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Greenberg Traurig, LLP

Scott Sheehan of Greenberg Traurig Named 2006-2007 Chairman of the Texas Business Law Foundation
J. Scott Sheehan, shareholder and member of Greenberg Traurig’s national corporate and securities practice group, has been named Chairman of the Texas Business Law Foundation for 2006-2007 and Chris Payne, associate, has been named the 2006-2007 Secretary/Treasurer.

The Texas Business Law Foundation is a non-profit corporation organized in 1988 and supported by businesses, professional firms and individuals throughout the state. The Foundation's objective is to help create a favorable business climate in the state of Texas through the maintenance of a modern system of business laws. The Foundation encourages the drafting of legislation to cure particular problems, monitors state legislative and administrative proposals of interest to Foundation members, and endorses or opposes those proposals.

11-28-2006

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Gable & Gotwals, Attorneys At Law

Oklahoma Super Lawyers Named – 18 from GableGotwals
Law & Politics published its list of 2006 Oklahoma Super Lawyers in the October issue of Oklahoma Magazine. A total of 18 GableGotwals attorneys received the honor. Only 5 percent of attorneys are chosen for this honor in each state.

Three of the chosen, Steven L. Barghols, Oliver S. Howard and James M. Sturdivant, were named in the top 50 lawyers in the state, receiving the highest point total in the 2006 Oklahoma Super Lawyers balloting, research and review process.

11-28-2006

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Sughrue Mion PLLC

U.S. Supreme Court Hears Oral Arguments in KSR v. Teleflex
The United States Supreme Court heard oral argument in KSR International.

The question being reviewed by the court was:

Whether the Federal Circuit has erred in holding that a claimed invention cannot be held “obvious”, and thus unpatentable under 35 U.S.C. § 103(a), in the absence of some proven “‘teaching, suggestion, or motivation’ that would have led a person of ordinary skill in the art to combine the relevant prior art teachings in the manner claimed.”

The Petitioner KSR International Co. (“KSR”) was sued by Respondent Teleflex, Inc. (“Teleflex”) for infringement of claim 4 of Teleflex’s patent (U.S Patent No. 6,237,565; “‘565 patent”). KSR moved for summary judgment of invalidity, on the ground that the ‘565 patent would have been obvious under section 103 (a). The District Court granted KSR’s motion, and dismissed the complaint based on its determination of invalidity. The Court of Appeals for the Federal Circuit (“Federal Circuit”), however, reversed the grant of summary judgment and held that the District Court erred in finding the ‘565 patent obvious under section 103 (a), based on its failure to find articulate any teaching, suggestion or motivation that would have led one ordinarily skilled in the art to combine the known prior art.

Many organizations filed amicus curiae briefs in this case including the U.S. Government which filed a brief in support of the Petitioner, KSR. In addition to the Petitioner and Respondent, the Solicitor General’s office also argued before the Court.

11-28-2006

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Saul Ewing, LLP

Lapidow Says Princeton Has Responsibility to His Clients
Seth J. Lapidow, a Partner in the Litigation Department in the Princeton office, is representing a family who are arguing seven different motions against Princeton University.

The Robertson family filed a lawsuit against the University more than four years ago, and on November 28, they delivered their arguments, accusing Princeton of misusing the money their family donated in 1961. The family said the original intent of the donation was to place graduates of Princeton's Woodrow Wilson School of Public and International Affairs in federal government jobs, specifically those in foreign policy.

Both the Robertson family and the University would like the outstanding issues resolved in the case, and asked that the judge grant summary judgments. The University seeks rulings on four motions, including whether Princeton remains the foundation's "sole beneficiary," while the Robertson family would like the court to rule that the foundation was overcharged.

"Princeton was not the beneficiary of the gift ... it was a gift to the people of the United States," Mr. Lapidow said. "Princeton was just the conduit the Robertsons chose."

"The arguments I'll be making are based on a hundred years of corporate law and hundreds of years of trust law," he said. "But they won't be about Princeton's excuses and explanations for their treatment of the Robertson funds.

11-28-2006

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Meyer, Suozzi, English & Klein P.C.

