The US Court of Appeals for the Second Circuit Thursday overturned class action certification for a lawsuit brought by "light" cigarette smokers against Philip Morris USA Inc., R.J. Reynolds Tobacco Co. and other light cigarette makers. The class action, which included anyone who has ever bought light cigarettes since they hit the market in the 1970s, had alleged that tobacco companies used deceptive advertising tactics to mislead smokers in response to growing health concerns over the risks of smoking cigarettes. Attorneys for the tobacco companies argued that determining why every light cigarette consumer bought the product would be impossible and therefore made class certification impractical.

In September 2006, Judge Jack B. Weinstein of the United States District Court in Brooklyn certified the class of 50 million plaintiffs for the class-action suit. Lawyers estimated that sales of light cigarettes brought tobacco companies between $120 billion and $200 billion in extra sales since 1971.

Who Can Practice Law?

Geoffrey C. Hazard Jr., a professor at Hastings College of Law in San Francisco, has been selected to receive the 2008 Michael Franck Professional Responsibility Award conferred by the American Bar Association Center for Professional Responsibility.

“Geoffrey Hazard has rightly been described as the most distinguished ethicist in the country, in recognition of his many and substantial contributions to the development of standards for lawyer and judicial conduct and to fostering awareness and understanding of those standards throughout the American legal profession and the world.  His judgment and scholarship were instrumental in refining the ABA’s model ethics standards for lawyers into a consistent and dynamic compilation, the Model Rules of Professional Conduct.  His leadership has influenced generations of law students, practicing lawyers and judges, and his clarity of thought has brought consensus in the profession to resolving difficult questions of propriety and professionalism,” said Donald B. Hilliker of Chicago, chair of the center’s Coordinating Council. 

Justice Samuel Alito of the Supreme Court of the United States supported Hazard’s nomination for the award, saying “I cannot think of anyone who, during my professional career, has done more to advance the highest professional standards in this country.”

The award, created in 1994, is named for a former executive director of the State Bar of Michigan and long-time champion of improvements in lawyer regulation in the public interest.  It will be presented to Hazard May 29 during the 34th National Conference on Professional Responsibility in Boston.

Hazard has been on the Hastings faculty since 2005, and also has been a professor of law for the University of Pennsylvania since 1994.  He formerly taught law at Yale University; the University of California, Berkeley; the University of Michigan; the University of Chicago; Stanford University; Harvard University; the University of Arizona; and the Universite d’Aix-Marseille, and he is a former acting and deputy dean of the Yale School of Organization and Management.  He has served on boards and committees for a range of organizations from the Friends of the Library for the Supreme Court of Israel to the Legal Advisory Committee of the New York Stock Exchange.  He is a past director of the American Law Institute and executive director of the American Bar Foundation, and has served on numerous committees and projects of those organizations and of the American Bar Association, as well as other legal professional groups.  He has written leading texts on legal ethics, and many articles for professional publications, and has practiced law in Oregon, California, Connecticut and Pennsylvania

The ABA Center for Professional Responsibility is marking its 30th anniversary as a national leader in developing and interpreting standards and scholarly resources in legal and judicial ethics, professional regulation, professionalism and client protection mechanisms.

With more than 413,000 members, the American Bar Association is the largest voluntary professional membership organization in the world.  As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law.

The US District Court for the Eastern District of Virginia on Tuesday rejected new US Patent and Trademark Office (USPTO) rules that would have retroactively limited the number of claims that can be included in a patent application and the number of times a continuation application can be filed for a given invention. The court ruled that the new rules were "substantive in nature" and therefore beyond the scope of the USPTO's authority to govern the submission procedure of patent application.

The lawsuit challenging the new rules was brought by pharmaceutical company GlaxoSmithKline, which has approximately 100 applications pending at the USPTO. Supporting the company was the American Intellectual Property Law Association (AIPLA), which filed an amicus curiae brief. In October, a judge enjoined the USPTO from implementing the new rules pending a ruling on their validity.

The Federal Circuit Court of Appeals recently reversed a district court’s dismissal of a declaratory judgment action, relying on the Supreme Court’s decision in MedImmune Inc. v. Genentech Inc., 127 S.Ct. 764 (2007). See Micron Technology, Inc. v. MOSAID Technologies, Inc., 2008 WL 540182 (Feb. 29, 2008)

Micron was one of the four largest manufacturers of dynamic random access memory (DRAM) chips. Micron, together with Samsung Electronics Company, Ltd, Hynix Semiconductor, Inc., and Infineon Technologies of North America, controlled seventy-five percent of the worldwide market for these chips.

MOSAID held patents on the circuit technology that was used in the manufacture of DRAM chips. In 2001 and 2002, MOSAID sent a series of four letters to Micron inviting Micron to license MOSAID’s patents.

