Walsh Pizzi O'Reilly Falanga LLP

Expert legal services specializing in corporate law, pharmaceutical, and criminal defense. Serving clients in New York, New Jersey, Pennsylvania, USA, with a dedicated team for what matters most. Bet the company. Commercial Litigation.
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Jury Awards Walsh Client $125 Million in Software Patent Infringement Case
Jury Awards Walsh Client $125 Million in Software Patent Infringement Case 150 150 walsh.law

A New Jersey federal jury unanimously awarded $125 million to Walsh client EagleView Technologies Inc., (EagleView), a leading provider of aerial imagery and data analytics, finding that a business rival infringed its software patents. The critical verdict demonstrated that Xactware Solutions Inc. (Xactware) used EagleView’s innovations and technology for years without permission and in violation of U.S. patent law in a case dating back to 2015.

After less than two hours of deliberation, the jury found that Xactware had willfully infringed five EagleView patents covering software that uses aerial imagery to determine roof repair estimates. The jury’s finding of willfulness may pave the way for additional damages against Xactware.

In addition, U.S. District Judge Renee Marie Bumb issued a temporary restraining order stopping Xactware and its parent company from making and selling certain products until after October 8, when a hearing will be held on a permanent injunction.

Walsh attorneys Liza M. Walsh, Hector D. Ruiz and Eleonore Ofosu-Antwi, and co-counsel Adam Alper, Brandon H. Brown, Reza Dokhanchy, Michael W. De Vries, Patricia A. Carson, Leslie M. Schmidt, Gianni Cutri, Joel M. Merkin and Kristina N. Hendricks of Kirkland & Ellis LLP, represented EagleView.

The case is EagleView Technologies v. Xactware Solutions Inc., et al., case number 1:15-cv-07025, in the U.S. District Court for the District of New Jersey.

For more information, please contact Liza M. Walsh at (973) 757-1100 or lwalsh@walsh.law

More details on the case may be found on Law 360.

As Reported in Law360

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Court Vacates Walsh Client’s $45 Million Patent Infringement Verdict
Court Vacates Walsh Client’s $45 Million Patent Infringement Verdict 150 150 walsh.law

The Hon. Stanley R. Chesler, U.S.D.J., vacated a $45 million patent verdict against LG Electronics Inc., finding the damages were calculated incorrectly. While the jury found that LG willfully infringed Mondis Technology Ltd.’s patent, Judge Chesler stated that Mondis didn’t base its royalty rate on how much of the infringing product featured the patent, so it needs to be recalculated.

Whether Mondis had waived its right to damages was also questioned, and Judge Chesler called for a briefing to see if another trial on damages is needed. Citing the Federal Circuit’s decision in Promega Corp. v. Life Techs. Corp, Judge Chesler wrote, “a patent owner may waive its right to a damages award when it deliberately abandons valid theories of recovery in a singular pursuit of an ultimately invalid damages theory.”

Walsh attorneys Liza M. Walsh and Selina M. Ellis, and co-counsel Michael J. McKeon, Christian A. Chu, and R. Andrew Schwentker of Fish & Richardson PC, represented LG.

The case is Mondis Technology Ltd. et al. v. LG Electronics Inc. et al., case number 2:15-cv-04431, in the U.S. District Court for the District of New Jersey.

For more information, please contact Selina M. Ellis at (973)757-1026 or sellis@walsh.law.

More details on the case may be found on Law 360.

 

As Reported in Law360

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Liza M. Walsh Named Lawyer of the Year–Litigation
Liza M. Walsh Named Lawyer of the Year–Litigation 150 150 walsh.law

NEWARK, NJ, August 15, 2019 – Walsh Pizzi O’Reilly Falanga LLP announced that partner Liza M. Walsh has been selected as one of the 2020 Lawyers of the Year in the Litigation–Patent area. Only a single lawyer in each practice area and community is honored with this award.

