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Franchise Participants as Proper Patent Opponents: Walker Process Claims
Get PDFFranchise parties may be sued for patent infringement, or they may seek to sue others for an antitrust injury as the result of a fraudulently obtained patent. Indeed, franchisors and franchisees may simultaneously fall under both categories-sued for infringement but aggrieved because the very basis of that suit is illegitimate in their eyes. These franchise parties may turn for relief to a patent-validity challenge authorized in the seminal case Walker Process Equipment, Inc. v. Food Machine & Chemical Corp. Franchise participants-franchisees and franchisors alike-may be the ideal Walker Process claimants. When these types of cases occur, the damages within the franchise system are fairly uniform, as the harm often relates to a core element of franchising: licenses, shared by all parties to a franchise network.
One of the hallmarks of Walker Process claims is how loose the standing requirements are. Both direct purchasers and indirect purchasers of a patented device or process may bring a challenge based on the patent holder\u27s alleged fraud in obtaining the patent and the resulting antitrust injuries. In the franchising context, Ritz Camera & Image, LLC v. SanDisk Corp. and its progeny provide franchisors, franchise associations, and franchisees with procedures to protect themselves and those they represent from patent trolling and sham litigation. The Walker Process claim and its resulting principles and practices may also have benefits beyond patent-law regimes for use in other areas of value to licensors and licensees
Gmo Corn, Mexico, and Coloniality
Get PDFGenetically modified ( GMO ) corn germinates legal controversies in Mexico. Since 2013, Mexican courts have temporarily suspended GMO corn because it threatens biodiversity. In the Colectividad del Maiz lawsuit, courts have prohibited Mexico from issuing commercial GMO permits while the litigation continues. Companies like Monsanto need these permits to sell GMO seeds. Corn is the most essential food item for millions of Mexicans and is central to Mexican culture. Mexicans wait for Colectividad del Maiz\u27s resolution, siding with biodiversity or GMOs. This Article describes scientific GMO controversies and analyzes biosecurity, class-action, and international environmental law. It argues that this corn fight feeds larger moral questions about biotechnology and Mexico\u27s sovereignty. Courts and policy makers respond to these controversies with their sovereign powers. Decolonial theory shows how assumptions about economics, law, and ideology rooted in historical colonial structures- coloniality -shape these responses. This Article illustrates the significance of coloniality to how the government responds to GMOs, at a time when GMO safety is increasingly questioned in Mexico and elsewhere
Objector Blackmail Update: What Have the 2018 Amendments Done?
Get PDFIn 2012, I, along with Brian Wolfman and Alan Morrison, wrote a letter to the Federal Advisory Committee for the Rules of Appellate Procedure asking them to adopt a new rule to prohibit class members who file objections from dismissing their appeals in exchange for side settlements from class counsel...
The new rule does not go as far as our letter recommended: it does not prohibit side payments but, instead, allows side payments if the district court that approved the class settlement also approves the side payment.7 I was skeptical when the new rule was adopted that it would mitigate objector blackmail. But now that we have had over one full year of experience with the new rule, we can take a look to see what the new rule has actually done. In this Essay, I attempt to do just that. In Part I of this Essay, I describe the problem of objector blackmail, why prohibiting side payments to objectors would be the best way to screen blackmail-minded objections from other objections, and why I did not think the new FRCP 23(e)(5)(B) would do so as effectively. In Part II, I examine what district courts have done with their new side payment approval authority over the first sixteen months. I found six orders by district courts on whether to approve side payments: four approvals and two denials. Although this is not much data, qualitative review of the orders does not inspire confidence that district court judges will have the requisite backbone to reject blackmail- minded side payments. On the other hand, the approved side payments may be less lucrative under the new rule. In Part III, I try to assess how these two contrary forces might weigh against each other by studying empirically whether the new rule has discouraged class action objectors from taking appeals. Although my methods are crude, they suggest there has been no slowdown in these appeals in the first year of the new rule
Putting the Constitution in Its Place
Get PDFThe fact that Donald Trump became President in 2016, despite losing the popular vote by a substantial margin, has brought renewed attention to the Electoral College system. In Forging the American Nation, Shlomo Slonim provides an illuminating account of the process that led to this bizarre method of determining the outcome of presidential elections. But Professor Slonim\u27s book also provides insights into the origins of many other structural features of our constitutional system that are of questionable value in a modern democracy, such as elections by state for the Senate, the Senate\u27s exclusive exercise of legislative authority for treaties and appointments, and the constraints on the authority of our central government.
The book covers the drafting and ratification of the Constitution between the years 1787 and 1791, and also moves backward into times preceding the Articles of Confederation era and forward to the Marshall Court\u27s decisions, culminating with McCulloch v. Maryland in 1819. Although the events it describes are among the most fully documented in world history,\u27 Forging the American Nation provides a new and valuable perspective on them. Slonim joins other recent authors who approach the Convention and ratification process with a degree of skepticism, but, in this relatively succinct book, he identifies certain themes with unusual clarity and legal precision. In doing so, he also offers clear lessons for constitutional interpretation and particular support for the Legal Process School\u27s argument that the structural features of the Constitution should not be interpreted strictly, if at all, by the courts. This review summarizes some of the main themes that Professor Slonim describes (Part I) and then discusses the implications about contemporary constitutional interpretation that flow from that account (Part II). It ends with some specific implications about the Electoral College and a pending effort to reform it, the National Popular Vote Initiative
ICO vs. IPO: Empirical Findings, Information Asymmetry, and the Appropriate Regulatory Framework
Get PDFInitial coin offerings (ICOs) are a new form of fundraising whereby blockchain-related ventures raise public capital in exchange for newly issued digital tokens. In recent years, ICOs have been a prominent focus of legal and economic studies, which analyze their characteristics and determinants of their success. In this Article, we systematically review these studies and identify key ICO success factors. We then offer theoretical explanations for our findings, and in certain cases, connect the empirical results with the IPO and crowdfunding literatures. The results of our analysis are important for two reasons. First, there is no single formal data source, and there is evidence of inconsistencies across the different data sources available. Second, our results show in what circumstances ICO investors and initiators behave like IPO investors and initiators, and hence contribute to the literature on tokens as securities. In the second part of this Article, based on our analysis, we show that a high degree of information asymmetry exists in ICOs, identify three sources of informational asymmetries, and discuss the role of signaling theory and rating websites in mitigating these asymmetries. Finally, we discuss the regulatory implications of our findings, and propose specific disclosure requirements tailored to ICOs
To Edit or Not to Edit?--Regulating CRISPR Transnationally
Get PDFAfter Chinese scientist Dr. He Jiankui\u27s announcement that he had successfully edited the human genome using a new technology called CRISPR/Cas-9, Dr. He forced the world to address the ethical dilemmas introduced by gene-editing technologies. Born out of a historical tradition of human improvement, gene-editing technologies like CRISPR/Cas-9 modify human genes down to DNA molecules. CRISPR can prevent and cure genetic diseases that have previously had no cure, but problems arise when CRISPR\u27s use expands to enhancements or to modifications that would change the human genome permanently. Given CRISPR\u27s potential profound impact, this Note analyzes how international bodies like the United Nations and countries like the United States, the United Kingdom, and Japan have attempted to regulate gene-editing technologies such that beneficial, individual modifications can flourish and rash, permanent modifications are avoided. This Note recommends the creation of the International Gene-Editing Ethics Commission, which would promulgate publicly approved ethical standards for gene editing while also providing member countries with access to publication in scientific journals, funding, and an international database
Chancery Court Denies Rescission of Merger Agreement Where Indispensible Company Stockholders Not Named as Parties to Litigation
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