Nov 2, 2020

Yellowstone Proceedings and the Pandemic: Do COVID-19 Mandates Frustrate Performance?

For Lease

The legal press is rife with articles and speculation about the defenses of impossibility and/or frustration of performance to lease defaults triggered by state and local mandates prohibiting or limiting access to businesses. A decision released last week addressed that issue. Rame, LLC leased space at 200 Park Avenue from Metropolitan Realty Mgt., Inc. In September 2020, Metropolitan sent Rame a notice of default, alleging that it owed unpaid rent from December 1, 2017 through September 1, 2020 in the amount of $1,863,821.70, and set a deadline of on or before September 14, 2020 to cure the default. Rame sought… Read more

Mar 4, 2020

The Strictly Limited Scope of Inter Partes Review

Patent Law

Last month, the United States Court of Appeals for the Federal Circuit (CAFC) issued an opinion in the case of Samsung Electronics America, Inc. v Prisua Engineering Corp., case number 2019-1169, again holding that the authority of the Patent Trial and Appeal Board (Board) to institute an inter partes review (IPR) is statutorily limited only to grounds of anticipation and obviousness, under 35 U.S.C. §§ 102 and 103; though further clarifying that the Board also may not expand the scope of a properly instituted IPR to address other patentability requirements beyond the statutorily authorized grounds. The Leahy-Smith America Invents Act… Read more

Sep 26, 2019

Can Unasserted Claims of Ameranth Patent be Invalidated Under Section 101?


The Federal Circuit recently heard oral argument in Ameranth, Inc. v. Domino’s Pizza, LLC, Nos. 2019-1141, -1144, in which the Court grappled with the issue of determining whether unasserted claims of a patent can be invalidated under Section 101. In 2011, Ameranth filed patent infringement actions against several defendants, including Domino’s, alleging infringement of two patents.  In an amended complaint filed in 2013, Ameranth accused Domino’s of infringing thirteen claims – specifically, claims 1, 3, 6-9, 11-13, and 15-18 – of a third patent, U.S. Patent No. 8,146,077 (“the ’077 Patent”), which was directed to a system for generating and… Read more

May 2, 2019

Failure to Provide Proper Itemization Under Section 38 of the New York Lien Law Fatal to Maintaining a Mechanic’s Lien

New York Lien Law

The New York Lien Law provides broad rights to contractors, subcontractors and materialmen who improve real property.  However, the right to file a mechanic’s lien is not without obligation on the lienor who must, within five days of receipt of a demand under Section 38 of the Lien Law, provide a verified, itemized statement detailing the value of the labor and materials that comprise its claimed lien amount.  A property owner faced with a lienor who refuses or fails to adequately itemize its mechanic’s lien may bring a petition before the court to seek a proper itemization.  If the lienor… Read more

Apr 4, 2019

Avoid Truthful But Misleading Advertising

Street Advertising - Misleading Advertising

Avoid truthful but misleading advertising. Be careful what you say, especially about your competitors. As expected, competitors are sensitive to any negative allegations made about their products or services, since it may likely have an effect on the business’s sales and reputation. Some competitors may even file a lawsuit to enjoin the use of such statements, even if the statements are technically true. On March 21, 2019, MillerCoors, LLC (“MillerCoors”), which sells Miller Lite and Coors Light, filed a complaint against Anheuser-Busch Companies, LLC (“AB”), which sells Bud Light, after the Bud Light commercials shown during Super Bowl LIII and… Read more

Jan 9, 2019

LLCs, Partnerships and the Tax Time Machine

LLCs and partnerships and taxes

Many LLCs and partnerships amended their governing documents in 2018 because of the various new tax rules that came into effect last year. For example, many pass-throughs converted so-called “guaranteed payment” arrangements. Under new IRC Section 199A, certain types of income qualify for a lower income tax rate – depending on the facts, the federal tax on such income can be reduced by as much as 20%. However, this tax benefit does not apply to income received under guaranteed payment clauses.  By eliminating these arrangements, recipients may be able to qualify for the new tax benefit. What about partnerships or… Read more

Sep 27, 2017

Please Call Back: When is a Voice Mail from a Debt Collector Harassing?

man dialing phone

An individual received a voice mail message from a debt collection company. The message stated the name of the company and that the call was from a debt collector, and asked that individual to call back at a particular number. She filed a lawsuit alleging that the voice mail was a harassing communication that violated the Fair Debt Collection Practices Act (“FDCPA”). In Hart v. Credit Control, LLC, Case No. 16-17126 (decided September 22, 2017), the United States Court of Appeals for the Eleventh Circuit addressed two issues about the application of the FDCPA to that voice mail message. First,… Read more

May 25, 2017

Supreme Court Clarifies the Meaning of the Patent Venue Statute

Court Order

On May 22, 2017 the U.S. Supreme Court issued its unanimous decision in TC Heartland, LLC v. Kraft Foods Group Brands, LLC. The Court reaffirmed its 1957 decision in Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 226 (1957) and held that under the patent venue statute, 28 U.S.C. §1400(b), a domestic corporation “resides” only in its State of incorporation. In so ruling, the Court rejected the broader interpretation of the patent venue statute that the Federal Circuit has been applying for more than 25 years. 28 U.S.C. §1400(b) provides: “Any civil action for patent infringement may be… Read more

Jun 26, 2013

Legislation re-establishes Georgia Contractor’s Right to Its General Conditions Costs

Authored by: Darren Rowles A controversial Georgia Court of Appeals decision limiting the scope of Georgia mechanics’ liens to the value of materials and labor was recently overturned by an amendment to the lien law that will take effect on July 1, 2013.  To read the full text of the amendment adding O.C.G.A. § 44-14-361(c) & (d) to Georgia’s lien code, click here (last visited 4/29/2019). On July 11, 2012, in 182 Tenth, LLC v. Manhattan Construction Co., 316 Ga. App. 776 (2012), the Georgia Court of Appeals held that “general conditions costs” were not lienable.  The decision came as a shock… Read more