David A.P. Marshall

In an order that noted an attorney's remorse, a Connecticut federal judge sanctioned a solo practitioner $500 this week for submitting a brief packed with false, AI-generated case citations, finding the fake authorities wasted court resources, risked misleading a pro se litigant and undermined trust in the judicial system. In her Monday order, U.S. District Judge Janet C. Hall found that attorney David P. Stich had relied on a program called Descrybe.AI in drafting an opposition brief on behalf of his client, Milton Robinson Teletor Cojom, who is pursuing wage claims against a New Canaan, Connecticut, pizza parlor. The order notes that AI tools have entered the mainstream of the legal profession, pointing out that both Westlaw and LexisNexis offer artificial intelligence-fueled tools to subscribers. Therefore, Judge Hall said, courts should work to direct lawyers' responsible use of the technology, rather than banning it altogether. "This order should not be construed as a Luddite attack on technology and the efficiency it brings to the legal profession," Judge Hall said. "Rather, this order is an acknowledgement that AI remains a nascent technology with questionable reliability at this juncture. "Given the ethical obligations lawyers must honor, it is imperative that lawyers use AI with diligence and care," Judge Hall went on. "This technology is too unsophisticated and must necessarily yield to a lawyer's obligation of candor to the court." Upon realizing he had included numerous citation errors in a brief in July, Stich filed a declaration in which he expressed "sincere and unreserved apology" for allowing the errors, the judge noted. In September, Judge Hall warned Stich that she might be compelled to issue an "eye-catching sanction" in an effort to dissuade other attorneys from making similar errors. Stich "committed to ensuring that this type of error does not recur and to maintaining the highest standards of accuracy, candor, and professionalism in [his] future conduct before this court and all others," Judge Hall said in her order. By way of explanation, Stich said he learned of the tool from his attorney daughter, who he said touted its effectiveness, Judge Hall noted. As soon as he learned of the erroneous citations, Stich said, he canceled his paid subscription and committed to no longer using artificial intelligence. Stich said that, though he is a solo practitioner, no one who works for his practice in the future will be permitted to use AI. The judge noted he also took it upon himself to take continuing legal education courses on the use of and risks associated with AI. In the suit, Stich represents an employee pursuing claims against Roblen LLC and owner Viktor Berisha, alleging violations of the Fair Labor Standards Act and Connecticut's Minimum Wage Act. Berisha failed to appear, and Judge Hall issued a default judgment in Cojom's favor, awarding more than $214,000 in damages, $12,600 in attorney fees and $758 in costs. Berisha then made an appearance and moved to set aside the judgment. It was in Cojom's opposition to Berisha's motion to set aside judgment that Stich inserted the hallucinated citations. "The danger of attorney Stich's AI use is especially felt here because his opponent's pro se status meant that there was not an adversary capable of calling the attention of the court to the phony citations," the judge stated in her Monday order. Judge Hall denied Berisha's motion in July before ordering Stich to show cause why he should not be sanctioned. "Judge Hall's decision was well reasoned and thoughtful," Stich said in an email to Law360 on Tuesday. "I am happy to have this matter behind me." Berisha did not immediately respond to a request for comment Tuesday. Cojom is represented by Richard Rapice of the Law Office of Richard J. Rapice LLC, and David P. Stich. Berisha is representing himself. The case is Cojom v. Roblen LLC et al., case number 3:23-cv-01669, in the U.S. District Court for the District of Connecticut.

