The Legal Intelligencer Blog

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

The top story in today’s Legal is a Berks County trial judge issuing what is believed to be the first order in Pennsylvania suppressing evidence from a Global Positioning System based on the U.S. Supreme Court’s recent ruling in United States v. Jones. As reporter Zack Needles writes, the high court barred evidence obtained through a mobile tracking device used to monitor a suspect’s vehicle in that case, because authorities failed to adhere to the terms of a search warrant. In the case of Commonwealth v. Burgos, Berks County Common Pleas Court Judge Paul M. Yatron reversed “with extreme reluctance” his prior order denying a defendant’s motion to suppress evidence.

Below the fold on Page 1, reporter Saranac Hale Spencer writes that U.S. Steel’s failure to provide a copy of a letter sent to a special master to the Equal Employment Opportunity Commission does not void the master’s recommendation, a Western District judge has ruled. The EEOC has been engaged in a lengthy dispute with the employer.

In more Regional News on Page 3, reporter Amaris Elliott-Engel writes that the state Supreme Court has rejected a new trial for a defendant on death row because a police interview that was not turned over to the defense before trial did not exculpate him.

Also on Page 3, Dan McCormick writes that noted white-collar litigator Donald J. Goldberg has died at 81.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In an Immigration Law column on Page 5, Suzanne B. Seltzer writes that a federal judge has reminded the U.S. Citizenship and Immigration Services to play by the rules.

In a Family Law column on Page 7, Michael E. Bertin writes that the Superior Court has ruled declaratory judgment in a divorce action is unappealable.

Today’s lead story in PLW is a look at the upcoming state Supreme Court oral arguments to be held in Pittsburgh this week. As reporter Ben Present writes, the case attracting the most attention is the $18.5 million verdict being appealed by Genuardi’s in a case that involves a long list of appellate lawyer heavyweights filing amicus briefs.

Below the fold on Page 1, Ben Present writes that the state Supreme Court has denied the extraordinary jurisdiction petition of an attorney who has accused a Washington County judge of tampering with the transcripts of the underlying murder trial he defended.

On Page 3, Zack Needles writes that the state Superior Court has ruled a sheriff’s sale cannot be set aside for a late bidder.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses privileged information in joint defenses; Matthew T. Mangino’s Criminal Practice column, in which he writes that the Supreme Court has opened the door to ineffective plea-bargaining claims; the Superior Court saying that a jury may decide an injured worker’s employment status; a religious school ruled not exempt from paying unemployment compensation benefits; and David Mandelbaum’s Environmental Law column on the high court and pre-enforcement review under the Clean Water Act.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

 

Supreme Court Invalidates Medical Treatment Claims as Unpatentable Subject Matter

By Douglas J. Bucklin
Special to the Legal

The U.S. Supreme Court’s March 20 decision in Mayo v. Prometheus invalidated patent claims when they invoke a law of nature but do not “confine their reach to particular applications of those laws.” The court discussed the following representative claim.

A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:

“(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and (b) determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,

wherein the level of 6-thioguanine less than about 230 pmol per 8x108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and

wherein the level of 6-thioguanine greater than about 400 pmol per 8x108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.”

The two “wherein” clauses state a newly discovered correlation. Drug levels below 230 pmol per 8x108 red blood cells are insufficient and the amount of drug administered should be increased. On the other hand, drug levels above 400 pmol per 8x108 red blood cells are too high and the amount of drug administered should be decreased. The court stated that steps (a) and (b) were “well-understood, routine, conventional activity already engaged in by the scientific community; and those steps, when viewed as a whole, add nothing significant beyond the sum of their parts taken separately.” Thus, the claim attempted to patent a law of nature itself, without any restriction on how it is applied, and was invalid.

A patent claim will be invalid as directed to unpatentable subject matter if it recites application of a law of nature by well-understood, routine, or conventional activity previously engaged in by those in the field. This rule will hold even if the law of nature is newly discovered, and the remaining steps are concrete, tangible and useful – but previously engaged in by those in the field.

