Foley Hoag LLP

SUMMARY

Foley Hoag's Product Liability Update is a quarterly update concerning developments in product liability and related law of interest to product manufacturers and sellers. If you find this update useful, please encourage your colleagues and contacts to also register with us on our Web site. As always, you can access all of our publications at www.foleyhoag.com. For questions or inquiries about the Product Liability & Complex Tort Practice Group, contact David Geiger at 617 832 1124.

Included in this Issue:

• First Circuit Upholds Design Defect Verdict Involving Table Saw, Holding Plaintiff Adequately Proved Availability of Feasible Alternative Design Despite Weight and Price Differences From Existing Saw, and Hence Verdict Also Did Not Impermissibly Ban Entire Category of Product
• Massachusetts Superior Court Finds Personal Jurisdiction Over Foreign Ski Manufacturer Where Plaintiff Purchased Allegedly Defective Skis in Massachusetts from Store Located Through Search Function on Manufacturer’s Website
• Massachusetts Federal Court Holds Trademark Licensor that Substantially Participated in Design of Excavating Machine Liable as “Apparent Manufacturer” Even Though Licensor Did Not Participate in Machine’s Sale
• Massachusetts Federal Court Holds Plaintiffs in Class Actions Arising Out of Lead in Fruit Products Lacked Injury in Fact, and Hence Standing, Where Products Had Harmed No One and Complied with Federal Standards; Threat of Future Physical Injury Too Speculative, and Plaintiffs Did Not Allege Diminished Value That Could Constitute Economic Injury
• Massachusetts Federal Court Finds Testimony of Frequent Plaintiff’s Expert on Design of Stove Burner Knob Admissible Because Expert Was Qualified as Licensed Mechanical Engineer, and Methodology of Relying on Personal Inspection, Fire Investigator Findings and Prior Incident Reports Was Reliable; Potential Bias Was Matter for Cross-Examination
• Massachusetts Federal Court Holds Expert Testimony Supporting Causal Link Between Infant Formula and Plaintiff’s Injuries Required to Prevail on Claims; Court Stays Discovery and Dismisses Without Prejudice for Failure to Produce Expert Report or Affidavit

SUMMARY

Included in this Issue:

• Activity Level of New England Series A Transactions
• Activity Level of New England Series B and Later Round Transactions
• Size of New England Q3 2011 Series A Transactions by Industry
• Size of New England Q3 2011 Series B and Later Round Transactions by Industry
• The Numbers: by Dave Broadwin
• Selected New England Series A Round Transactions:
  • Third Quarter 2011
• Selected New England Series B and Later Round Transactions:
  • Third Quarter 2011
• Terms of Selected New England Series A Round Transactions 2010-2011
• Terms of Selected New England Series B and Later Round Transactions 2010-2011
• The National Activity Level Summary
  • National Series A Deals by Industry
  • National Series B and Later Round Deals by Industry

SUMMARY

On January 3, 2012, the National Labor Relations Board (NLRB) held in D.R. Horton that a mandatory arbitration agreement between an employer and its employees violated the National Labor Relations Act (NLRA), because it required employees to waive their rights to participate in class or collective actions. Specifically, the agreement stated that an arbitrator “may hear only Employee’s individual claims and does not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding.”  [more...]

SUMMARY

Effective tomorrow, January 10, 2012, applicants filing international patent applications under the Patent Cooperation Treaty (PCT) in the U.S. Patent and Trademark Office (USPTO) will be able to designate the Russian Federal Service for Intellectual Property (Rospatent) as the International Search Authority (ISA) and pay a Search Fee of only $415.  [more...]

SUMMARY

Effective January 1, 2012, employers with 50 or more employees in Connecticut are required to pay sick leave to qualified “service workers.” Connecticut becomes the first state in the country to mandate paid sick leave. [more...]

SUMMARY

In 2010, Congress enacted legislation which could provide investors who acquire qualified small business stock (“QSBS”) before the end of 2011 with a significant tax benefit. The law permits an exclusion of 100% of the gains realized on the sale of QSBS if the QSBS was acquired by the investor after September 27, 2010 and on or before December 31, 2011 and held for more than five years. Under the temporary total exclusion, excluded gains also are exempt from the alternative minimum tax. As a result, under this exclusion, the effective federal income tax rate on qualifying capital gains generally will be zero.  [more...]

SUMMARY

Last week, Governor Deval Patrick signed into law “An Act Relative to Gender Identity,” also known as the Massachusetts Transgender Equal Rights Bill. This law, which will go into effect in July 2012, extends the state’s equal rights provisions to transgendered individuals by prohibiting discrimination on the basis of gender identity in employment, housing, credit and education. The law amends the existing state anti-discrimination law, Chapter 151B, to include “gender identity” as a protected category. [more...]

SUMMARY

In this Issue: 

• DOJ’s Recent Trend of Prosecuting Individuals for FCPA Violations Continues with Longer Prison Sentences and Increased Fines

SUMMARY

This guide is intended to provide foreign business-people with an introduction to the basic kinds of laws and regulations that affect the conduct of business in the United States, and particularly in The Commonwealth of Massachusetts. The level of detail is varied, reflecting the nature of the legal areas discussed. For example, environmental law and taxation are subjects of detailed and technical regulation, while labor relations are governed as much by custom and practice as
by direct regulation.