Additionally, Liza Walsh and three of the firm’s attorneys have been selected for inclusion in the 26th Edition of The Best Lawyers in America® for their outstanding work in their practice areas. They are: Stephen V. Falanga for Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law; M. Trevor Lyons for Labor Law – Management / Litigation – Labor and Employment; Tricia B. O’Reilly for Commercial Litigation / Employment Law – Management; and Liza M. Walsh for Commercial Litigation / Litigation – ERISA / Litigation – Patent with a specific focus on Complex Litigation. All four Walsh attorneys have been recognized for multiple years.

Recognition by Best Lawyers® is based entirely on peer review, a consensus opinion of leading lawyers about the professional abilities of their colleagues. The Best Lawyers in America was first published in 1983 and publishes top legal talent in more than 70 countries around the world.

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Walsh Helps Client Amgen Win U.S. Patent Battle on Arthritis Drug
Walsh Helps Client Amgen Win U.S. Patent Battle on Arthritis Drug 150 150 walsh.law

Court sides with Amgen in Dispute over Biosimilars

NEWARK, NJ, August 12, 2019 – Walsh client Amgen, Inc. prevailed in litigation filed in 2016 challenging two patents for Amgen’s arthritis drug Enbrel® (etanercept). On Friday, August 9, 2019, the Court found in favor of Amgen on all counts. Handed down in federal court in Newark, the decision ended a lawsuit in which Amgen argued that Sandoz’s biosimilar infringed on certain of Amgen’s patents. Lawyers from Walsh Pizzi O’Reilly Falanga LLP, including Liza Walsh, Marc Haefner, Christine Gannon, Eleonore Ofuso-Antwi and Colleen Maker worked on the case for Amgen along with teams of lawyers from Amgen and from Sidley Austin.

Novartis subsidiary Sandoz, which admitted infringement of Amgen’s patents, had sought to invalidate Enbrel’s patents. Sandoz had planned to launch its biosimilar drug called Erelzi sometime in 2020.

Walsh attorneys on the Amgen team were involved in all stages of fact and expert discovery.  At trial, Walsh attorneys handled expert witness testimony and argued the evidence disputes between the parties to the Court.

The case is Immunex Corp. et al. v. Sandoz Inc. et al., case number 2:16-cv-01118, in the U.S. District Court for the District of New Jersey. View the Opinion.

LAW.COM reported that the patent infringement verdict was worth $10 billion following an increase in Amgen’s market cap of $10 billion following the news of the verdict.

More details on the case may be found on Law 360.

 

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Clock Ticking for New York Employers to Review Workplace Discrimination and Harassment Guidelines
Clock Ticking for New York Employers to Review Workplace Discrimination and Harassment Guidelines 150 150 walsh.law

New York employers should take heed of New York Senate Bill S6577, which recently passed in the Senate and now awaits a final green light from Governor Andrew Cuomo before going into effect. Among other changes to the current law, the bill lowers the standard of proof for workplace harassment, mandates communication of the employer’s sexual harassment prevention policy in both English and the primary language of the employee, and provides for punitive damages in cases of workplace harassment. With this lower standard for sexual harassment and discrimination in the workplace, New York employers seeking to protect themselves from legal action must take the necessary steps to educate employees on appropriate workplace behavior and implement procedures reflective of the pending legislation. Employers may need to revisit their internal discrimination and sexual harassment policies to mitigate risk of being blindsided by legal action.

Under existing law, harassment must be “severe or pervasive” to satisfy the burden of proof, and the complainant must submit documentation that he or she complained internally before seeking judicial redress. The new bill cripples these requirements, relaxing the burden of proof so that potential victims of sexual harassment may seek legal recourse without submitting a complaint internally. New York employers should further note the changes to nondisclosure agreements and mandatory arbitration. New guidelines greatly restrict an employer’s ability to include nondisclosure or confidentiality clauses in settlement agreements relating to discrimination claims. The bill also strips employers of their ability to enforce mandatory arbitration clauses found in employment contracts.