Going forward, claims applying a law of nature should separately recite method steps that are novel and non-obvious in the absence the law of nature. This should be done to frame application of the law of nature as restricted to the particular “inventive concept” embodied in the separately recited method steps.

Douglas J. Bucklin is an intellectual property attorney at Volpe & Koenig and provides clients strategies to secure and protect their intellectual property. He also advises clients on strategies to avoid or defend themselves against third-party intellectual property. His experience ranges in technical areas from biotechnology to genetics, pharmaceuticals, chemicals, food technology and medical devices.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Also inside today’s paper is the Litigation: Medical Malpractice supplement, so be sure to give that a read.

The top story in today’s packed Legal is the Lackawanna County guardian ad litem being sued in federal court, along with the Lackawanna County Common Pleas Court. As reporters Ben Present and Zack Needles write, a Lackawanna County man is alleging the family court’s guardian program deprived litigants of constitutional rights and that the court’s sole guardian, Danielle M. Ross, “thoroughly misunderstood and misapplied her role.”

Also above the fold on Page 1, reporter Saranac Hale Spencer writes that a bill of more than $360,000 that was to be recovered by defendants for e-discovery costs has been slashed by more than 90 percent by 3rd U.S. Circuit Court of Appeals Judge Thomas Vanaskie. The judge said that organizing electronic files cannot be considered part of the copying expense.

Below the fold on Page 1, reporters Gina Passarella and Shannon Green write that the Catholic Archdiocese of Philadelphia has placed its general counsel, Timothy Coyne, on administrative leave in what appears to be a continued effort to bring in new outside and in-house legal counsel. A source indicated that Coyne is not expected to return to the role, which is set to be filled in the interim by a Conrad O’Brien attorney.

Also below the fold on Page 1, reporter Amaris Elliott-Engel writes that lawyers for the former Catholic archdiocese secretary of clergy, Monsignor William J. Lynn, have said that his Sixth Amendment right to effective assistance of counsel would be violated if the archdiocese is able to assert an independent attorney-client privilege.

In more Regional News on Page 3, Weil Gotshal & Manges has opened a four-lawyer office in Princeton, N.J., led by veteran litigator Diane Sullivan.

Also on Page 3, Gina Passarella writes that Lackawanna County businessman Louis DeNaples and members of his family will receive a break on some of the taxes from a $40.9 million settlement to take their land for the construction of a county highway.

As always, our People in the News section is on Page 2, and the top stories from our sibling publications across the country make up the Page 4 National News section.

In a Legal Marketing column on Page 5, Holly Lentz Kleeman writes about the search for meaning in marketing and business development.

In a column about the U.S. Supreme Court on Page 7, Stephen A. Miller and Diana Lin write that the justices are set to revisit affirmative action for universities.

Today’s lead story in PLW is a look at the Lackawanna County guardian ad litem, Danielle M. Ross, and the conflict that has arisen since she took the role in 2008. Zack Needles and Ben Present write that court records show several litigants have petitioned to have Ross removed from their cases.

Below the fold on Page 1, Ben Present writes that a split among the state Supreme Court justices let stand a Commonwealth Court ruling that gives workers’ compensation judges discretion in suspending benefits of workers who fail to attend a required physical examination after claiming workers’ compensation.

On Page 3, Amaris Elliott-Engel writes that a Philadelphia judge has held a lawyer-witness in contempt for making a comment to a juror while advocates in the case were engaged in a sidebar conference.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he discusses state rules governing legal advertising; a commentary on Family Law by Christian V. Badali, in which he wonders whether the 9th Circuit’s decision in Perry v. Brown is a success or a setback for same-sex marriage; the Pennsylvania Attorney General’s office appealing a judge’s ARD grant; and a judge ruling that a police officer needs probable cause for a DUI stop.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink: Inside Today's Legal

Welcome to your Tuesday morning round-up of stories in today’s edition of The Legal Intelligencer, which also includes this week’s edition of Pennsylvania Law Weekly. All of the links below will take you directly to today’s stories, or you can head straight over to The Legal’s homepage. (Some stories may require registration or a paid subscription.)

