From the Waning Days of 2012, Five Developments You May Have Missed

dec12Before fully moving forward into 2013, The Legal Pulse offers five late December developments our readers may have missed during the holiday season:

1. Administration’s Regulatory Plan Released.  The federal government waited until late December to release its Spring 2012 Unified Agenda of Regulatory and Deregulatory Actions. This is the list of regulatory plans that the Office of Information and Regulatory Affairs at the Office of Management and Budget requires all federal agencies to submit to it by April of each year. As noted by the House Oversight Committee, the Unified Agenda has traditionally been issued between April and July. We’re in the process of reviewing it, but one item from the EPA’s priorities list jumped off the screen: “Expanding the Conversation on Environmentalism and Working for Environmental Justice.” We’ve consistently raised red flags about environmental justice here at The Legal Pulse, and will keep an even closer eye on that going forward.

2. FTC Issues Report on “Child-Directed” Food Advertising. What a difference a year makes. At the end of 2011, we were still talking about the threat posed to free speech and freedom of choice by the Interagency Working Group’s (IWG)  Nutrition Principles to Guide Industry Self-Regulatory Efforts. As that Legal Pulse post explained, Congress all-but terminated that effort by requiring a cost-benefit analysis. Last March, FTC Chairman Leibowitz told a congressional panel that it was “time to move on” from the IWG “self-regulatory” effort.On December 21, the Commission released what it termed a “follow-up” study on food ads directed at children. FTC’s study credited the food industry for expanding its self-regulatory efforts, but remained critical of the amount of money devoted to advertising foods the FTC deemed less-than-nutritious. The study has one major flaw: it is based on data that is three years old. It’s fair to say that a significant amount of improvement in the nutritional value of foods has occurred in those three years.

3. “False Marking” Patent Suit Reform Law Upheld. As reported by one of our blogroll’s sites (Patently-O), the U.S. Court of Appeals for the Federal Circuit on December 13 upheld the constitutionality of a provision in the American Invents Act (AIA) patent reform bill. The provision, which imposed stricter standing and other requirements for false marking plaintiffs, applied to suits pending when the AIA became law. A December 2011 Legal Pulse Guest Commentary argued that the false marking provision would withstand challenges claiming that its retroactive effect violated the Due Process clause. Brooks v. Dunlop was the second Federal Circuit ruling in 2012 upholding the law.

4. Federal Jury Imposes Record Patent Damages. On December 26, a jury in Pittsburgh ruled that a California technology company infringed upon a patent held by Carnegie Mellon University and imposed damages of $1.17 billion. The jury found willful infringement, for which the judge can impose additional damages. If the penalty withstands appeal (which history suggests to be unlikely), it would be the third highest damage award in the history of patent litigation. The award is significant in the context of ongoing patent litigation among leading smartphone and other high-tech businesses and may subtly influence juries in those cases as they go forward.

5. RICO Suit Vs. Asbestos Plaintiffs’ Lawyers Succeeds. The Legal Pulse‘s first ever post in April 2010 discussed a WLF Web Seminar which offered a case study on how defendants could fight back against frivolous litigation with fraud suits of their own. The Legal Intelligencer reported on December 24 that a federal jury in West Virginia found two attorneys and a doctor liable under RICO for ginning up fraudulent asbestos litigation against CSX Transportation. The underlying facts mirror the developments in the case discussed during our April 2010 Web Seminar in terms of the recruitment and coaching of plaintiffs, as well as the use of unreliable mass medical screenings.

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