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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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Litigation Alert >> Employees Who Don’t Affirmatively “Opt-Out” of Employer’s Arbitration Policy May Be Bound to Arbitrate Disputes - Alert -  11/25/2013

By Neal H. Klausner and Rachel A. Owens

A recent decision by the Sixth Circuit Court of Appeals concerning an employment discrimination lawsuit filed in Michigan is a significant victory for employers seeking to compel their employees to arbitrate employment disputes. In Tillman v. Macy’s, Inc., the court held that an employee was bound to an agreement to arbitrate her employment-related claims, even though she never signed the agreement, because she had failed to “opt-out” of the agreement and continued her employment.

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Litigation Alert >> Clemens Strikes Out In Bid To Extend Privilege To Public Relations Team - Alert -  10/31/2013

by: Ina B. Scher and Jami E. Holland

The United States District Court for the Eastern District of New York in McNamee v. Clemens ordered former baseball great Roger Clemens to produce emails and other communications with his public relations team in the defamation case brought by Brian McNamee, Clemens’ longtime former trainer.

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Robotics Business Review Keeping Things Confidential: Robotics Trade Secrets 1.0 - Published Article -  10/21/2013

by C. Andrew Keisner

Especially in this industry, where robotics veterans have established lasting relationships, there is a real fear of tarnishing a company’s reputation by suing a former employee and the competitor company that s/he joined. But the fact that your company loathes such aggressive action is no justification for poor planning when it comes to protecting your robotics company’s trade secrets. A robust trade secrets policy does more than form the basis of your company’s future lawsuits against those who flee with your "special sauce" – it also sends a strong warning to any competitors who consider hiring away your employees for the wrong reasons.

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Perfect Ten: Best Lawyers Honors Ten Davis & Gilbert Partners in the Areas of Advertising, Employment, Litigation, and Real Estate - Press Release - 08/15/2013

Davis & Gilbert is pleased to announce that ten of the firm’s partners have been named to the 2014 edition of The Best Lawyers in America, the oldest and most venerable peer-review publication in the legal profession.

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Litigation Alert >> RMBS Put-back Decision Regarding Timeliness is at Odds with Prevailing Case Law - Alert -  06/27/2013

By Joseph Cioffi and James R. Serritella

In a controversial decision potentially opening the door to more "put-back" actions based on alleged breaches of representations and warranties involving residential mortgage-backed securities (RMBS), Justice Shirley Kornreich of the New York Supreme Court in ACE Sec. Corp. v. DB Structured Products, Inc. (DBSP) disagreed with prevailing federal case law and held that under New York law, the statute of limitations does not start to run on a put-back claim until the defendant refuses to satisfy a put-back (i.e., repurchase) demand.

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Intellectual Property Litigation Alert >> Supreme Court To Decide If False Advertising Claims Are Limited To Just Direct Competitors - Alert -  06/27/2013

By Marc J. Rachman and David S. Greenberg

The United States Supreme Court recently agreed to hear an appeal concerning the requirements for who has the right to assert a federal claim for false advertising. The outcome of the case could have significant implications for false advertising claims in the future. Currently, there is a split among the federal circuit Courts of Appeal, with three circuits requiring that a party be a direct competitor to have standing to bring a false advertising claim and six circuits allowing false advertising claims to be brought by parties who are not direct competitors under certain conditions.

 

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Litigation Alert >> Service of Documents via Facebook? One Judge “Likes” It - Alert -  04/10/2013

By Neal H. Klausner; Rachel A. Owens

When litigators think about service of process in a federal case, they generally recall the traditional methods of service in Rules 4 and 5 of the Federal Rules of Civil Procedure. For service on individuals, these methods include personally handing documents to an individual or leaving them at the individual’s residence with someone of suitable age and discretion.