Today’s top story is the Pennsylvania Supreme Court hearing redistricting arguments on Monday, as the justices heard appeals to the state Legislative Reapportionment Commission’s final decision on new districts for the House and Senate. As reporter Ben Present writes, Justice Joan Orie Melvin, who reportedly received a target letter from an investigating grand jury recently, remained on the bench for the arguments. The most substantial arguments came from an attorney representing a band of citizens led by an Allentown piano teacher, along with the lawyer for Senate Minority Leader Jay Costa, D-Allegheny, the lone objector on the five-member commission.

Also on Page 1 today, reporter Amaris Elliott-Engel writes that a court hearing Monday in the Philadelphia grand jury investigation into alleged sexual abuse by priests was held over whether any evidence of prior “bad acts” can be admitted at trial. The Philadelphia District Attorney’s Office has charged the priest’s supervisor, former personnel director for the Catholic Archdiocese Monsignor William Lynn, with two counts of endangering the welfare of a child for allegedly failing to move two accused sexual offenders to new assignments.

Today’s Regional News continues on Page 3, as reporter Gina Passarella writes that the Commonwealth Court has ruled that workers’ compensation judges have no vested rights in pay increases, finding that Pennsylvania’s WCJs had no recourse to collect on a rescinded raise.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

On Page 5 is today’s Legal Marketing column, in which Stacy West Clark writes about marketing items your firm should have on its priority list, beginning with deciding on a plan.

In a look at the U.S. Supreme Court, Stephen A. Miller writes on Page 7 about the case of United States v. Jones, in which a narcotics defendant challenged the admission of evidence at his trial obtained from a GPS device installed on his car without his knowledge or a warrant.

As it is Tuesday, it’s also your chance to read this week’s Pennsylvania Law Weekly. The lead story for PLW comes from Ben Present, who writes that the Penn State scandal highlights the statute of limitations debate that continues to carry on.

On the bottom of Page 1, Ben Present writes that a Clearfield County judge has granted the motion of a corporate methadone clinic and its doctors to file an interlocutory appeal, stemming from claims by the estate of two third-party women who were killed by one of the clinic’s patients in a car crash.

On Page 3, reporter Zack Needles writes an open records story, as the Commonwealth Court has ruled that e-mails sent between borough council members are public record and therefore subject to public disclosure under the state’s Right-to-Know Law.

There’s much more inside this week’s PLW, including Samuel C. Stretton’s Ethics Forum, in which he tackles whether lawyers can accept work product from law students; Brandon Swartz’s Medical Malpractice column, which takes a look at diagnostic testing technologies; Jeff Jubelirer’s Public Relations commentary; and articles about state police being denied immunity after allegations of beating a prisoner and a Philadelphia judge removing trustees from two trusts worth $27.9 million.

If you have questions or comments about any of today's stories, or our coverage as a whole, we invite you to e-mail any of the reporters directly. We hope you'll enjoy today's Legal.

Fresh Ink - Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Welcome to your daily round-up of stories in today's edition of The Legal Intelligencer. Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Today's top story is by our U.S. Courthouse Correspondent, Shannon P. Duffy, who writes that the 3rd U.S. Circuit Court of Appeals, adopting a nine-factor balancing test for deciding when litigants may keep their names secret, has ruled that pseudonyms should be reserved for those who can show a "reasonable" fear of "severe" harm.

Also leading the front page is a story from reporter Amaris Elliott-Engel: The Philadelphia District Attorney’s Office moved Friday to disqualify law firm Stradley Ronon Stevens & Young from representing both the Catholic Archdiocese of Philadelphia and retired Cardinal Anthony J. Bevilacqua in the latest round of allegations of church sex abuse.

Below the fold, senior reporter Gina Passarella writes that a Philadelphia attorney suspended for five years after her conviction for mail fraud related to a cash payment to disgraced former city treasurer Corey Kemp has been reinstated to the bar with the blessing of all but one state Supreme Court justice.