The discussion under each heading is intended to provide only general guidance and is not an exhaustive description of all provisions of federal, state and local law with which a non-U.S. business operating in Massachusetts might be required to comply.

 

SUMMARY

On September 16, 2011, President Obama signed into law the Leahy-Smith America Invents Act (the "AIA"). The law makes the most sweeping reform of the United States patent system in at least 60 years. The changes under the AIA will be phased in over the next eighteen months. While a number of significant changes will not take effect until late 2012 and early 2013, patent applicants can optimize their positions under the new law by taking certain steps now:  [more...]

SUMMARY

On August 25, 2011, the National Labor Relations Board implemented a rule which requires virtually all private employers in the United States to post notices about workers’ rights under the National Labor Relations Act. This new rule was scheduled to take effect on November 14, 2011, but the NLRB announced yesterday that it will delay imposition of the rule until January 31, 2012.

SUMMARY

Effective September 30, 2011, the new Treasury International Capital (TIC) Form SLT is required to be filed by certain custodians, investment managers and investors. The first filing deadline will be October 24, 2011 for any reporting entity, including an investment adviser that has $1 billion or more of reportable securities as of the last business day of the reporting month. You should note that only aggregate data derived from Form SLT will be published and only in a manner that will not reveal individual responses.

SUMMARY

Foley Hoag LLP publishes this quarterly Update concerning developments in Product Liability and related law of interest to product manufacturers and sellers.

Included in this Issue:

• First Circuit Holds Trailer Manufacturer Not Liable for Negligence or Breach of Implied Warranty of Merchantability Where Trailer Was Built to Plaintiff’s Employer’s Exact Specifications and Design Was Not Obviously Unsafe
• Massachusetts Superior Court Holds Expert Testimony Regarding Technical Feasibility of Extracting Nicotine to Below Addiction Thresholds and Adding Flavors to Resulting Product Admissible Because Supported by Scientific Research and Data, But Testimony Concerning Consumer Reaction to Product Inadmissible Due to Lack of Such Data
• Massachusetts District Court Appellate Division Holds Statute of Limitations Bars Claim for Breach of Implied Warranty of Merchantability for Roofing Shingles Delivered Twenty Years Earlier Because Any Such Claim Accrued on Tender of Delivery, But Express Warranty Claim Survives Because of Fact Dispute Regarding Any Time Limitations Imposed by Warranty

For more information about the Product Liability and Complex Tort Practice Group, please contact Dave Geiger.

SUMMARY

On September 8, 2011, Representative Bachus (R-Ala.), Chairman of the House Financial Services Committee, introduced a discussion draft of the Investment Adviser Oversight Act of 2011 which proposes allowing a self-regulatory organization (“SRO”) to oversee investment advisers. If adopted, the legislation would amend the existing Investment Advisers Act of 1940 to provide for a national investment adviser association. If established, all Securities and Exchange Commission (the “SEC”) and state registered investment advisers would be required to register with the association. The draft legislation hasn’t yet been presented to the House Financial Services Committee.

SUMMARY

A decision by the Massachusetts Supreme Judicial Court (“SJC”) on September 22, 2011, lays to rest the Secretary of the Commonwealth’s finding that a hedge fund manager, Bulldog Investors General Partnership (“Bulldog”), and its principals, violated the Massachusetts Securities Act through its operation of an interactive website that provided investment information to all visitors. In this decision, the SJC rejected the hedge fund’s argument that the Secretary’s order violated the hedge fund’s First Amendment right to communicate information to consumers.

SUMMARY

Included in this Issue:

• Activity Level of New England Series A Transactions
• Activity Level of New England Series B and Later Round Transactions
• Size of New England Q2 2011 Series A Transactions by Industry
• Size of New England Q2 2011 Series B and Later Round Transactions by Industry
• The Numbers: byDave Pierson
• Selected New England Series A Round Transactions:
  • Second Quarter 2011
• Selected New England Series B and Later Round Transactions:
  • Second Quarter 2011
• Terms of Selected New England Series A Round Transactions 2010-2011
• Terms of Selected New England Series B and Later Round Transactions 2010-2011
• The National Activity Level Summary
  • National Series A Deals by Industry
  • National Series B and Later Round Deals by Industry

SUMMARY

An overview and summary tables of federal and state laws regulating data security privacy in the United States as of September 2011.

SUMMARY

On July 26, 2011 the U.S. Securities and Exchange Commission (the “SEC”) adopted Rule 13h-1, which implements registration and reporting requirements for large traders.

SUMMARY

Today President Obama signed into law the Leahy-Smith America Invents Act, considered by many to be the most sweeping reform of the United States patent system in 60 years. Among many changes, one which takes immediate effect is the creation of a new “Micro-entity” status which offers qualified applicants a 75% reduction in many Patent Office fees. The Micro-entity status is available to universities as well as to some very early stage companies and individual inventors.  [more...]

SUMMARY

On September 19, 2011, the Securities and Exchange Commission’s (the “SEC”) increased dollar amount thresholds for “qualified clients” as defined under rule 205-3 of the Investment Advisers Act of 1940, as amended, will go into effect.