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New York Law Journal: Are Restrictive Covenants Enforceable Against Employees Terminated Without Cause? - Published Article -  04/01/2013

By Neal H. Klausner; David Fisher

In doing so, these courts relied on Post v. Merrill Lynch, Pierce, Fenner & Smith, a case in which the New York Court of Appeals held that when an employee is terminated without cause, and thereafter enters into competition with his or her former employer, it would be unreasonable as a matter of law to enforce an agreement providing that the employee forfeit previously earned pension benefits based on such competition. But the Second Circuit’s recent decision in Hyde v. KLS Prof’l Advisors Grp., suggests that the lower courts have extended the ruling in Post beyond its intended limitation to the forfeiture-of-benefits-for-competition context, and may indicate an end to the automatic rule that restrictive covenants are unenforceable when an employment relationship is terminated without cause.

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New York County Lawyer: Recent Cases Demonstrate the Effectiveness of First Amendment Defenses to Claims of Intellectual Property Infringement - Published Article -  03/11/2013

By: Marc J. Rachman and Dominick R. Cromartie

There have been a number of recent cases reported in the press that have raised defenses un-der the First Amendment in response to claims of intellectual property infringement or right of publicity violations. For example, in February of 2012, an app developer sought First Amend-ment protection for its parody app called "Joustin Beaver" by filing a lawsuit seeking a declara-tion that the game did not violate Justin Bieber’s right of publicity because, among other things, it was protected speech. Similarly, in December of 2012, Sony Pictures moved to dismiss on fair use grounds a copyright infringement lawsuit concerning the use of William Faulkner’s famous quote, "The past is not dead! Actually, it’s not even past," in the Woody Allen film, Midnight In Paris. And in a matter that was not litigated, but widely reported, Paramount Pictures Corp. re-fused Anheuser Busch’s request that it remove the Budweiser logo from the film Flight, in which Denzel Washington portrayed a highly functional alcoholic airplane pilot, on the grounds that such use was protected under the First Amendment. This article will discuss the origins of these defenses and how several recent court decisions have upheld their application in connection with a reference to Lindsay Lohan in a rap song, the use of biographical information about Olympic athletes in a Facebook app, the appearance of a Louis Vuitton knockoff bag in the film Hangover II, the depiction in paintings and prints of the University of Alabama’s football team, and the lampooning of a viral video in an episode of the television show South Park.

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Litigation Alert >> Recent Class Action Settlement Underscores Employer Obligations under Wage and Hour Laws - Alert -  03/04/2013

By Michael C. Lasky; Shira Franco; Jason A. Roth

A recent multimillion dollar wage and hour class action settlement by major investment bank Merrill Lynch serves as an important reminder to employers of their obligations under federal law to properly classify, and pay overtime wages to, all eligible employees who work more than 40 hours per week.

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PRWeek: Incentives for Higher Performance - Published Article -  02/11/2013

The beginning of the year is a good time for a PR firm, like any business, to think carefully about its strategic initiatives. It is an equally opportune time to consider what initiatives really mean to revenue growth and how an agency’s key team is compensated.

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Intellectual Property Litigation Alert >> Olympians’ Right of Publicity Claims Over a Facebook App Trumped by First Amendment - Alert -  02/04/2013

By Marc J. Rachman and Dominick R. Cromartie

A California state court recently dismissed a lawsuit brought by former Olympians, including Mark Spitz and Greg Louganis, against Samsung for right of publicity violations over a Facebook app that used their names, images and biographical information without their consent.

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Litigation Alert >> Protect Your Tweets: A Cautionary Tale Regarding Social Media Account Ownership - Alert -  01/08/2013

By Jennifer Tafet Klausner and Jason A. Roth

A recent case from the Northern District of California demonstrates the increasing importance for businesses using social media to establish clear policies notifying employees that social media accounts used in connection with their employment are company, not employee, property.

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Intellectual Property Litigation Alert >> Court Flags Historical Use of NFL Team’s Former Logo in Video Game as Infringing - Alert -  12/19/2012

By Marc J. Rachman, David S. Greenberg and C. Andrew Keisner

Copyright law has long recognized that an artist’s right to protect his or her creation is somewhat limited by others’ rights to make fair use of a work in a reasonable manner. Courts frequently hold that copyrighted works can be used without liability, as "fair use," in news reporting, critical commentary, and historical scholarship.