Nov 18

3 min

A pair of resort companies asked a Florida state judge for partial summary judgment in their suit accusing business firm Berger Singerman LLP of legal malpractice for mishandling their hurricane damage insurance suit, arguing that existing evidence already backs their claims. ARC Resorts LLC and American Resort Coalition Inc. said Sunday that a jury trial is unnecessary to determine the validity of their claims of unjust enrichment and breach of fiduciary duty  against Berger Singerman and partner Michael Higer due to the evidence they have already provided. "The record, built almost entirely on defendants' own documents and admissions, shows a calculated betrayal of fiduciary duties for financial gain," the resort companies' motion said. "Defendants' actions are not just a matter of professional negligence; they constitute clear, unambiguous violations of the rules regulating the Florida bar, for which there is no genuine dispute of material fact." The resort companies first sued Berger Singerman last November, accusing the firm and Higer of breaching their fiduciary duty, committing legal malpractice and failing to "properly perfect" a statutory bad faith claim under a certain insurance-related Florida statute. The case stems from damage during 2016's Hurricane Matthew to the Americano, a nine-story, 200-room timeshare and hotel building in Daytona Beach with amenities like a health spa, laundry and other guest services. The Americano was insured for building damages and business interruption as a result of the damages. Berger Singerman was initially retained as joint counsel for the two plaintiffs along with a third party, Americano Beach Lodge Resort Condominium Association Inc., to handle an insurance claim matter related to the building damage. When a conflict of interest arose due to a business interruption claim by ARC and American Resort, the resort companies said the firm violated Rules 4-1.7 and 4-1.9 of the Florida Rules of Professional Conduct by continuing to represent Americano while unilaterally dropping them as clients in the matter. "The undisputed evidence establishes that defendants violated their duties of loyalty and confidentiality by continuing to represent a client after a conflict arose, dropping their other clients like 'hot potatoes,' and then representing an adverse party, all without the required informed written consent," the resort companies' motion said. The resort companies added that Berger Singerman violated its fiduciary duties to them by using information from a forensic accounting report gained during its prior representation. Because of its violation of fiduciary duties, the resort companies said, it can be proven that Berger Singerman unjustly obtained a $700,000 legal fee from its representation of Americano, adding that they should be provided with a full record of the finances of the matter and that the firm should return any funds illegally obtained. "Because defendants secured a substantial legal fee as a direct result of their ethical breaches, that fee is voidable under well-settled Florida law. It is inequitable for defendants to retain a fee earned from a representation tainted by disloyalty and conflicts of interest," the resort companies' motion said. "As a direct remedy for the breach of fiduciary duty and unjust enrichment, plaintiffs are entitled to a full accounting of the settlement funds and fees defendants obtained and to the disgorgement of all wrongfully obtained benefits." Counsel for Berger Singerman declined to comment on the matter beyond stating that a response will be provided by Dec. 19. ARC Resorts and American Resort Coalition are represented by Theodore A. Corless of Corless Law Group. Berger Singerman is represented by David P. Ackerman, John L. Dicks II and Monica M. Kovecses of Akerman LLP. The case is ARC Resorts LLC v. Michael Higer et al., case number 2024-13748-CICI, in the Seventh Judicial Circuit Court of Florida.

