Risk Management and Litigation Avoidance Category Archives

US Supreme Court Opinion Impacts Trademark Infringement Claims

This morning SCOTUS ruled that the Lanham Act provisions regarding trademark infringement do not have extraterritorial reach - the alleged infringing “use in commerce” must be domestic. As Justice Jackson’s concurrence highlights, the nature of global commerce means that even this attempted bright line standard likely won’t function as one. What is clear, is that the Lanham Act will ...

This morning SCOTUS ruled that the Lanham Act provisions regarding trademark infringement do not have extraterritorial reach - the alleged infringing “use in commerce” must be domestic. As Justice Jackson’s ...

Protecting Trade Secrets in the Era of Generative Artificial Intelligence – Part II: Novelty

Last month we discussed how the rapid adoption of ChatGPT and its work-related usage may create new risks for businesses regarding the confidentiality requirements to establish trade secret protection. This article highlights another way that generative AI may change the trade secret landscape:  it may redefine what constitutes novelty and how to prove it. Under Washington law, a party ...

Last month we discussed how the rapid adoption of ChatGPT and its work-related usage may create new risks for businesses regarding the confidentiality requirements to establish trade secret protection. This ...

Protecting Trade Secrets in the Era of Generative Artificial Intelligence – Part I: Confidentiality

Generative AI has made headlines in recent months after the large language model ChatGPT launched for free public use. ChatGPT set the record for the fastest growing user base, obtaining 100 million monthly active users in only two months.[1] By March, that number had grown to over 1 billion users.[2] The allure of ChatGPT is that it can quickly ...

Generative AI has made headlines in recent months after the large language model ChatGPT launched for free public use. ChatGPT set the record for the fastest growing user base, obtaining ...

Rule 408: Not as Broad as You May Think

Many lawyers treat Federal Rule of Evidence 408 and its state analogues as a blanket confidentiality provision that precludes reliance upon—or even disclosure of—settlement communications.  The language of the rule itself, however, and cases applying it, make clear that Rule 408 is not so broad: not every communication with a “Rule 408 Settlement Communication” stamp is inadmissible. Federal Rule ...

Many lawyers treat Federal Rule of Evidence 408 and its state analogues as a blanket confidentiality provision that precludes reliance upon—or even disclosure of—settlement communications.  The language of the rule ...

FTC’s Proposed Ban on Non-competes Would Preempt Washington State Law

In prior blog posts we examined Washington law on noncompete agreements: the current statutory scheme that curtails the use of noncompete agreements in certain contexts [here] and [here], and how Washington courts evaluate the reasonableness of a noncompete agreement to determine its enforceability [here]. A recently proposed rule by the Federal Trade Commission would upend this Washington law.[1] Under ...

In prior blog posts we examined Washington law on noncompete agreements: the current statutory scheme that curtails the use of noncompete agreements in certain contexts [here] and [here], and how ...

Division III Warns Potential Defendants: Denying a Clearly Valid Claim Could Mean You Owe Attorney’s Fees if You Get Sued

Since its adoption by the United States Supreme Court in 1796, the “American Rule” has been a bedrock principle of American law.1 The basis for the rule is the idea that it promotes access to the courts: potential litigants may be discouraged from pursuing their claims if losing would mean they had to pay the other side’s attorney’s fees. ...

Since its adoption by the United States Supreme Court in 1796, the “American Rule” has been a bedrock principle of American law.1 The basis for the rule is the idea ...

Update on Baseball’s Antitrust Exemption

An update to our prior post "Baseball Tries An Old Saw: “Let’s not compete on wages….”:  On different grounds, there is a new challenge to Baseball’s antitrust exemption, brought by four of the minor league baseball clubs which lost their MLB affiliation in the recent shakeup of the minor leagues' organization.  See the complaint here.  Antitrust expertise has long ...

An update to our prior post "Baseball Tries An Old Saw: “Let’s not compete on wages….”:  On different grounds, there is a new challenge to Baseball’s antitrust exemption, brought by ...

Baseball Tries An Old Saw: “Let’s not compete on wages….”

Virtually all businesses, and not least the professional sports leagues, are looking to cut costs in the era of coronavirus.  Major League Baseball has decided to cut its 2020 draft of amateur players, usually either high school seniors or college juniors, from 40 rounds to 5.  See https://www.cbssports.com/mlb/news/mlb-agrees-to-reduce-2020-draft-to-five-rounds-with-unlimited-undrafted-signings-for-20k-reports-say/. Eliminating part or all of Baseball’s amateur draft is one thing, ...

Virtually all businesses, and not least the professional sports leagues, are looking to cut costs in the era of coronavirus.  Major League Baseball has decided to cut its 2020 draft ...