 

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PRWeek: The PR Agency of Tomorrow is Here Today - Published Article -  12/11/2012

In my most recent column, CEOs of eight prominent independent PR firms shared their views about the agency of tomorrow. Now it’s my turn. The PR firm of tomorrow will be organized around the delivery and implementation of big ideas to their clients and stakeholders. This will change what PR agencies do and how they describe their services.

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Litigation Alert >> District Court Ruling May Lead to Increased Dodd-Frank Retaliation Suits - Alert -  12/04/2012

By Neal H. Klausner and David S. Greenberg

A recent ruling by a Connecticut federal court may lead to a rise in "whistleblower" lawsuits filed under the Dodd-Frank Act (the Act), which protects employees who attempt to expose corporate improprieties.

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Intellectual Property Litigation Alert >> Recent Cases Expand Use of “Artistic Relevance” Test as a Defense for Trademark Infringement - Alert -  11/30/2012

By Marc J. Rachman and Dominick R. Cromartie

In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.

 

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Law360 >> Use of “Artistic Relevance” Test is Expanding - Published Article -  11/06/2012

By Marc J. Rachman and Dominick R. Cromartie

In the case Webceleb Inc. v. The Procter & Gamble Company et. al., a California federal court recently held that the use of the term "Web Celeb" as a title for an award category in the People’s Choice Awards did not infringe the plaintiff’s trademark in "WEBCELEB," as it satisfied the "Artistic Relevance" test.

 

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Making Your Robotics Company a More Attractive Investment - Published Article -  10/21/2012

By C. Andrew Keisner

Any robotics business whose value is being assessed, whether for a strategic investment, acquisition, IPO, or any other reason, will almost certainly have their intellectual property reviewed as part of that assessment. While two companies may appear similar to potential investors at first glance, a robotics company without intellectual property can appear vulnerable, whereas a company with the right combination of intellectual property will convey that it is well-run and a sound investment.

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PRWeek: Agency Heads Describe What the PR Firm of 2017 Will Look Like - Published Article -  10/12/2012

By Michael Lasky

On November 14, PRWeek will host The PRWeek Con-ference – Power to the People. The event, which takes place at The Sentry Centers in New York City, will provide interactive workshops, keynotes, and panel discussions. Several of the sessions (including the one in which I am participating, called "The Battle of Big Ideas") will address anticipated changes to the PR industry and its agencies."

What is the most important way in which the PR agency of 2017 will be different from the PR agency of today?" I posed this question to eight leaders of independent agencies. Here are their replies:

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2012 New York Super Lawyers and Rising Stars-Metro Edition Honors Nine Davis & Gilbert Partners - Press Release - 10/02/2012

New York, NY, October 1, 2012 – Nine Davis & Gilbert partners have been selected to appear on the 2012 New York Super Lawyers and Rising Stars-Metro Edition list in the areas of First Amendment/Media/Advertising, Employment & Labor, Intellectual Property Litigation, Business Litigation and Real Estate. In addition, Neal H. Klausner and Gerald R. Uram were ranked as Top 100 New York Super Lawyers. These lawyers received the highest point totals in the New York Metro nomination, research and review process.

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Best Lawyers Distinguishes Nine Davis & Gilbert Partners in the Areas of Advertising, Employment, Litigation, and Real Estate - Press Release - 09/19/2012

Davis & Gilbert is proud to announce that nine of the firm’s partners have been recognized in the 2013 edition of The Best Lawyers in America, the oldest and most venerable peer-review publication in the legal profession.

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PRWeek: Agencies Could Pay if They Give Clients Too Much Credit - Published Article -  08/28/2012

By Michael C. Lasky

In today’s economic climate, PR firms need to be increasingly careful about the clients with whom they choose to do business and even more careful about the credit terms under which they do so. Crisis communications, in particular, require rapid and intensive action. There is often little time to consider the potential exposure to the PR firm should its client present a serious credit risk or, worse yet, file for bankruptcy.

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Litigation Newsletter >> Summer 2012 - Newsletter -  08/13/2012

IN THIS NEWSLETTER: Maintaining sound business practices in order to avoid costly litigation is always a good idea. In this issue, we discuss a case that has practical implications for employer investigations concerning harassment and discrimination claims; give advice to brand owners that may be using a competitor’s trademark as a keyword in a search engine advertising program; and provide guidance to contract drafters given recent case law regarding the enforcement of contractual terms.

