<i>Legislative Update</i> Federal And State Governments Turn Their Attention To Spyware And Adware
July 30, 2004
Legislative proposals to regulate spyware and adware have proliferated in Congress and in state legislatures in recent months. To date, only one state ' Utah ' has enacted legislation (enforcement of which as of mid-July had been temporarily enjoined on Constitutional grounds), but several other states and Congress may well do so before the end of the year. <br>This article describes the various legislative proposals for the regulation of spyware and adware, and their potential impact on e-commerce ' and provides a snapshot of these efforts' status as of the beginning of August.
Online: Web Site Offers 'Quality' Services
July 30, 2004
The American Society for Quality (ASQ), <i>www.asq.org,</i> headquartered in Milwaukee, was formed Feb. 16, 1946. The purpose of the 104,000-member professional association is to create better workplaces and communities worldwide by advancing learning, quality improvement, and knowledge exchange to improve business results. ASQ makes its officers and member experts available to inform and advise Congress, government agencies, state legislatures, and other groups and individuals on quality-related topics. ASQ representatives have provided testimony on issues such as training, health care quality, education, transportation safety, quality management in the federal government, licensing for quality professionals, and more.
Case Notes
July 30, 2004
Highlights of the latest product liability cases from around the country.
Former Government Employees as Opposing Expert Witnesses
July 30, 2004
It is increasingly common in product liability cases for a plaintiff to disclose as an expert a former employee of a government agency such as the Consumer Product Safety Commission ("CPSC") or the Food and Drug Administration ("FDA"). These witnesses frequently advertise themselves as experts in "product/drug safety" and refer to their regulatory background as their primary qualification. Frequently, however, these witnesses' responsibilities as government employees had little, if anything, to do with the subjects about which they are now testifying. Nevertheless, these witnesses are dangerous if allowed to testify to a jury, because they lend the credibility of the U.S. government to the plaintiff's case.
'Claim Splitting' in Class Actions: Should Defense Counsel Care?
July 30, 2004
Imagine that you represent a manufacturer who is being sued in a putative class action alleging that one of your client's products is defective. Although some consumers who used the product were injured as a result of the defect, the class action complaint does not make any claims for personal injury. Instead, the complaint asserts claims for economic damages only (<i>eg</i>, refunds of the purchase price of the product). Conventional wisdom would say that you should be thankful. Economic damages usually pale in comparison to personal injury damages, so if putative class counsel has chosen to forego a potentially larger verdict, so be it. Unconventional wisdom, on the other hand, would recognize that the class plaintiffs are "splitting" their claims, and claim splitting presents a number of unique issues for defense counsel.
Practice Tip: A Synopsis of Trademark Licensor Liability
July 30, 2004
A case in strict products liability is available in all states against the manufacturer of a defective product. A "manufacturer" is often defined as one who designs, produces, sells or otherwise distributes the product. Suppose, however, a company's logo is on a product that has been manufactured by someone else. Is the non-manufacturer responsible to a plaintiff and if so, under what theory? The answer depends upon the state in which you sue. Some jurisdictions hold a non-manufacturer liable as an "apparent manufacturer" if it has merely licensed its trademark. Other states require that the licensor have a "significant role" in the chain of distribution, and some states are hybrid, <i>eg</i>, they permit liability against trademark licensors but require more than just licensing the trademark. The following examples illustrate the way some states analyze this liability.
Constructive Discharges Resulting from Sexual Harassment
July 30, 2004
In one of its most important employment decisions on the subject of sexual harassment since its landmark decisions in <i>Burlington Industries, Inc. v. Ellerth</i> (524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998)) and <i>Faragher v. Boca Raton</i> (524 U.S. 775, 808, 141 L. Ed. 2d 662, 118 S. Ct. 2275 (1998)), the Supreme Court, in <i>Pennsylvania State Police vs. Suders</i> (124 S. Ct. 2342, 159 L. Ed. 2d 204, 2004 U.S. LEXIS 4176 (2004)), addressed the issue of a constructive discharge resulting from sexual harassment.
To (b)(2) or Not to (b)(2)?
July 30, 2004
Is there a person alive who does not know that Wal-Mart Stores Inc. has been sued in a gigantic class action? On June 21, U.S. District Judge Martin J. Jenkins of the Northern District of California certified the largest employment discrimination class action in American history. <i>See Dukes v. Wal-mart Inc.</i>, No. C 01-02252 (N.D. Calif. 2004), 2004 U.S. Lexis 11365.