Nov 14

3 min

The U.S. Supreme Court on Monday rejected six petitions in patent-related cases, taking some of its first actions on intellectual property matters this term. Here's a look at the cases the justices turned down in their order list. Unless otherwise stated, representatives for the parties did not respond to requests for comment Monday. Purdue v. Accord The high court declined to accept Purdue Pharma LP's appeal of a Federal Circuit decision denying the company's efforts to save a group of patents covering the pharmaceutical company's crush-resistant version of painkiller OxyContin. A Delaware federal court had concluded that the asserted patent claims were invalid as obvious, a decision that the Federal Circuit affirmed in December 2024, saying that the "district court did not err in its determination that routine experimentation would lead a person of ordinary skill to 'quickly postulate ... and easily confirm the existence'" of an impurity that one group of patents sought to eliminate, the appeals court said. Purdue told the high court in its petition in April that the Federal Circuit has taken far too rigid an approach to obviousness, including by adopting a so-called nexus requirement for secondary considerations of nonobviousness. "The Federal Circuit has invented and deployed a stringent analysis and so-called 'nexus' test that demands evidence of a direct connection between the objective indicia and a particular claim limitation, while foreclosing recourse to broader inferences and common-sense," the petition said. Purdue is represented by Gregory G. Garre, Margaret A. Upshaw, Alexander G. Siemers, Timothy J. Borgerson and Daniel G. Brown of Latham & Watkins LLP. Accord is represented by Alejandro Menchaca and Ben J. Mahon of McAndrews Held & Malloy Ltd. The case is Purdue Pharma LP et al. v. Accord Healthcare Inc., case number 24-1132, in the Supreme Court of the United States. D R Burton v. Trudell The justices shut down a petition from a medical device maker that has taken issue with a North Carolina federal judge's oversight of a patent infringement case. D R Burton Healthcare LLC in June filed its Supreme Court challenge against the Federal Circuit decision that ordered a new trial in the patent infringement case brought against it by Trudell Medical International Inc. Trudell has asserted a patent for a respiratory treatment device. The Federal Circuit took issue in February with U.S. District Judge Terrence Boyle's decision to allow tardy testimony from a witness who took D R Burton's side, as well as statements from him that had the effect of "undermining the appearance of justice and fairness." But D R Burton has argued that the appeals court didn't address issues with the pacing of the case, contending that the judge put the proceedings on too quick of a schedule. "The lack of meaningful time to complete its obligations to the court and to prepare for trial in the substantially reduced time frame set forth by the court was a violation of D R Burton's due process rights," the company said in its petition. Counsel for Trudell declined to comment. D R Burton is represented by Albert P. Allan of Allan Law Firm PLLC. Trudell is represented by David P. Lindner of Crowell & Moring LLP. The case is D R Burton Healthcare LLC v. Trudell Medical International Inc., case number 25-17, in the Supreme Court of the United States. Lowe v. ShieldMark The high court denied a petition by the inventor of a patent covering a type of marking tape that asked the justices to take a closer look at what the Federal Circuit called a case with a "complex procedural history." The August petition from Cliff Lowe and Spota LLC asked the Supreme Court to review the Federal Circuit's opinion, which in March affirmed an Ohio federal court's conclusion that the patent was invalid as anticipated. Lowe and Spota had filed a patent infringement case against ShieldMark Inc. over the floor marking tape that it sold in 2019, and the lower court issued a ruling in ShieldMark's favor based on a claim construction ruling. But the Federal Circuit voided that claim construction ruling and ordered the lower court to take another crack at the case, which resulted in a ruling that found the plaintiffs lacked standing, and that in the alternative, the claims were anticipated. On appeal again, the Federal Circuit disagreed with the court's standing conclusion, but it agreed with the invalidity finding. Lowe and Spota have since taken issue with the Federal Circuit affirming a ruling that was made on an alternative basis. Lowe is represented by Ray L. Weber and Laura J. Gentilcore of Renner Kenner Greive Bobak Taylor & Weber Co. LPA. Shieldmark is represented by James F. McCarthy III of Sand Sebolt & Wernow LPA. The case is Clifford A. Lowe et al. v. ShieldMark Inc. et al., case number 25-169, in the Supreme Court of the United States. USAA v. PNC Bank The Supreme Court rejected United Services Automobile Association's