In our Page 3 Regional News section, reporter Zack Needles has a story about the Philadelphia Parking Authority: As the question of whether PPA has the power to create its own taxicab regulations without public input awaits argument before the state Supreme Court, the Commonwealth Court has ruled that agency-issued citations based on those regulations remain unenforceable in the meantime.  

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country make up the Page 4 National News section.

Our first contributed article on this Monday morning is our "Insight on Diversity" column by Stacy Hawkins of Rutgers School of Law-Camden, who wonders if the legal profession is unconsciously undermining its diversity commitment.

Our second contributed article is our "U.S. Supreme Court" column by John S. Summers and Dylan J. Steinberg of Hangley Aronchick Segal & Pudlin, who take a look at the court's June 23 decision in Sorrell v. IMS Health Inc.

Have questions or comments about any of today's stories, or our coverage as a whole? E-mail me or any of the reporters directly. We hope you'll enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

Pulling the Curtain Back on Appellate Fact-Finding

By Bruce P. Merenstein
Special to the Legal

A few months ago, I posted a couple of articles about appellate courts' reliance on amicus curiae briefs and law review articles in deciding cases. In the second of those articles, I discussed a recent Pennsylvania Superior Court decision (Commonwealth v. Brown) that eschewed the use of amicus briefs when "the information contained in the amicus brief was not provided to the trial court for consideration."

Although I noted that this was an unusual position to take, given that amicus briefs almost always contain information not provided to the trial court (and are often found useful by appellate courts for this very reason), a recent U.S. Supreme Court decision highlights the more general problem alluded to in Brown: the use of secondary authority cited in appellate briefs to engage in what amounts to appellate fact-finding.

In Sykes v. United States, the Supreme Court had to determine whether a felony conviction in Indiana for fleeing from police officers in a vehicle was a "violent felony" for purposes of the federal Armed Career Criminal Act (ACCA). Six justices held that it was, while Justices Antonin Scalia, Ruth Bader Ginsburg and Elena Kagan dissented.

In his opinion for five of the justices in the majority, Justice Anthony M. Kennedy contended that statistics on the dangers of fleeing from police in a vehicle, as well as on injuries arising from other violent felonies listed in the ACCA, "confirm the commonsense conclusion that Indiana's vehicular flight crime is a violent felony." In support of this contention, Kennedy cited statistics from a number of recent studies by the International Association of Chiefs of Police, the Bureau of Justice Statistics, and the U.S. Fire Administration, as well as additional statistics from a concurring opinion by Justice Clarence Thomas.

The concurring opinion, in turn, relied on studies by the National Highway Traffic Safety Administration, the National Center for Statistics & Analysis and the Pennsylvania State Police Bureau of Research & Development, as well as reports to the California Legislature, an FBI Law Enforcement Bulletin, a law review article, a book and 10 newspaper articles.

As far as the majority and concurring opinions reveal, none of these studies, reports or articles were contained in the factual record created in the trial court, though they were presumably cited in the parties' (and any amici's) briefs. Yet, as Scalia complained in his dissent, "Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery." How true.

I have noted in another prior article the disturbing trend of some courts, including appellate courts, to rely on extra-record information from the Internet as if it is infallible and properly subject to judicial notice (a trend thankfully constrained in the 3rd Circuit by that court's 2007 decision in Victaulic Co. v. Tieman). But Scalia's dissenting opinion in Sykes pulls back the curtain on a similar trend in Supreme Court jurisprudence: heavy reliance on studies, statistics and other factual material contained in parties' and amici's briefs, when those factual materials were not presented in the district court, where they can be evaluated, challenged, and either accepted or rejected by the finder of fact (whether judge or jury).

The reliance on such factual information that is not part of the record created in the trial court to decide significant issues, such as whether fleeing police in a vehicle is a violent felony, raises serious concerns about the proper role of trial courts and appellate courts. Yet, as I've argued in prior articles, amicus briefs serve a useful function in elucidating difficult issues before appellate courts and providing a broader factual context for the adjudication of important issues that typically arise in the more narrow setting of disputes between individual parties.

