow. “It's going to impact thousands of cases in state MDLs, class actions and, I think, federal MDL litigation (which comprises nearly 40% of all cases in our federal courts.)” Zimmerman’s immediate reaction to the opinion is available online via @Adam_Zimmerman
  • Professors Allan Ides & Simona Grossi: The civil procedure experts filed an amicus brief in the case (below). 
Matal v. Tam (The Slants case; disparagement clause in trademark approval/First Amendment)
  • Professor Justin Levitt: This case decides that the Federal Trademark Office can't refuse to register a trademark that may ‘disparage’ or ‘bring ... into contemp[t] or disrepute’ individuals or groups,” writes the constitutional law expert. “The case follows a line of recent cases looking very skeptically at government laws or policies that burden speech -- and an even longer line of recent cases looking even more skeptically at government laws or policies that treat some private speech worse than others based on its content or viewpoint. The Court divided 4-4 on the precise legal framework, but all 8 Justices hearing the case (Justice Gorsuch wasn't yet on the Court when this was heard) agreed that the statute prohibiting registration of disparaging marks was out of bounds, and that the question wasn't particularly close. This impacts not only The Slants (which will be able to get their name trademarked), but also some other prominent and very controversial brands, like the Washington Redskins, whose trademark had been canceled as ‘disparaging’ in June 2014.” 
  • Professor Jennifer Rothman: “The decision is no surprise. The 8-0 decision -- that Gorsuch did not participate in -- holds that the bar to registering trademarks that are deemed ‘disparaging’ or offensive is struck down. This means that The Slants can register their mark for their band, even if some view it as disparaging or insulting to Asian people, and it also means that the Washington Redskins marks which were cancelled for the same reason will be reinstated. The decision also likely eliminates the bar on registering marks that are scandalous or immoral."

Tuesday, June 13, 2017

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

The big story in Microsoft v. Baker -- the Supreme Court's latest decision involving class actions -- is the question it did not reach today: Do lead plaintiffs have standing to continue pursuing a class action after their individual claims go away?

By way of background, there were two issues in Microsoft v. Baker. The one most people are familiar with is a highly technical question. Whether the plaintiff's strategy in the case--which was to voluntarily dismiss the case with prejudice in order to appeal the denial of class certification--is an impermissible end-run around Rule 23(f)? Rule 23(f) was created nearly two decades ago to permit appellate courts to review whether or not a district court properly certified a class action. Because the decision to certify a class action -- or not -- was so momentous, before Rule 23(f), a grant often would result in a quick settlement, while a denial would often spell the "death knell" of the case. The class action rules were amended in 1998 to give the appellate courts power to hear class action cases in their discretion, even though the appellate courts usually won't hear a case until after the lower court issues a final judgment. Microsoft involved what the Court felt was an improper workaround that process. Rather than rely on 23(f), plaintiffs could voluntary dismiss their claims, receive a final judgment and then appeal the denial of class certification.

Wednesday, June 7, 2017

New York Once Again Floats Right of Publicity Law

By Professor Jennifer E. Rothman

The New York Assembly introduced yet another right of publicity bill last week, Assembly Bill A08155. Such legislation is introduced almost every year in New York―focused on trying to add a post-mortem right which currently does not exist under New York law. Thus far, these bills have all failed to proceed. This time may be different.

The stars are aligning for passage of some bill―even if it hopefully is not this one. One reason for this is that the media companies, that usually strongly oppose such bills, are more willing to compromise this year if the bill provides them with an explicit exemption to avoid liability, particularly in the context of expressive works and news. This sea-change has been brought by a decision earlier this Spring in which a New York appellate court, in Porco v. Lifetime Entertainment, allowed a right of privacy claim to proceed against a television network for its fictionalized drama about a real-life murder. The plaintiff was convicted of having committed the murder, but objected under New York’s privacy statute to the airing of the 2013 Lifetime movie, "Romeo Killer: The Christopher Porco Story."

The proposed bill does provide exemptions that should make media companies happy―including an exemption that would protect Lifetime from Porco’s lawsuit. But in the process a lot of other changes to New York’s laws on privacy are included, and very few of them are wise.\

Tuesday, June 6, 2017

Intellectual Property – Ethiopia’s Experience (continued)

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on June 1, 2017.

In my last blog post, I focused on Ethiopia’s coffee industry; now let’s talk more broadly about Ethiopian’s intellectual property (IP) laws and how those laws potentially impacts the country’s growth.

Ethiopia is almost unique among African countries for its lack of participation in the multilateral treaties that govern the international IP system. There are two main multilateral conventions for IP: the Paris Convention (for patents and trademarks) and the Berne Convention (for copyright law). Today, those treaties have 195 and 183 members, respectively. Ethiopia is the largest economy not participating in the Paris Convention and perhaps the second largest economy not participating in the Berne Convention (after Iran).