After sending letters to all four of the manufacturers who declined to enter into licenses with MOSAID, MOSAID began patent infringement litigation against each of the manufacturers. MOSAID first sued Samsung. Infineon then sued MOSAID for declaratory judgment of noninfringement. MOSAID and Samsung settled. MOSAID then sued Hynix, who later settled. MOSAID then settled with Infineon. In each settlement, MOSAID granted the manufacturer a license under its patents. MOSAID made statements in public and in its 2005 annual report that it intended to “aggressively” pursue all other DRAM manufacturers to force them to license MOSAID’s technology, and that it would be “unrelenting” in its litigation strategy. The industry believed that Micron was the next target of MOSAID.       

In July 2005, Micron filed a declaratory judgment in the Northern District of California seeking a declaration of noninfringement of 14 patents owned by MOSAID. The following day, MOSAID sued Micron and two other defendants, in the Eastern District of Texas, for infringing seven patents.  MOSAID later added one more defendant and three more patents to the Texas action.            

MOSAID then moved to dismiss the California action for lack of subject matter jurisdiction. The district court granted MOSAID’s motion on the grounds that Micron had no reasonable apprehension of being sued by MOSAID. The district court found that there was no evidence of threats from MOSAID to Micron for the last four years, no threats from MOSAID to Micron’s customers, and no public statements by MOSAID that it intented to sue Micron.           

Micron appealed and the Federal Circuit reversed.           

The court first held that the district court in California did have subject matter jurisdiction over the case. The district court had applied the wrong test – the “reasonable apprehension” test is not the proper test, according to the Supreme Court in MedImmune. The correct test, which the appellate court repeatedly stated “is more lenient,” is “whether the facts alleged under all the circumstances show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Micron, quoting MedImmune, 127 S.Ct. at 771.            

In applying this test, a district court must look at the evidence of all of the circumstances. In this case, the evidence included the series of letters from MOSAID to Micron, the previous suits from MOSAID against the other three manufacturers, and MOSAID’s public statements of its intent to aggressively pursue litigation against the remaining manufacturers.         

US Attorney General Michael Mukasey said Friday that he was willing to compromise with Congress on legislation amending the Foreign Intelligence Security Act but that the legislature would have to provide a "workable bill". Mukasey said that the bill passed by the US House of Representatives last week, which did not provide retroactive immunity to telecommunications companies that participated in the NSA warrantless surveillance program, did not meet this threshold. Last month, the Senate passed a version of the bill that did provide retroactive immunity to the companies. Mukasey stopped short of urging the House to adopt that version of the bill, however, and instead expressed hope that a compromise could be reached between the House bill and the Bush administration, which supports the immunity provision.

Mukasey's comments come roughly a week after President Bush said again that he would veto any FISA amendment legislation that did not include the immunity provision. The House bill would defer the issue of immunity to the courts to be resolved on a case-by-case basis, but would also allow the cases to be heard in closed-door hearings. Last month, Mukasey and US Director of National Intelligence Mike McConnell said that vital intelligence had been lost while telecommunications companies circumvented wiretapping orders as they waited for word on whether the immunity provision would be included in the new legislation. Mukasey said that the relationship between the private companies and the government had since been repaired and that intelligence gathering activities were now running smoothly.

The US Supreme Court heard oral arguments Tuesday in the consolidated cases of Munaf v. Geren and Geren v. Omar where the Court is considering whether federal courts have jurisdiction over habeas corpus petitions filed by American citizens detained by US military personnel operating under a multinational force. The cases also present the issue of whether a federal court would have jurisdiction over a habeas petition filed by an American citizen if a foreign court convicted the citizen of a crime, but the citizen is still in the physical custody of American authorities. Mohammad Munaf was convicted and sentenced to death for the kidnapping of three Romanian journalists in Baghdad, and the US Court of Appeals for the District of Columbia Circuit ruled in April 2007 that it lacked authority to interfere with the Iraqi court case. Two months earlier, however, the same court ruled that Shawqi Omar, arrested for allegedly harboring insurgents in Iraq, has a right to argue his case in US courts. The appeals court blocked Omar's transfer to Iraqi courts. Earlier this month, Munaf's conviction was overturned by an Iraqi appeals court. Lawyers for the detainees argued that because they are in US custody, they should have access to US courts, but several justices seemed to reject that argument, noting that could lead to any Multi-National Force-Iraq detainee challenging their arrest in US courts. AP has more.

The Court also heard oral arguments in United States v. Ressam, where "millennium bomber" Ahmed Ressam is challenging his conviction under 18 USC § 844(h)(2), which authorizes a mandatory minimum ten year jail term for anyone carrying explosives while committing a felony. In Ressam's case, the US Court of Appeals for the Ninth Circuit dismissed the count as the underlying felony - lying on customs papers - was not related to the explosives charge. Ressam has been sentenced to 22 years in prison  for plotting to blow up Los Angeles International Airport on New Year's Eve 1999. US Attorney General Michael Mukasey argued the case on behalf of the government.