efforts to revive two of its patents, one of which was at issue in its reversed $218 million infringement verdict against PNC Bank, declining to weigh in on this round of litigation between the companies, whose patent fights have led to numerous proceedings at the USPTO and Federal Circuit. USAA's petition took aim at a Federal Circuit decision that affirmed the Patent Trial and Appeal Board rulings invalidating claims in the patents covering mobile check deposit technologies. One of those patents was at issue in a $218 million infringement verdict against PNC, although the Federal Circuit in June undid that verdict and another for around $4.3 million in a separate case. The August cert petition from USAA said the PTAB invalidated claims in two of the patents, even though the board had reached a different decision in a similar challenge brought by Wells Fargo. "The Federal Circuit's decision is wrong and tells the agencies falling under the Federal Circuit's exclusive jurisdiction that they need not justify their own inconsistencies, even on the same issue and on materially similar records," its petition said. Counsel for PNC declined to comment. USAA is represented by William M. Jay and Rohiniyurie Tashima of Goodwin Procter LLP and Lisa Glasser, Anthony Rowles and Stephen Payne of Irell & Manella LLP. PNC is represented by Mark C. Fleming, Andrew J. Danford, Gregory H. Lantier and Joseph M. Meyer of WilmerHale. The case is United Services Automobile Association v. PNC Bank NA, case number 25-149, in the Supreme Court of the United States. Crocs v. Double Diamond In another matter that's part of a group of cases the Federal Circuit has deemed complex, the Supreme Court said it won't take on a case by Crocs challenging the appeals court's decision reviving false advertising claims against the company over its statement that its shoes were made with "patented, proprietary, and exclusive" materials that were not, in fact, patented. The July petition from Crocs said the Federal Circuit "entrenched a significant circuit split over the breadth of the Lanham Act's false advertising cause of action" when it reversed in October 2024 a Colorado federal judge's conclusion that the shoemaker's claims don't fall under the Lanham Act's prohibition on false advertising under Section 43(a)(1)(B). Double Diamond Distribution Ltd. and U.S.A. Dawgs Inc. brought their false advertising claims after Crocs sued them for patent infringement in 2016, and the appeals court said Dawgs furnished evidence indicating that Crocs' claims about the supposed patent on its shoe material spoke to the nature and characteristics of the shoes. The appeals court said 43(a)(1)(B) specifically covers claims to a product's "nature, characteristics, [and] qualities." Matthew G. Berkowitz of Reichman Jorgensen Lehman & Feldberg LLP, who has represented Double Diamond Distribution, said in an email that they "expected this result and are now looking forward to finally getting justice in district court for Crocs' years of misrepresentations to the public about the characteristics of their shoe material." Crocs is represented by Lisa S. Blatt and Rohit P. Asirvatham of Williams & Connolly LLP and John P. Elwood, Andrew T. Tutt, Sean M. Callagy, Isaac L. Ramsey and David A. Caine of Arnold & Porter Kaye Scholer LLP. Double Diamond Distribution is represented by Matthew G. Berkowitz, Navid C. Bayar, Brian C. Baran, Adam Adler, Sarah O. Jorgensen and Nathaniel G. Warner of Reichman Jorgensen Lehman & Feldberg LLP. The case is Crocs Inc. v. Double Diamond Distribution Ltd. et al., case number 25-75, in the Supreme Court of the United States. R.J. Reynolds v. Altria The Supreme Court declined to consider R.J. Reynolds Vapor Co.'s challenge to a $95 million verdict against it for infringing Altria vape patents. R.J. Reynolds' high court case targeted what it called the Federal Circuit's embrace of so-called built-in apportionment, which the company said is based on "comparable" patent license agreements and allowed Altria "to obtain damages on technologies it never patented, and on profits resulting from Reynolds's contributions, over which Altria obviously holds no patent rights." Such a doctrine flouts the historic notion that patent owners can only recover damages based on what they actually invented, R.J. Reynolds said. The Federal Circuit's opinion in the case, from December 2024, included a dissent from U.S. Circuit Judge William Bryson on the issue of damages. The judge said he believed the evidence supported a royalty rate of about half the 5.25% rate that Altria sought. R.J. Reynolds is represented by Jason T. Burnette, Alexis A. Smith, John R. Boulé III, Gregory A. Castanias, Amelia A. Degory and David M. Maiorana of Jones Day. Altria is represented by Mark A. Perry of Weil Gotshal & Manges LLP. The case is R.J. Reynolds Vapor Company v. Altria Client Services LLC, case number 25-158, in the Supreme Court of the United States.