There is no easy answer to this dilemma, but if appellate courts, including the Supreme Court, are to remain faithful to the well-established principle that the record on appeal is limited to the facts properly presented and accepted in the trial court, they must be careful not to cross the line from using secondary authority and amicus briefs for background or context to relying on them to find facts that are material to the issues before the appellate courts.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Fresh Ink - Inside Today's Legal

By Jaime Bochet
Of the Legal Staff

Can't find a paper, but want a sneek peak at the stories inside The Legal this morning? Simply read on! Click the links below to access stories directly, or head to The Legal homepage. (Some stories may require registration or a paid subscription.)

Just as Tuesdays always include our Pennsylvania Law Weekly section, Wednesday is the unofficial "Day of Delaware," when we roll out the fresh ink from our First State to the south. That includes the Delaware Law Weekly, available online at www.delawarelawweekly.com, as well as our newest product, the Delaware Business Court Insider, an online newsletter that definitely warrants a look. 

But more about Delaware in a bit … let’s get to today's Legal.

U.S. Courthouse Correspondent Shannon P. Duffy leads this morning's front page with a pharma decision from the Eastern District: A jury must decide whether pharmaceuticals giant GlaxoSmithKline used a series of illegal tactics to delay the approval of generic versions of Flonase, a popular allergy drug, Judge Anita B. Brody has ruled. 

Below the fold, reporter Amaris Elliott-Engel has the latest on a developing business of law story involving some well-known names.  A Philadelphia judge ruled Tuesday that plaintiffs law firm Kline & Specter is entitled to a preliminary injunction barring a former attorney from practicing law anywhere else but at the firm until September. 

One Page 3, reporter Jennifer Zimmerman tells the success story of a case with local ties heading for the U.S. Supreme Court. The court has granted a petition for writ of certiorari filed by the Civil Rights Appellate Clinic of Penn State's Dickinson School of Law.

As always, our People in the News section is on Page 2, and the top stories from our sister publications across the country are on our Page 4 National News page.

On Page 5, we have our weekly "GC Mid-Atlantic" page, which appears every Wednesday. Today's column by Shannon Green is a summary of the findings from the GC Compensation survey conducted by our sister publication, Corporate Counsel magazine. If last year’s survey showed the after-effects -- the hangover, if you will -- of the deepest trough of the recession, this year's results show that chief legal officers made steady gains and recovered some momentum.

Our Page 7 contributed piece is our Securities Law column by Brian M. Rostocki of Reed Smith, who writes: On July 7, the Delaware Court of Chancery issued an opinion in Sagarra Inversiones v. Cementos Portland Valderrivas, in which the court denied a plaintiff's motion for a status quo order that would prohibit the defendant from transferring funds under a stock purchase agreement during the pendency of the litigation. 

As we move south in our weekly coverage to Delaware, we'll stop first at the Delaware Law Weekly, where reporter Jeff Mordock has the top stories. Please note: all of our Delaware coverage is for paid subscribers, but you can register for a free 30-day trial by clicking here.

First up is a story on the Delaware Office of the Public Defender, which is poised to assume control of the judiciary's conflict attorneys later this year. While the office touts the change as a way to reduce the unit's bureaucracy and eliminate possible conflicts of interest, lawyers have expressed some concerns about the move.

Next up, the Delaware Supreme Court, reversing a previous Superior Court decision, has ordered a new trial for a man accused of robbing a bank customer. In issuing the opinion, the high court ruled that the trial judge overstepped his authority by prohibiting a witness from testifying on the accused's behalf.

Finally, we'd like you to meet (if you haven't already) the Delaware Business Court Insider. As the name suggests, this is a national product covering the latest news, analysis and cases from the Delaware Chancery Court, Bankruptcy Court and Supreme Court. The accompanying website is www.delbizcourt.com, where you can go to subscribe to this newsletter weekly. You can also follow us on Twitter at: http://twitter.com/delbizcourt.