WEAVING JURISDICTION FROM THE WEB
”As technological progress has increased the flow of commerce between States, the need for jurisdiction over nonresidents has undergone a similar increase.” Little did he know how prophetic his words in Hanson v. Denckla, 357 U.S. 235, 250-51, would be when Chief Justice Earl Warren observed in 1958 that the parameters of personal jurisdiction must adapt and evolve with technological advances.

While Justice Warren was commenting on the advances of communication and transportation in 1950s America, courts continue to grapple with jurisdictional issues relating to the "technological progress" of the e-age in the 21st century.

An instructive body of federal case law has already developed concerning the circumstances under which personal jurisdiction may be derived from an out-of-state defendant's maintenance and operation of a Web site. As shown by the recent decision of Eastern District Judge Arthur D. Spatt in ISI Brands, Inc. v. KCC International, Inc., 2006 WL 2989032 (Oct. 19, 2006), courts are now resolving with relative comfort and ease the thorny issues of personal jurisdiction arising from and in connection with interstate commerce through the Internet.

In ISI, Judge Spatt was asked to determine whether the Eastern District of New York was empowered to exercise jurisdiction over a company located in Tampa, Fla., with no offices, telephones or sales personnel in New York but which allegedly sold products across the country through its Web site.

In federal diversity cases and in federal question cases where the applicable federal statute does not specifically provide for national service of process, the federal court must apply the forum state's procedural rules to determine whether there is personal jurisdiction over an out-of-state defendant. See Bensusan Restaurant Corp. v. King, 126 F.3d 25, 27 (2d Cir. 1997) (diversity); PDK Labs v. Friedlander, 103 F.3d 1105, 1108 (2d Cir. 1997) (federal question). Thus, federal courts in this state look to New York's long-arm statute under CPLR 302, authorizing personal jurisdiction through acts of non-domicilliaries.

Of course, even if jurisdiction is permitted under CPLR 302, the court must also determine whether the exercise of that jurisdiction over an out-of-state defendant satisfies federal constitutional due process requirements (Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477 [1985]), but, as a practical matter, once a court finds jurisdiction exists under CPLR 302, it is virtually unheard of for the court to rule that the exercise of such jurisdiction violates due process.

Internet Activity

A leading decision analyzing the reach of long-arm jurisdiction arising from Internet activity is Citigroup, Inc. v. City Holding Co., 97 F.Supp.2d 549 (S.D.N.Y. 2000). Acknowledging that "[w]ith the advent of the internet, the courts have been confronted with a new set of challenges," the Citigroup court observed that the "guiding principle which has emerged from the case law is that whether the exercise of personal jurisdiction is permissible is "'directly proportionate to the nature and quality of commercial activity that an entity conducts over the internet.'" (Quoting K.C.P.L., Inc. v. Nash, 1998 WL 823657, at *5 (S.D.N.Y. 1998), which cited Zippo Mfg. Co. v. Zippo DOT Com, 952 F.Supp. 1119, 1124-25 (W.D.Pa. 1997).

Surveying the applicable cases, the Citigroup court continued that on one end of the spectrum "are cases where the defendant makes information available on what is essentially a 'passive' web site" - similar to advertising in a national magazine or newspaper - that does not justify jurisdiction. On the other end of the spectrum, are "cases in which the defendant clearly does business over the internet, such as where it knowingly and repeatedly transmits computer files to customers in other states" - which would plainly confer jurisdiction.

The Citigroup court then characterized cases in the "middle ground" - where the defendant maintained an interactive Web site permitting the exchange of information between users in another state and the defendant, which depended on "the level and nature of the exchange," in order to justify jurisdiction.

Against this backdrop, Judge Spatt declined to exercise jurisdiction in ISI over the out-of-state Web site seller. In ISI, the plaintiff was "an intellectual property holding company" that acquired the trademark "FUEL" in connection with vitamins, minerals, dietary and nutritional supplements, food bars and drinks, such as "DIET FUEL," "RIPPED FUEL" and "JOINT FUEL." Plaintiff alleged claims of trademark infringement, violations of the Lanham Act and various statutory and common law claims under New York law against defendant for using the marks "LIVING FUEL" and "LIVING FUEL RX" in connection with the sale of meal replacements and dietary supplements.