Oct 6

8 min

A slew of retailers on Tuesday accused Bausch Health Cos. Inc. and Teva Pharmaceuticals of working together to keep the generic version of an irritable bowel syndrome drug off the market until 2028, forcing the retailers and other purchasers of the drug to pay monopoly prices. Walgreen Co., The Kroger Co., Albertsons Companies Inc., H-E-B LP and SuperValu Inc. filed suit in Rhode Island federal court, claiming that a 14-day supply of Xifaxan 550 milligrams should cost less than $200. However, Bausch is charging more than $2,000 for that supply, raking in nearly $2 billion in sales of the drug, the retailers said. Bausch is able to do so because of a pay-for-delay deal it reached with Teva in 2018, the retailers said. "Defendants' violation of federal antitrust law allowed Bausch to charge more than ten times the competitive price for Xifaxan 550 mg, extracting billions of dollars from Xifaxan purchasers marketwide," they said in the complaint. According to the retailers, Xifaxan contains the active pharmaceutical ingredient rifaximin, and it's the only rifaximin product available on the market to treat irritable bowel syndrome with diarrhea, or IBS-D. Millions of Americans rely on rifaximin, with some taking it for the rest of their lives, the retailers said. Bausch obtained a series of secondary patents on the use of rifaximin to treat IBS-D, but those patents were weak and couldn't prevent competition from generic versions, the retailers said. The patents were eventually invalidated, they noted. However, when Teva's predecessor developed a generic, Bausch sued for patent infringement, according to the suit. The companies reached a settlement before the court ruled on the merits of the litigation, the retailers said. Under that deal, Bausch paid Teva to stay out of the market for nine years — until January 2028, they said. "One of the payments from Bausch to Teva took the form of an agreement that, if Teva agreed not to compete with Bausch until January 2028, Bausch would not compete with Teva when Teva finally did enter the market by marketing Bausch's own generic version of Xifaxan — a so-called authorized generic," the retailers said. "Teva's agreement to delay its entry was extremely valuable to Bausch, and Bausch's agreement not to compete with Teva by launching an AG was extremely valuable to Teva." In fact, the retailers said, Bausch's payment was likely worth more than $300 million to Teva, "far more than Teva could have made by winning the patent case and competing fairly, and lawfully, against Bausch." On top of that, Bausch and Teva included provisions in their agreement that aimed to deter other generic competitors, the retailers said. Specifically, the two pharmaceutical companies agreed that "if another generic manufacturer enters the market before January 2028 — by prevailing against Bausch in patent litigation, getting a license from Bausch, or using a special statutory provision that Congress created — then Teva can also enter on that earlier date," the retailers said. That eliminated the possibility that a subsequent filer could enter the market before Teva and reduced the incentive for other generics makers to challenge the patents, according to the complaint. Bausch has also received additional patents and unlawfully listed those in the U.S. Food and Drug Administration's Orange Book, giving it 30-month stays of competition, the retailers alleged. The retailers are alleging monopolization and an unlawful reverse-payment agreement. They're seeking unspecified overcharge damages, attorney fees and an injunction blocking the pharmaceutical companies from continuing their allegedly illegal conduct. "As a result of Bausch's and Teva's unlawful conduct, generic Xifaxan 550 mg still has not entered the market seven years after the unlawful agreement with Teva and three years after a federal court declared Bausch's IBS-D patents invalid," the retailers said. "Plaintiffs and other purchasers of the drug continue to pay monopoly prices rather than competitive prices for rifamaxin and are likely to do so until some time significantly after January 2028." Bausch, Teva and counsel for the retailers didn't immediately respond to requests for comment late Tuesday. The retailers are represented by Matthew T. Oliverio of Oliverio & Marcaccio LLP, Scott E. Perwin, Lauren C. Ravkind, Anna T. Neill, Joseph M. Vanek, David P. Germaine, John P. Bjork and Phillip F. Cramer of Sperling Kenny Nachwalter LLC. Supervalu is also represented by Steve D. Shadowen, Matthew C. Weiner and Melissa Mather of Hilliard Shadowen LLP. Counsel information for the pharmaceutical companies was not available Tuesday. The case is Walgreen Co. et al. v. Bausch Health Companies Inc. et al., case number 1:25-cv-00515, in the U.S. District Court for the District of Rhode Island.