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The CPA Journal: The Increased Importance of Non-Compete Agreements for Accounting Firms - Published Article -  08/10/2012

By Michael C. Lasky and David S. Greenberg

It has been said that it is wise to keep your friends close and your enemies closer. In these challenging economic times, accounting firms are increasingly following this maxim when it comes to postemployment restrictions for departing professionals. In fact, growing numbers of accounting firms are making certain that they have the right form of non-compete and protective covenant agreements in place with their employees, managers, and partners in order to ensure that accountants cannot leave the firm and take their books of business and client relations to a competitor. More and more well-known New York accounting firms are going to court to enforce their rights under such agreements when once-loyal accountants leave the firm and then seek to service former clients or hire employees from their former firm.

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Intellectual Property Litigation Alert >> Ninth Circuit Draws Line On Red Carpet In Determining Consent In Right Of Publicity Cases - Alert -  08/01/2012

By Neal H. Klausner and Dominick R. Cromartie

The Ninth Circuit struck a blow to celebrities seeking to expand the protections provided under the right of publicity by holding that, under California law, consent to advertise a celebrity’s photo may be implied in certain contexts when the celebrity has consented to being photographed. In Jones v. Corbis, Shirley Jones, a former Partridge Family star, sued an online provider of photo image licensing for displaying her image to potential licensees without her consent.

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Intellectual Property Litigation Alert >> Ninth Circuit Shreds Proposed Frosted Mini-Wheats Class Action Settlement - Alert -  07/25/2012

The Ninth Circuit did not sugar coat its decision rejecting the proposed $10.6 million settlement in a putative class action accusing Kellogg Co. of making false claims that Frosted Mini-Wheats enhance children’s ability to pay attention.

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IP Law360: Case Study: Forest Park Pictures V. Universal Television - Published Article -  07/09/2012

By Marc J. Rachman and C. Andrew Keisner

The Second Circuit’s recent decision in Forest Park Pictures v. Universal Television Network Inc.[1] found that the “Star Wars” actor Hayden Christensen’s claim for breach of an implied contract was not preempted by the Copyright Act. Christensen had alleged that the USA Network series “Royal Pains” used, in breach of their implied contract, the idea he pitched to them for a television show about a “concierge” doctor to the rich and famous. He had claimed that there was an implied contract that he would be paid if his pitch was used and that USA Network breached that contract by failing to pay him for “Royal Pains.”

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Litigation Alert >> More Than Ever, Companies Must Be Extra Vigilant About Protecting Their Trade Secrets  - Alert -  05/22/2012

A recent Second Circuit decision has narrowed the protections afforded against theft of proprietary information, trade secrets and intellectual property and will affect the way companies, especially those in technology-intensive markets, internally manage the protection of their own trade secrets and other sensitive information from employee theft.

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Practical Law Company: Expert Q&A on Recent Attempts to Expand the Right of Publicity - Published Article -  04/23/2012

Celebrity endorsements and affiliations can add significant value to advertising campaigns. New marketing and media platforms, including social media, are presenting increased opportunities for these individuals to exploit the value of their identities. To maximize this value, celebrities are seeking expanded control over the unauthorized commercial exploitation of their personas(identities) under state right of publicity laws. Recent lawsuits have highlighted the need for advertisers, agencies and their counsel to better understand and track developments in this evolving area of law. Practical Law Company asked Neal Klausner of Davis & Gilbert LLP to weigh in on the current legal landscape and how best to manage the risks and potential liability arising from right of publicity claims.

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Law360: Case Study Viacom v. YouTube - Published Article -  04/19/2012

By Marc J. Rachman and Holly Melton

The Second Circuit recently breathed new life into Viacom International Inc.’s and other video content owners’ copyright infringement lawsuit against Google Inc.'s YouTube that alleges over 70,000 instances of infringement on YouTube’s site between 2005 and 2008. However, in doing so, it did not severely limit the “safe harbor” protections of the Digital Millennium Copyright Act as Viacom had urged the court to do.



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