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Litigation Alert >> Property and Business Interruption Insurance in Light of COVID-19 - Alert - 10/02/2020

In light of COVID-19, companies should review their insurance policies to make certain they are updated to improve their chances of triggering coverage for future pandemics.

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Employment Litigation Alert >> Summer Camp Closures and Cancelled Enrichment Programs Allow Working Parents to Request Paid Leave from Covered Employers - Alert - 07/01/2020

Employees who managed to both work or telework, and take care of their kids when schools were closed during the months of April, May and June 2020, could be eligible for a paid leave during the summer months to care for kids if their planned camp or other summer program is also closed due to COVID-19.

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Employment Litigation Alert >> Supreme Court Rules that Federal Law Protects Gay and Transgender/Transitioning Employees from Workplace Discrimination   - Alert - 06/17/2020

Firing an employee for being gay, bisexual, transgender or transitioning is a violation of federal law. Employers should be mindful that such discrimination may seep into the workplace in much more subtle ways than an employee’s termination. Employees should be encouraged to shed gender-based notions of what a male and female colleague “should” look like and employers should adopt gender neutral policies that do not require employees to choose a binary male or female gender identity at work.

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Real Estate Litigation Alert >> New York State Court Reopening Changes Landlord-Tenant COVID-19 Landscape - Alert - 06/03/2020

Now that the New York State Courts are open for business, landlords have more flexibility in the type of default notices that they can send and they can start taking steps toward lease termination. Similarly, even during the eviction moratorium period, tenants must view any default notice attempting to terminate its lease with a higher degree of urgency and ensure that it avails itself of all rights and remedies to avoid having its lease terminate on notice.

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Employment Litigation Alert >> Protective Covenant Considerations in the COVID-19 Era - Alert - 05/20/2020

In the current economic environment, courts may be less willing to enforce broad protective covenants that restrict former employees from accepting new job opportunities.

Now is the time for employers to take a hard look at their protective covenants and make sure that they are only as broad as necessary to protect the company’s legitimate business interests.

Employers should consider offering employees terminated without cause benefits the employee would not otherwise be entitled to in exchange for the employee’s agreement to adhere to reasonable restrictions.

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Litigation Alert >> How New York’s COVID-19 Executive Orders Affect Limitations Periods in New York - Alert - 04/30/2020

Parties in New York may have limitations periods tolled at least until May 15. However, parties would be wise to exercise caution rather than relying on Executive Orders because:

  1. Courts previously construed such orders narrowly, though the current language differs markedly from orders issued after 9/11 and Hurricane Sandy; and,
  2. Courts may limit or invalidate the orders’ application due to their language or statutory authority.

Parties should explore resolutions out of court, including express tolling agreements, because courts may be over-burdened upon reopening, meaning that relief could be significantly delayed. Alternative resolutions may resort in more efficient and better outcomes.

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Employment Litigation Alert - Back to Work Series >> COVID-19: As Cases Continue to Spread, Will Court Cases Begin to Spread? - Alert - 04/29/2020

As employees return to work, employers must increase precautions they take in connection with their workers’ health and safety.

Companies should closely follow guidance being issued and frequently updated by the CDC, OSHA, and other agencies, to protect themselves from civil liability on COVID-19 claims.

Employers may be protected from some personal injury lawsuits by worker’s compensation insurance and laws. However, employers may not be protected from civil lawsuits where worker’s compensation laws do not cover COVID-19, or employers’ actions or inactions deemed reckless, willful, intentional or otherwise egregious.

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Litigation Alert >> Best Practices for Litigating in the Virtual World - Alert - 04/28/2020

  • Virtual court appearances should be treated with the same approach as in person appearances.
  • Build in a cushion for discovery deadlines to allow for delays related to collecting data remotely.
  • Keep confidentiality and privilege top of mind in litigating virtually. Be cognizant of when the microphone and video are on and use passwords sent in a separate link when producing documents and setting up virtual conferences.
  • Consider conducting mediations virtually and using virtual breakout rooms.
  • Make sure to include language in your contracts that allows for electronic signatures.