Oct 7

3 min

A group of Oklahoma-based companies accused retail-focused real estate investment trust Simon Property Group Inc. of waging "an anticompetitive campaign" to take down their competing mixed-use project in Oklahoma City. In a suit filed Tuesday in Oklahoma federal court, the companies accused the REIT, its Chairman and CEO David Simon and other related parties of attempting to undermine the OAK project, a development that includes retail, residential and office space. Simon Property Group's nearby Penn Square Mall is a major business competitor. "Rather than fairly compete with OAK for retail tenants and customers by investing in Penn Square Mall to spur interest in Oklahoma City, defendants have abused SPG's monopoly power to prevent prominent retail brands from opening stores at OAK or, in some cases, from opening stores anywhere in Oklahoma City," the companies claimed. The entities that filed the suit — Veritas Development LLC, NWPF LLC and NWPF subsidiaries Oak Land and Development LLC, Oak Phase I Property Owner LLC, Oak Hotel Owner LLC, Oak Block 2 LLC, Oak Block 3 LLC and Oak SE Corner LLC — said they've been developing the OAK project for over 10 years, but Simon Property Group is trying to "destroy" it by engaging in anticompetitive tactics. "Among other conduct, defendants have used SPG's vast portfolio of properties to restrain tenants' choices, including by offering prospective tenants that are considering leasing space at OAK preferred terms or 'package deals' involving leases at SPG properties in other states that are conditioned on the prospective tenant either leasing or renewing space at Penn Square Mall, or blocking prospective tenants from leasing space at any competing shopping center in Oklahoma City," the companies said. Simon Property Group also tried to make the Oklahoma City Council shoot down Veritas Development's "requested zoning changes" in 2019, according to the lawsuit. The REIT also scared away anchor tenants like restaurant chains North Italia and Culinary Dropout from the OAK project, the companies claimed. The OAK development started talking to North Italia and Culinary Dropout owner Cheesecake Factory Inc. in October 2022 about the restaurant chains becoming tenants, according to the complaint. The negotiations led to Cheesecake Factory making plans to open North Italia and Culinary Dropout locations at the project in 2025 and 2026, respectively, the suit said. But when the REIT learned about these plans, it tried to force Cheesecake Factory to ditch the OAK project for the Penn Square Mall, the companies claimed. "On information and belief, [Cheesecake Factory] initially rebuffed defendants, notifying defendants in or about January and/or February 2025 that it was not interested in leasing space at Penn Square Mall," the suit said. "On information and belief, defendants responded by using SPG's enormous market power to force [Cheesecake Factory] to suspend its lease negotiations with OAK and enter a contractual investigation period to further evaluate potential locations at Penn Square Mall," the companies continued. "As a result, in April 2025, [Cheesecake Factory] informed plaintiffs that further discussions regarding its planned locations at OAK would be delayed as it investigated options to instead open a new North Italia location at Penn Square Mall." In July, Cheesecake Factory told the plaintiff companies that it was still going to open North Italia and Culinary Dropout locations at OAK, according to the complaint. But the restaurant eventually gave in to Simon Property Group's demands and told the OAK companies in September that it wanted to open a North Italia spot at the Penn Square Mall instead, the suit said. "As a result of defendants' coercive conduct, plaintiffs' negotiations with [Cheesecake Factory] were terminated, and plaintiffs were unable to consummate a final lease agreement for North Italia at OAK," the companies claimed. "The loss of North Italia and likely Culinary Dropout as anchor tenants was devastating for OAK." The LLCs also pointed to prior antitrust investigations and litigation against Simon Property Group, such as an antitrust probe the New York Attorney General's Office launched into the company in 2017 and eventually settled. Counsel for the companies, John C. Hueston, told Law360 Real Estate Authority on Wednesday that Simon Property Group is unfairly undermining its competition. "As alleged in the complaint, Simon Property Group has a history of abusing its enormous market power to hurt competitors and consumers," Hueston said. "OAK and Oklahoma City are only its latest victims." "Through this lawsuit, OAK is standing up to that bullying and seeking to repair the enormous damage Simon has already caused," he also said. However, in a Wednesday statement sent to Law360, a Simon spokesperson slammed the suit. "This is a meritless and fictional lawsuit from a competitor that is struggling to lease space," the spokesperson said. "Penn Square has competed lawfully for tenants, and it is those tenants that have the power to select where they open stores." "We will continue with our plans to deliver exciting new tenants at Penn Square while defending ourselves vigorously from these baseless claims," they added. Simon Property Group's counsel information wasn't immediately available. The OAK companies are represented by M. Richard Mullins and Andrew J. Morris of McAfee & Taft APC and John C. Hueston, Marshall A. Camp, Justin M. Greer and Raymond Magsaysay of Hueston Hennigan LLP. The case is Oak Land and Development LLC et al. v. Simon Property Group Inc et al., case number 5:25-cv-01444, in the U.S. District Court for the Western District of Oklahoma.

Dec 3

4 min