Not only does the bill modify the standard of proof for harassment claims, but it also guts the Faragher-Ellerth defense—a two-pronged affirmative defense often used by employers attempting to defeat discrimination claims. Previously, employers could assert Faragher-Ellerth if an employment action, such as suspension or termination, had not been taken against the complainant. In efforts to sidestep responsibility, employers had to prove both the exercise of “reasonable care” toward correction of the problem and failure of the complainant to avail himself of corrective opportunities.

Governor Cuomo is expected to sign this bill into law shortly, given his praise for the bill in his op-ed for the New York Daily News. Prudent employers will reexamine and update internal policies relating to workplace discrimination and harassment claims – or risk shutting the stable door after the horse has bolted.

For more information about Walsh’s employment law practice or to seek information on how to implement best practices relating to workplace discrimination and harassment, please contact Peter Pizzi at 973-757-1011 or ppizzi@walsh.law.

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Joseph L. Linares Appointed President of Rutgers Law School Alumni Association
Joseph L. Linares Appointed President of Rutgers Law School Alumni Association 150 150 walsh.law

NEWARK, NJ, July 23, 2019 – At its most recent Annual Board Meeting, the Rutgers Law School Alumni Association appointed a new slate of officers who were confirmed by a majority vote. Walsh attorney Joseph L. Linares was selected as President for a one-year term, beginning July 1, 2019. Also appointed were: Mark Makhail, President Elect; Naomi D. Barrowclough, Vice President; Lisa Brown, Secretary; and Xiaochen Sun, Treasurer.

As President, Linares’ key goals are to increase fundraising efforts that will support scholarships and student initiatives, expand the Association’s reach and grow its active alumni base.

“Rutgers gave me the education to tackle challenges and make a difference. Engaging with alumni and students to give back is one way I can do that,” Linares said. “I’m excited to help the Association increase fundraising efforts to support current and future students. In fact, we’ve already held our first event, an inaugural golf outing. In addition, outreach efforts have begun and we just launched new chapters in New York City and Washington, D.C.”

Linares and the Association board are planning to host one event each month to drive alumni engagement, community involvement and support for student groups. The next events slated are an interview workshop for current students, and Q&A session in late August for incoming students during orientation.

Previously, Linares held the positions of President Elect (2018-19), Secretary (2017-18), and Board Member (2015-17).

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California Supreme Court Addresses Attorney Obligations Regarding Confidential Settlement Agreements, Aided By Walsh Amicus Brief
California Supreme Court Addresses Attorney Obligations Regarding Confidential Settlement Agreements, Aided By Walsh Amicus Brief 150 150 walsh.law

When a lawyer approves a settlement agreement “as to form and content,” is the attorney bound to the agreement’s confidentiality restrictions? That question was before the California Supreme Court in Monster Energy Co. v. Schechter, with the Court on July 11, 2019, reinstating Monster Energy’s suit against the attorney accused of breaching such a provision. Walsh submitted an amicus brief on behalf of the International Association of Defense Counsel (IADC), urging that Monster Energy’s claim go forward against the attorney, who offered comments about the settlement in a litigation blog.

In response to the filing of the suit, the attorney filed a SLAPP motion, arguing that the case qualified as a strategic lawsuit against public participation, namely, his public comments about the earlier personal injury suit he filed against Monster Energy.  The trial court denied the motion as to Monster Energy’s breach of contract claim, but the intermediate appellate court reversed, dismissing the suit.  In last week’s decision, California’s highest court vacated the appellate court’s order, holding that the attorney, who had signed a settlement agreement under the legend “approved as to form and content,” could be found to have breached the settlement’s confidentiality provisions by disclosing information about the settlement to a blog focused on plaintiff-side litigation.  The Court concluded that the attorney’s signature under the legend “approved as to form and content” did not preclude a factual finding that the attorney intended to be bound by the agreement’s confidentiality provisions.