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Litigation Alert >> How the COVID-19 Crisis Impacts Contract Obligations - Alert - 04/02/2020

Businesses need to consider if fulfilling their contractual obligations is possible during the COVID-19 crisis. If performance truly is not possible, a party may be excused from performing based on the following legal doctrines:

  • Force Majeure
  • Frustration of purpose

Because access to court systems is limited at this time, parties should negotiate contract performance-related issues on their own. This will likely save company resources in the long-term and can help maintain key business relationships.

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Labor & Employment Alert >> California Legislature Passes Bill Redefining Independent Contractor Test - Alert - 09/17/2019

The new California bill is intended to curb the misclassification of independent contractors, makes it more difficult to establish independent contractor status and significantly impacts gig economy companies, which rely on independent contractors. Other states may soon follow California’s lead: Similar bills are making their way through legislatures in Oregon and Washington, and a coalition of labor groups is pushing similar legislation in New York.

Employers in California should assess, ahead of the legislation’s January 1, 2020 effective date, their classification scheme. Any analysis should take into account whether the classification passes legal muster, the cost of reclassification and the risk of engaging independent contractors. Employers should also consider alternative arrangements as well as arbitration and class action waivers to potentially minimize liability.

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Intellectual Property Litigation Alert >> Was Missguided Misguided? Kim Kardashian West Obtains $2.7 Million Judgment in Right of Publicity and Trademark Suit - Alert - 08/01/2019

A celebrity’s most valuable asset is likely their name and likeness. As the Kardashian case illustrates, many celebrities are being targeted by third parties who use their names and images without their permission when promoting products or services. There are a number of steps that celebrities can take to stop the unauthorized commercial use of their name and likeness, such as submitting website and social media takedown notices, sending cease and desist letters and, of course, filing lawsuits.

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Employment Litigation Alert >> Employers Need to Promptly Raise Plaintiff’s Failure to File Charges with the EEOC - Alert - 07/17/2019

With Fort Bend, the Supreme Court has set limits on an employer’s ability to dismiss a Title VII claim when the employee failed to raise a parallel claim with the EEOC. The Fort Bend decision serves as a warning that employers should promptly conduct a careful review of a Title VII claim raised against them to ensure it was raised in the corresponding EEOC complaint and, if a discrepancy exists, promptly assert the affirmative defense that the complainant failed to raise the claim before the EEOC.

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Intellectual Property Litigation Alert >> Copying Photographs Found Online and the Fair Use Defense - Alert - 07/12/2019

Companies that find photographs, images, or social media posts online and seek to use these works in advertising or another commercial context, without obtaining the copyright owner’s permission, may subject themselves to copyright infringement claims, even if they crop the works before using them. The use of pre-existing works may constitute fair use when used in connection with commentary on or criticism of the works. When a company wants to use a pre-existing work without permission, it should consult with legal counsel to help evaluate whether its contemplated use can be considered fair use.

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Law360: Combating False Celebrity Endorsements Online - Published Article - 06/17/2019

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Employment Litigation Alert >> Employers Risk FMLA Claims for Terminating Employees Whose Unexplained Absences May Be Medically Related - Alert - 04/15/2019

The Villagomez decision highlights the legal risks in automatically firing an “AWOL” employee. Under the FMLA, employers have an obligation to follow up on facts, however scant, suggesting that unexplained absences may be due to medical reasons. HR and supervisors should share what they know about the reasons for employee’s absences, and if any medical issue is revealed, gather more information or risk an FMLA lawsuit.

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Employment Litigation Alert >> Enhancing Enforceability of Restrictive Covenants Against Terminated Employees - Alert - 03/27/2019

Employers seeking to enforce post-employment restrictions against terminated employees will face an uphill battle if they are unable to demonstrate that the employee was terminated with cause. There are two ways for employers to mitigate this situation. First, they should maintain employee performance management systems and contemporaneously document performance issues. Second, they should ensure that separation agreements with terminated employees provide sufficient severance to the employee, with the employee re-affirming in the severance agreement the binding nature of the restrictive covenant.