Plaintiff alleged that defendant was subject to jurisdiction in New York solely because it engaged in activity over the Internet and through its Web site - even though defendant had no physical presence in New York.

Relying upon the above case law, including Citigroup, Judge Spatt noted that Web sites that are not commercial in nature and do not permit the purchase of products online are insufficient to confer personal jurisdiction, while commercial Web sites that do permit consumers to place orders and communicate e-mail questions can confer personal jurisdiction pursuant to New York's long-arm statute.

However, in surveying the Internet-based jurisdictional decisions, Judge Spatt found that in the commercial Web site cases the courts relied upon activity beyond the mere Web site to exercise personal jurisdiction over the defendant. For example, he noted that in Citigroup, the court determined the defendant's activities were not limited solely to the Internet but that defendant also directly solicited New York clients through the mail and hired New York companies to record mortgages. In other similar cases, Judge Spatt found that defendants had affiliates residing in New York, representatives who appeared in trade shows in New York, sold several products to New York residents or had other significant contacts with and in New York, thereby justifying personal jurisdiction.

Judge Spatt continued that the plaintiff in ISI only alleged that the defendant sold products nationally through its interactive site, but had not alleged that defendant had any specific connections to New York or purposely solicited New York customers in particular. Significantly, Judge Spatt rejected the plaintiff's attempt to show that defendant sold products for delivery into New York by virtue of orders placed by individuals affiliated with plaintiff or its counsel after the action was instituted.

He rejected these contrived purchases for several reasons, including that (i) only prelitigation contacts could be relied upon to confer jurisdiction, (ii) placing orders for purposes of "manufacturing" a contact with the forum state were not sufficient and (iii) the sales procured by the plaintiff's representatives did not have a direct relationship to the claims for trademark infringement and unfair competition because the purchasers were not "confused" by the alleged infringement, a necessary element of the claims.


Judge Spatt chose to rely upon the decision in Mattel, Inc. v. Anderson, 2005 WL 1690528 (S.D.N.Y.), where the court found that plaintiff's investigator's purchase of a product on defendant's Web site for delivery in New York was insufficient to justify personal jurisdiction, instead of Mattel, Inc. v. Adventure Apparel, 2001 WL 286728 (S.D.N.Y.), where the court came to a directly opposite result on identical facts.

Jurisdictional Discovery

Interestingly, Judge Spatt did not grant the plaintiff's request to conduct discovery on the jurisdictional issue, as the court had "considerable procedural leeway" to do. See Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 904 (2d Cir. 1981). It is hard to argue with Judge Spatt's ultimate decision to decline jurisdiction in New York given the fact that plaintiff itself asserted that it "conducts no sales in New York, owns no property in New York, maintains no New York telephone or directory listing, and does not advertise or engage in other promotional activities in New York." (Plaintiff's memorandum of law in opposition to defendant's motion, p. 11.) (Plaintiff was defending against a different prong of defendant's motion seeking to dismiss based upon plaintiff's failure to obtain a license to do business in New York under BCL Section 1312.) In fact, plaintiff admitted that its "only 'presence' in New York is the fact that its general counsel is located in the Southern District of New York."

Given the fact that neither party, therefore, had virtually any contact with New York, not to mention the Eastern District, one can readily understand Judge Spatt's reluctance to exercise "considerable procedural leeway" to allow discovery on the jurisdictional issue. Nevertheless, in cases where a plaintiff indeed is located solely in or otherwise has substantial connections with New York, it would appear to be fair to plaintiff to allow it to establish that defendant had in fact sold products in New York or had other contacts in the state - through expedited, carefully directed discovery seeking such information.

Counsel in such cases would be wise to articulate precisely what discovery would be needed and persuasively urge the court to grant such discovery before resolving the jurisdictional motion.

As noted above, although one court has approved of relying upon sales generated by plaintiff itself for purposes of proving the sale of goods into New York, counsel are on notice that such "manufactured" contacts are not likely to be sufficient to confer personal jurisdiction over an out-of-state defendant.