Top stories there include:
- A group of institutional investors has amended a derivative suit it filed in the Court of Chancery in March against Rupert Murdoch and other directors of the media conglomerate News Corp.
- The Chancery Court began accepting applications last week for the master in chancery position that was vacated upon Sam Glasscock's promotion to vice chancellor; and
- Vice Chancellor Donald E. Parsons Jr. has cleared the way for a possible trial in a two-year dispute between two pipe manufacturers by ruling that there was a valid and enforceable contract between the companies, but that the form and content of the contract remain to be determined.

We hope you'll take a look!

Have questions or comments about today's issue? E-mail me or any of the reporters directly. Have a great day, andl enjoy today's Legal!

Jaime Bochet is the Magazines & Supplements Editor for The Legal. Follow her on Twitter at @JaimeBochetTLI or e-mail [email protected].

A Sliver of a Silver Lining for Microsoft

By Joshua Wolson
Special to the Legal

The U.S. Supreme Court's decision last week in Microsoft v. i4i appears, at least at first blush, to be a complete loss for Microsoft. Microsoft argued that a defendant in a patent infringement action should have to prove patent invalidity by a preponderance of the evidence. The Supreme Court disagreed and held that federal law requires proof by clear and convincing evidence. Microsoft argued that even if the general rule requires clear and convincing evidence, the rule should be modified if the evidence rendering the patent invalid was not before the Patent and Trademark Office when the patent was granted initially. The Supreme Court disagreed and held that the clear and convincing standard still applies.  And the court affirmed a jury verdict against Microsoft.

So, yes, Microsoft lost, and the court's 8-0 vote wasn't even close. 

At first glance, the decision seems to indicate the court's hostility to invalidity challenges (or at least reaffirms just how difficult it is to succeed on an invalidity challenge). But there is in the court's opinion a small silver lining for Microsoft and other infringement defendants that might just keep the ruling from being a total disaster.

The court, in rejecting Microsoft's argument that a lower standard applies in cases where the evidence of invalidity presented in court was never before the PTO, said, "Simply put, if the PTO did not have all material facts before it, its considered judgment may lose significant force."

Translation (or at least the translation that Microsoft and other defendants should cling to): The standard of proof is the same -- clear and convincing evidence -- but the import of finding evidence that was not before the PTO is arguably more important than it was before. In fact, in some cases, such evidence, on its own, might be the clear and convincing evidence needed to prove a patent invalid. 

It remains to be seen, of course, what effect the court's decision will have on future invalidity arguments. Microsoft itself was able to show at the trial against i4i that some information was not before the patent examiner in the case. That, however, did not sway any of the courts that heard the case, including the Supreme Court. Even faced with such evidence, each court held that Microsoft had not proven that the information in question would or should have changed the examiner's decision.

Nonetheless, future infringement defendants would be wise to be mindful of the court's ruling and scour the universe for evidence outside of the PTO's files for evidence that an examiner was unaware of something relevant. Thus, the court's opinion has given Microsoft and other defendants a roadmap to an invalidity challenge, and with that, a small glimmer of hope.

At least, that's what Microsoft will have to tell itself to make the ruling sting a little less.

Joshua D. Wolson is a partner in the litigation department at Dilworth Paxson. He can be reached at 215-575-7295 or [email protected].

Judge Rendell Appointed to MDL Panel

By Shannon P. Duffy
U.S. Courthouse Correspondent

Third U.S. Circuit Court of Appeals Judge Marjorie O. Rendell (pictured, left) has been appointed by U.S. Supreme Court Chief Justice John G. Roberts Jr. to serve on the Judicial Panel on Multidistrict Litigation, the seven-judge body that decides when a group of cases filed in multiple federal districts should be consolidated in front of one judge.

Since its inception in 1968, the MDL panel has nearly always had at least one Philadelphia judge -- either from the U.S. District Court for the Eastern District of Pennsylvania or the 3rd Circuit.

And Philadelphia judges have routinely been selected to handle some of the biggest cases, including the massive asbestos MDL with more than 175,000 claims, the litigation over the diet drug cocktail known as Fen-Phen, and thousands of products liability cases filed against the makers of orthopedic bone screws.