Walsh Partner Peter J. Pizzi and Counsel Katherine M. Romano filed an Amicus Curiae brief in support of Monster Energy Co. on behalf of IADC, an organization of approximately 2,500 corporate and insurance attorneys from around the globe whose practice is concentrated on the defense of civil lawsuits.  The amicus brief argued that California’s longstanding public policy in favor of settlement, and the importance of the enforceability of confidentiality provisions in settlement agreements, weighed in favor of Monster Energy Co.’s position.

The Court agreed, holding that its conclusion “recognizes the role that confidentiality plays in facilitating settlement agreement,” citing “the strong public policy of this state favoring settlement of actions.”  The Court relied upon caselaw and quotations cited in Walsh’s Amicus brief, including language from an intermediate California appellate court decision indicating that “The privacy of a settlement is generally understood and accepted in our legal system, which favors settlement and therefore supports attendant need for confidentiality.”

A copy of Walsh’s amicus brief is available here and the Opinion is available at https://www.courts.ca.gov/opinions/documents/S251392.PDF.

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Richard J. Badolato of Walsh Pizzi O’Reilly Falanga LLP Honored by the New Jersey Department of Banking and Insurance
Richard J. Badolato of Walsh Pizzi O’Reilly Falanga LLP Honored by the New Jersey Department of Banking and Insurance 150 150 walsh.law

NEWARK, NJ, July 8, 2019 – Walsh Pizzi O’Reilly Falanga LLP announced that the New Jersey Department of Banking and Insurance recently honored Walsh counsel Richard J. Badolato in a portrait ceremony held at the department’s offices in Trenton. Prior to joining Walsh, Mr. Badolato served as New Jersey’s Commissioner of Banking and Insurance from August 2015 through January 2018 under former Governor Christopher Christie.

Current New Jersey Department of Banking and Insurance Commissioner Marlene Caride presented the portrait to Mr. Badolato in a quiet and dignified ceremony. His portrait joined two dozen other commissioners in a tradition dating back to the department’s inception.

“I’m proud to have served the public and honored to have my picture memorialized with previous commissioners. It’s a very nice feeling,” said Mr. Badolato. “The wall of portraits keeps the tradition alive and shows continuity from one commissioner to another to regulate the state’s banking and insurance industry.”

Mr. Badolato has more than five decades of civil litigation experience on the trial and appellate levels in both State and Federal Courts. His legal career has been marked by service not only to his clients but also to the legal profession and the executive and judicial branches of New Jersey state government. Mr. Badolato served as President of the New Jersey State Bar Association from 2002-2003. He now focuses his practice on Insurance and Financial Services related matters.

“We’re so pleased that Rich received this honor, there’s no one who worked harder for the state,” said Liza M. Walsh, managing partner. “We feel fortunate that he now shares his expertise with our firm and our clients.”

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Walsh Pizzi O’Reilly Falanga LLP Relocates to New Headquarters in Newark
Walsh Pizzi O’Reilly Falanga LLP Relocates to New Headquarters in Newark 150 150 walsh.law

NEWARK, NJ, June 27, 2019 – Driven by continuous growth, Walsh Pizzi O’Reilly Falanga LLP announced that it has relocated its Newark headquarters, completing the move this week. The new office will provide state-of-the-art space for greater collaboration and was custom-designed especially for the firm’s needs. The new office is located at:

Three Gateway Center
100 Mulberry Street, 15th Floor
Newark, NJ 07102

A Newark resident since its founding, the firm viewed remaining in the city essential in choosing new offices. “We are deeply committed to Newark, and our decision to stay in the city reflects that connection,” said Liza M. Walsh, managing partner. “Our new location has given us increased space to address complex legal issues for clients. And while our address has changed, our devotion to achieving smart, cost-effective results for our clients has not.”

With workspaces for over 40 attorneys, paralegals, legal assistants and support staff, the office is full of light from floor-to-ceiling clear glass offering natural daylight as well as enlivening views of Newark, the New York skyline and the western and northern suburbs. The space includes innovative, user-friendly and secure technology solutions, including in the five glass-walled conference rooms equipped with flatscreens for presentations, and a dedicated mothers’ room.

