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Litigation Alert >> AAA Now Requires Pre-Approval and Registration of Arbitration Clauses in Consumer Agreements, including Website Terms & Conditions - Alert - 09/14/2015

To ensure that consumer disputes will be arbitrated before the AAA, companies that have AAA arbitration clauses in their consumer agreements, including in website Terms & Conditions, should submit their clauses to the AAA as soon as possible for approval and registration. Otherwise companies risk paying additional fees, and having the AAA decline to administer a dispute.

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Labor & Employment Alert >> New York City Human Rights Law Restricts Credit Checks of Job Applicants and Employees - Alert - 09/01/2015

Employers that require job applicants in New York City to undergo background checks should assess if their background checks include credit history or could result in the retrieval of background information related to credit history. In addition, companies that regularly conduct credit checks are advised to consult with counsel and to review if any credit check policy or practice may need to be modified or discontinued for certain positions.

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Labor & Employment Alert >> Department of Labor Issues Guidance on Misclassification of Employees as Independent Contractors - Alert - 07/23/2015

While the DOL’s guidance is not a formal rule and is not binding, it represents the latest effort to deal with what DOL Wage and Hour Division Administrator David Weil has called the “growing problem” of misclassification. Employers should keep this guidance in mind and consult counsel when making decisions about the classification of certain workers. Decisions about classification will be impacted by several relevant factors, including the company’s business, the type of work being performed, and the extent to which the worker provides services to other companies.

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Litigation Alert >> Restrictive Covenants for New York Employees Must Be Tailored to Comply with New York Law - Alert - 07/06/2015

The Court of Appeals decision in Brown & Brown v. Johnson is an important reminder to New York employers that they must act with care to receive the benefits of an enforceable restrictive covenant. In particular, the decision emphasized the need for employers to tailor restrictive covenant agreements with New York-based employees to New York law and to present the agreements to employees in a non-coercive fashion.

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The American Lawyer // Cyberattack! - Press Mention - 07/01/2015

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Litigation Alert >> Commercial Lease Rent Acceleration Clauses: For How Long Will They Be Enforceable? - Alert - 05/11/2015

The Court of Appeals’ holding in Van Duzer raises questions as to the future enforceability of rent acceleration clauses in commercial leases that do not account for net present value and that give the landlord both the right of possession during the lease term and the right to immediately recover all rents due under the lease. Because a landlord has no duty to mitigate its damages, most acceleration clauses (even those that discount for net present value) allow a landlord the potential to recover more than what it might receive, but for the breach. Thus, the decision in Van Duzer may signify the beginning of a trend toward unenforceability of these acceleration clauses.

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Trademarks & Brands Online: The Power Of A Poor Review - Published Article - 04/13/2015

Marc J. Rachman; Brandie J. Lustbader

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Intellectual Property Litigation Alert >> The Supreme Court Comes Out Swinging In 2015 with Important Trademark Decision  - Alert - 03/05/2015

2015 will continue to be an active year for the Supreme Court in deciding trademark issues.  In Hana Financial, the Court resolved the split over who decides the issue of tacking, and in B&B v. Hargis, it will resolve the split over the precedential value of the TTAB’s decisions.  Whether the Court will take on even more trademark issues in 2015 is yet to be seen, but trademark and brand owners should keep their eye on B&B v. Hargis, as, depending upon its outcome, it could dramatically change what is at stake when challenging a new mark.

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Litigation Alert >> New York Federal Court Reminds Litigants of the Limits of the Attorney-Client Privilege - Alert - 01/06/2015

Companies and executives often assume that anything they say while counsel is present will be a privileged communication protected from disclosure to any third party. The MasterCard decision underscores that this is an erroneous assumption. Communications that do not concern the solicitation or provision of legal advice may not be protected from disclosure. As Magistrate Judge Netburn stated in her ruling: “A corporation cannot be permitted to insulate its files from discovery simply by sending a ‘cc’ to in-house counsel.”

