Avoiding Product Liability Traps in the New Dietary Supplement Regime
June 28, 2004
A year ago, manufacturers and marketers of dietary supplements benefited when the U.S. Food and Drug Administration (FDA) implemented a new regulation allowing such companies to make unproven health claims on their labels. Under the new relaxed FDA requirements regulating the marketing and promotion of dietary supplements, manufacturers have more leeway to tout the healthfulness of products by making "qualified health claims" on dietary supplement labels, even if there is no "significant scientific agreement" over the validity of these claims. Under the former policy, supplement manufacturers that had scientific support for their claims, but lacked conclusive evidence, were prohibited from marketing their potential health benefits, thus losing out on important marketing opportunities. The new, more flexible dietary supplement regime enables companies to market their products more aggressively and increase sales.
Practice Tip: Try Technology in Trying Cases
June 28, 2004
Today, television has become the dominant medium for the dissemination of information and entertainment, and the trial lawyer who ignores this basic reality of American life does so at significant peril to his or her case. The effective trial lawyer will continue to rely on the timeless tactics of credibility, emotional appeals, and logic. Nevertheless, in order to persuade a jury effectively, the trial lawyer must deliver the case themes and facts in a way that is consistent with how jurors process information in our high-technology age.
Supreme Court Disappoints Secured Lenders
June 25, 2004
The U.S. Supreme Court's recent <i>Till</i> decision on the proper cramdown interest rate will disappoint secured lenders. <i>Till v. SCC Credit Corp.</i>, 124 S. Ct. 1951 (2004). As we show below, Till should be limited to its narrow fact pattern, but is still bad news for lenders. They now will be forced to fight an uphill battle to prove that a higher risk premium should be added to the prime rate applicable to their crammed down secured claim. In Till, the plurality accepted a risk adjustment premium in the range of 1% to 3% (Justice Thomas, concurring, could accept no premium at all). Commercial lenders will thus have to overcome Till by showing that they are entitled to a truly "market" interest rate.
Circuit Court Win Sets Up Conflict over Bankruptcy Code
June 25, 2004
A recent circuit court decision regarding the interpretation of section 365 of the Bankruptcy Code has set up a conflict between two circuits. On March 15, 2004, the Court of Appeals for the First Circuit issued an opinion regarding whether bankruptcy debtors are required to cure non-monetary defaults prior to assuming unexpired leases under section 365 of the Bankruptcy Code, 11 U.S.C. ' 365. The First Circuit found -- expressly contrary to a holding of the Ninth Circuit Court of Appeals -- that debtors are not required to cure such defaults, resulting in a split in the circuits over a very widely used section of the code.
What Constitutes a 'Security'?
June 22, 2004
The definition of what constitutes a "security" has broadened and changed dramatically over the years under both case and statutory law. Attorneys concentrating in securities law (whether by virtue of litigation or transactional work), as well as governmental and self-regulatory organizations, ranging from the Securities and Exchange Commission (SEC) to the National Association of Securities Dealers (NASD) to various exchanges, have been dealing with the increasingly complex question of what constitutes a "security." This question is often posed to resolve particular claims in specialized venues, testing the acumen of even the most sophisticated securities practitioners and industry members. This two-part article describes the transfer process and offers sample forms as examples.
NYC Alleges Pharmaceutical Companies Manipulated the System
June 01, 2004
The City of New York filed three lawsuits in May against drug manufacturers it claims overcharged it for pharmaceuticals. The suits, brought in three district courts, claim that GlaxoSmithKline (GSK) and Purdue Pharma L.P. kept prices artificially high on pain reliever OxyContin', antidepressant Paxil', and antibiotic Augmentin' by using false and misleading methods to extend their drugs' patents.
Drug Importation Task Force Completes Its Listening Sessions
June 01, 2004
Over the past few months, the Task Force on Drug Importation has held its so-called "listening sessions" with groups and individuals that would be impacted by drug importation, should it be legalized. At the meetings, U.S. Surgeon General Richard H. Carmona served as the chairman over a panel of representatives from the Department of Health and Human Services, as well as from other departments of the federal government with an interest in drug importation issues (see sidebar on page 5). The task force's members are being asked to offer recommendations to Health and Human Services' Secretary Tommy Thompson by December 2004 concerning how best to address key questions posed by Congress as part of the Medicare Prescription Drug Act, such as how drugs can safely be imported, what the impact of such imports would be on incentives to drug research and development, and how much the policing of imports would cost the government.
Editing Software Reignites Ire Of Film Directors
June 01, 2004
This spring, RCA launched a DVD player that includes a software program by ClearPlay Inc. that is preprogrammed to filter out nudity, sex, violence and harsh language from hundreds of movies ranging from "Lost in Translation" to "The Cat in the Hat." <br>The technology has created a furor in Hollywood, with a group of 16 prominent directors ' including Stephen Spielberg, Martin Scorsese, Robert Redford and Stephen Soderbergh ' teaming up with seven motion picture studios to get it off the market. The directors claim the editing violates their trademarks by mutilating and diluting their movies, while the studios argue it infringes their copyrights by creating derivative works.
Multiple-Currency Operation: Challenges and Advantages
June 01, 2004
With more U.S. law firms serving ' or becoming ' global enterprises, many readers will need to gain new fluency in dealing with foreign currencies and exchange-rate issues. Before you immerse yourself in technical details, here's a preview of some practical issues you may encounter and some business advantages you might seek.