Currently, 14 of the Eastern District's judges are presiding over 16 MDL cases, including litigation over the marketing of the diabetes drug Avandia and antitrust suits focusing on the markets for plastics additives and blood reagents.

Less than two weeks ago, the MDL panel selected U.S. District Judge J. Curtis Joyner to handle a batch of cases filed against Footlocker Inc. under the Fair Labor Standards Act that allege the company's bonus policy encourages managers to force employees to work off-the-clock and to delete time recorded. (Joyner will take over as the Eastern District’s chief judge on June 7, inheriting the post from Judge Harvey Bartle III, who ended his term as chief when he turned 70 on Monday.)

In its 43-year history, the MDL panel has considered motions for centralization in over 2,000 dockets involving more than 300,000 cases that included millions of claims. Among the cases the court considers for consolidation are airplane crashes and train wrecks; hotel fires; mass torts; drug and other products liability cases; patent validity and infringement; antitrust price fixing; securities fraud; and employment practices.

Rendell follows in the footsteps of a long line of Philadelphia federal judges to serve on the MDL panel.
Former Eastern District Chief Judge Joseph S. Lord III was among the first seven judges selected in 1968, and was succeeded on the panel by Judges Charles R. Weiner, Louis H. Pollak and Louis C. Bechtle.

The panel was without a Philadelphia judge for a few years after Bechtle ended his term in 2001 until 3rd Circuit Judge Anthony J. Scirica was appointed in 2006 and served until June 2008.

Rendell will travel to San Francisco in July for the MDL's quarterly hearing and in September will serve as host when the panel meets in Philadelphia.

Shannon P. Duffy is the U.S. Courthouse Correspondent for The Legal. He can be contacted at 215-880-2700 or [email protected].

Secondary Authority Revisited

By Bruce P. Merenstein
Special to the Legal

In 2002, then-3rd U.S. Circuit Court of Appeals Judge (and now U.S. Supreme Court Justice) Samuel Alito authored a single-judge opinion granting a motion for leave to file an amicus curiae brief. In explaining why he was granting the motion in Neonatology Associates, P.A. v. Commissioner, Alito noted that "some amicus briefs collect background or factual references that merit judicial notice," and some amici "are entities with particular expertise not possessed by any party to the case."

These observations comport with the historical basis of the amicus brief, which has its origins in the "Brandeis brief," a brief focusing on non-legal data and extra-record statistical information (though the original Brandeis brief, in the 1908 case of Muller v. Oregon, was actually a brief for the state of Oregon, a party to the action, and not an amicus).

Yet, in a recent Pennsylvania Superior Court decision, the court declined to rely on an amicus brief specifically because "the information contained in the amicus brief was not provided to the trial court for consideration."

In the case, Commonwealth v. Brown, the defendant challenged a trial court order refusing to transfer his case to juvenile court. In support of his arguments on appeal, a number of organizations and individuals filed an amicus brief in support of the defendant, "primarily devoted to discussing the neurological and psychological development of preadolescents and the juvenile justice system as a rehabilitative social institution." The court indicated that it found the brief "informative and enlightening." But, as noted, it refused to consider it because the information contained in the brief had not been presented to the trial court.

While ordinarily it is well established that an appellate court will not consider factual information not presented to the trial court and contained in the official trial court record, a primary purpose of an amicus brief, as Alito observed in Neonatology Associates, is to offer particular expertise and present factual information to the appellate court that it otherwise might not have before it.

Thus, the Superior Court’s reluctance to consider the "informative and enlightening" amicus brief of five respected organizations and three professors in Brown is somewhat odd. Making the court's decision even odder is its citation a few pages later to a law review article as support for its reasoning in reversing the trial court. Stranger yet, the author of the law review article was one of the professors whose amicus brief the court refused to consider.

Bruce P. Merenstein is a partner with Schnader Harrison Segal & Lewis, with a practice focused primarily on appellate litigation in state and federal courts. He can be reached by e-mailing [email protected].

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.