On the banks of the Passaic river, the Gateway Center is a commercial complex of several office towers and includes some of the tallest buildings in the city. Skyways and pedestrian malls connect all of the office towers in addition to a hotel, and Newark Penn station, and PATH trains, which provides easy access for clients and visitors.

As a women-owned firm and member of the prestigious National Association of Minority and Women Owned Law Firms (NAMWOLF), the firm has experienced a surge of growth as an increasing number of corporations recognize the firm’s commitment to diversity and excellence.

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Court Narrows Shareholder Access to New Jersey Corporate Records
Court Narrows Shareholder Access to New Jersey Corporate Records 150 150 walsh.law

In a recent per curiam decision by the New Jersey Supreme Court in Feuer v. Merck & Co., the Court sheds light on the scope of a shareholder’s right to inspect a corporation’s records under both New Jersey statutory law and common law.  The Court affirmed the Appellate Division’s interpretive decision in its entirety on May 15, 2019.  The decision effectively limits the rights conferred by N.J.S.A. 14A:5-28(4) (books and records; right of inspection) and makes it more difficult for shareholders to gain access to corporate documents.

Plaintiff, R.A. Feuer, a minority shareholder of Defendant, Merck & Co., opposed Merck’s multi-billion-dollar acquisition of a Massachusetts pharmaceutical firm, Cubist Pharmaceuticals, Inc. After deeming the acquisition “ill-advised and reckless” given Cubist’s potential patent litigation issues, Feuer demanded that Merck’s board sue itself and the senior management responsible for the deal. In response, the board appointed a “Working Group” of three of its members to investigate and evaluate Feuer’s demands and recommend whether there should be further action or suit.

Upon receiving news from the Working Group that the board would not meet his demands, Feuer next demanded twelve broad categories of Merck’s books and records, including materials pertinent to the Working Group and its activities and selection, documents regarding the acquisition, and the board’s consideration of Feuer’s demands. Aside from releasing relevant minutes of the board and Working Group, the board refused Feuer’s demands, ultimately leading Feuer to file an action for (1) production of the “documents responsive to his twelve demands pursuant to N.J.S.A. 14A: 5-28 and the common law” and (2) “a declaratory judgment that Merck ‘wrongfully rejected’ his demands in his three letters, and ‘that Merck and its Board, in failing to produce . . . all the documents relating to the Board’s investigation and rejection of Plaintiff’s Demands, have failed to, and cannot, meet their burden of demonstrating that the Board’s rejection of such Demands was made reasonably, in good faith, and with justification.’”

The Court dismissed Feuer’s complaint, finding that his demands exceeded the scope of books and records permitted under N.J.S.A. § 14A: 5-28 and common law. The Court relied on the plain meaning of the statute and legislative intent to determine that Feuer is not entitled to “broad-ranging inspection under the statute just because it would be useful.” In addition, Feuer was not entitled to review documents that he forced the board to create in the first place. The Appellate Division decision, which was adopted wholesale by the Supreme Court, further noted, “[r]eading the statute sensibly, it does not impose such a vaguely defined record-keeping obligation on corporations, not does it grant courts the power to grant an equally vague scope of inspection to shareholders.”

The Court found that Feuer’s claims fared no better under the New Jersey common law.  While the common law recognizes shareholders’ qualified right to examine corporate books and records when the request is made in good faith and for a germane purpose, the Court found no basis for granting Feuer relief. Several states are split over whether inspection statutes abrogate the common law. The Court declined to decide this issue in Feuer. Therefore, this remains an outstanding issue that will likely come to a head in future factually distinct cases.

Under Feuer, a shareholder’s opportunity to broadly inspect a corporation’s books and records is now expressly limited. The Supreme Court’s ruling creates another hoop for shareholders to jump through to gain sufficient information for initiating a derivative suit. The Court did not delve into the limits of what a shareholder can obtain during pre-suit discovery, but it did make clear that the scope of this review is not broad, general, or all-inclusive. The phrase “books and records of account” simply does not encompass any and all records, books, and documents of a corporation.

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