Kevin Schlosser is a partner and chair of the litigation department at Meyer, Suozzi, English & Klein in Garden City

11-28-2006

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Schottenstein Zox & Dunn Co., LPA

Baker Elected President of Columbus Aids Task Force Board of Trustees
Having served on the Columbus Aids Task (CATF) Force Board of Trustees since 2003, Gregory S. Baker, Partner at Schottenstein Zox & Dunn Co., LPA, has been elected President of the Board for 2007. Baker previously served as Co-Vice-President.

Nationally recognized as one of the top AIDS service organizations in the country, CATF is “a full service, community-based, non-profit AIDS organization providing comprehensive services, educational programs and an HIV testing program.” Baker was first introduced to CATF in 2000 when he volunteered for “Art for Life," CATF’s premier biennial fundraiser.

In addition to assisting the CATF, Baker also serves as Vice-Chair of the Italian village Commission and is a graduate of Leadership Columbus, 2005.

Baker received his undergraduate degree from the University of Wisconsin-Madison and his law degree from The Ohio State University College of Law.

11-28-2006

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Schnader Attorney At Law

John Britton Named Managing Partner of Washington
Schnader Harrison Segal & Lewis LLP has named John B. Britton as the managing partner of the Firm’s Washington, D.C. office, effective December 1, 2006. The current managing partner, Martin Mendelsohn, will be retiring from the Firm effective January 1, 2007.

“As managing partner, Marty – who was always a first-rate attorney – has proven himself to be a sure, effective leader, and we will miss him,” said Chairman Ralph Wellington. “However, I am excited that John has accepted the position and I anticipate that he will bring great energy, enthusiasm, and direction to our Washington office.”

Britton is a member of the Firm's Litigation Services Department with substantial experience in environmental and land use law. He has litigated issues under the Clean Air, Clean Water and National Environmental Policy Acts, as well as other legislation related to environmental and transportation issues in federal and state courts and administrative agencies. Britton also provides advice and litigation services with respect to land use and development and has appeared before numerous boards and committees on these issues.

In addition to Britton’s professional accomplishments, he is very active within Washington, D.C. and the surrounding community. His work includes: serving as a commissioner of the City of Rockville, Maryland Planning Commission; serving as a member of Rockville’s Zoning Ordinance Revision Committee; and serving as a voting member of the Metropolitan Washington Air Quality Committee of the Council of Governments. He has been a member of several other land use organizations including the Washington Smart Growth Alliance and the Maryland Smart Growth Policy Collaborative, the latter of which was tasked to develop smart growth public policy for the Maryland Governor’s Office. He is an active member of the Congress for New Urbanism, currently co-chairing one of the planning committees for the 2007 Congress in Philadelphia, Pa. Britton also works with nonprofit organizations, including serving as general counsel to the Close Up Foundation.

Formerly, Mr. Britton served with the United Nations High Commissioner for Refugees in Bangkok, Thailand, and Khartoum, Sudan, coordinating refugee protection rights activities and relief operations. He graduated with a B.A. from Rider College, Lawrenceville, N.J. in 1975, attended the Russian Language Studies Program at Norwich University, Vermont in 1979, received an M.A. in International and Russian Studies from the George Washington University, School of Public & International Affairs, Washington, D.C. in 1980, and received his J.D., with honors, from the National Law Center, George Washington University in 1989.

Marty Mendelsohn, who has enjoyed a distinguished and successful career in the legal profession, focused his practice primarily on trade and commercial issues between the United States and the emerging economies of post-Soviet Europe. Mendelsohn has represented both U.S. and foreign firms that have established commercial beachheads in eastern and central Europe. During his career, he has served as foreign policy advisor to a United States senator and has been consulted by foreign governments on politics and economics, sharpening his ability to negotiate international contracts and agreements. He also has experience and background as a trial lawyer.

Mendelsohn has written and lectured extensively on international issues, and has been honored and recognized for his contributions by a wide variety of organizations. He has also been recognized by several nations for his dedication to public service and for his work as part of a team that negotiated approximately $7 billion in compensation from various countries to Holocaust survivors and victims of Nazism throughout the world, including: the Czech Republic, which awarded him the Medal of Honor in 2005; the Republic of Austria, which awarded him the Grand Decoration of Honor in 2002; and, the Republic of Poland, which awarded him with the Officer’s Cross of the Order of Merit in 2000.

11-28-2006

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