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Intellectual Property Litigation Alert >> Sherlock Holmes Comes Out of the Page: Seventh Circuit Says Public Domain Characters May Lead Fictional Lives Apart From Their Copyright Owners - Alert - 12/18/2014

Fanfiction writers, rejoice!  Fictional characters that span both public domain and copyright protected works are available for use without a copyright license.  So long as the use does not copy any character elements that are copyright protected, and does not suggest any endorsement by or other connection with the character owner, the use should be safe from liability.

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New York Law Journal: Courts Put Down Their Blue Pencils - Published Article - 10/24/2014

by Neal Klausner and David Fisher:

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Intellectual Property & Technology Law Journal: The Telephone Consumer Protection Act: Privacy Legislation Gone Awry? - Published Article - 10/23/2014

by Paul Corcoran, Marc Rachman, and David Greenberg

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Advertising, Marketing & Promotions Alert >> U.S. Supreme Court’s POM Wonderful Decision: Impact on Product Advertisements & Labels  - Alert - 08/07/2014

The Supreme Court’s POM Wonderful decision is a lesson to companies and advertisers who have tried to streamline their vetting process for product advertisements and labels by focusing their efforts only on satisfying federal agencies’ regulations (e.g., FDA, U.S. Department of Agriculture (USDA), Environmental Protection Agency (EPA). The analysis of product labels and advertisements must consider all potential challenges by competitors, consumers, and other governmental agencies.

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Intellectual Property Litigation Alert >> Recent Developments in the Fight Against Patent Trolls - Alert - 06/30/2014

The Supreme Court’s Nautilus and Octane Fitness decisions represent major victories in the fight against patent trolls as they allow defendants to more easily attack “indefinite” claims,  have cases thrown out earlier in the litigation process, and to shift legal fees when the lawsuit is “exceptional.”  In addition, state legislatures and attorneys general, along with the FTC, have thrown their hats in the patent troll “boxing ring,” sending a clear message that they disfavor the tactics that patent trolls have historically employed. 

The long-term effect of all this activity by politicians and government agencies is not yet clear, but it represents an encouraging move towards further restricting the advance of patent trolls. These recent events are particularly welcome considering the Patent Transparency and Improvement Act, which would have heralded major patent reform targeted at patent trolls, was recently removed from the Senate agenda. 

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Litigation Alert >> Trend Suggests New York Courts May Refuse To Partially Enforce Overly-Broad Restrictive Covenants  - Alert - 06/25/2014

The decisions in Brown & Brown and Veramark should serve as warnings to employers.  New York courts have now repeatedly explained their concerns over employers using their superior bargaining position to require employees to sign agreements containing unreasonable and unenforceable restrictions.  Courts are apparently less willing than they once were to permit employers to require employees to agree to unreasonable restrictions and assume that the courts will blue-pencil them.  Accordingly, employers need to review their restrictive covenant agreements to make sure that they are narrowly tailored and consistent with the standards for enforceability.

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Intellectual Property Litigation Alert >> Supreme Court Clarifies Who Can Assert a Federal Claim for False Advertising  - Alert - 04/03/2014

The Supreme Court’s ruling in Lexmark should have a significant impact on Lanham Act false advertising cases. The decision adopts a simpler standard for determining Lanham Act false advertising standing that will more likely be uniformly applied by the courts. At the same time, the new standard allows for plaintiffs who are not direct competitors of the defendants to assert claims, so the decision could result in an increase in false advertising suits, especially in those Circuits that previously required plaintiffs to be direct competitors of the defendants.  

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Robotics Business Review: Patent Infringement Indemnification: What You Must Know - Published Article - 02/17/2014

by C. Andrew Keisner

 

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Litigation Alert >> A Strategy for an Early Challenge to the Class Action Complaint: The “Motion to Strike” - Alert - 02/04/2014

Under the right circumstances, the early motion to strike class allegations from a putative class action complaint can be an effective tool in limiting costs in otherwise expensive – indeed, sometimes crippling – class action litigation.  A successful motion could even result in the plaintiffs’ abandonment of the case altogether.  Companies that have been named in class actions are well advised to explore with counsel the prospects for an early motion to strike, potentially averting costly discovery and other litigation costs.



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