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Intellectual Property Litigation Alert >> When Does “Copying” a Photograph of a Building Constitute Copyright Infringement?  - Alert - 10/25/2018

Companies that use pre-existing photographs of buildings for reference in advertising or other materials may subject themselves to copyright infringement lawsuits. Even though there is generally no copyright protection for a building itself, there may be protection for a rendering of a building in the form of a photograph or illustration, and the use of that rendering for inspiration to create a new work, without obtaining authorization from the copyright owner, may lead to copyright infringement claims. Whenever a company seeks to use a pre-existing photograph or other rendering of a building or skyline as reference material, or an actual photograph, it should consult with legal counsel to help identify and avoid potential copyright, trademark and related issues.

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Employment Litigation Alert >> Employers May be Required to Accommodate Employees Who Request to Work Part Time Due to a Disability, Even if They had Previously Worked in Full-Time Roles - Alert - 09/06/2018

The fact that less than half of disabled individuals of typical working age report having jobs, despite protective laws like the ADA, means that courts are increasingly sympathetic to the requests of the disabled for accommodations. The Hostettler decision highlights a common problem for employers: namely how do they say "yes" to what other employees will characterize as "special treatment" for one employee, especially if the accom­modation is working from home and part-time, without having the remainder of their workforce becoming resentful or asking for similar treatment. Yet, the ADA, and many state statutes, make clear that the employer's priority, and legal obligation, is to make exceptions to company policies and practices for employees with disabilities, if such an accommodation is reasonable and will allow an otherwise disabled person to be able to do their job. Employers should resist "no" as a default answer to an accommodation request, even if they are otherwise tempted to dismiss a request to work part-time and remotely as out of the question.

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Intellectual Property Litigation Alert >> Street Art, Copyright Infringement, and De Minimis Use - Alert - 09/04/2018

When considering using graffiti or street art as part of a commercial production, including in advertising, social media or other marketing efforts, the same considerations addressed when clearing the use of other copyrighted or trademarked materials should be taken into account. Even though de minimis or fleeting use of graffiti or street art in another work will not give rise to an actionable claim, it is still advisable to seek the advice of counsel to determine whether a de minimis use defense is available.

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Litigation Alert >> New York Appellate Court Enforces Lease Provision Waiving Commercial Tenants’ Right to Seek Yellowstone Injunction, Strengthening Landlords’ Right to Evict - Alert - 06/28/2018

Commercial tenants entering into new leases should review draft agreements carefully for explicit waivers of the right to seek Yellowstone relief and less obvious waivers of that right that are drafted more vaguely, such as provisions that:

  • waive a tenant's right to seek "declaratory" relief,
  • waive a tenant's right to seek "injunctive" relief, or
  • state that the parties "intend that their disputes be adjudicated through summary proceedings."

Any of these or similar provisions will waive an important right New York law has afforded to commercial tenants for decades: the right to dispute a landlord’s assertion of an event of default while maintaining the option to cure that default if upheld.

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Litigation Alert >> New York Courts Reaffirm That They Will Not Consider Extrinsic Evidence When Interpreting Unambiguous Contracts - Alert - 06/25/2018

While parties to a contract may develop an understanding of their agreement based on discussions during contract negotiations, under New York law, a court should not consider evidence of that understanding if the ultimate agreement is unambiguous. As reaffirmed by the recent appellate court decisions, it is, therefore, critical that contracts accurately set forth the parties' agreement as courts are likely to limit their consideration to the "four corners" of the agreement and enforce the agreement according to its clear terms.

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Litigation Alert >> "Dialing It Back?" Federal Courts Weigh in on "Autodialers" After Appeals Court Strikes Down FCC Interpretation of TCPA - Alert - 06/20/2018

In the aftermath of the DC Circuit's ruling striking down the FCC's interpretations of what constitutes an ATDS under the TCPA, ambiguity abounds. While the Herrick ruling represents a very positive development for marketers and their agencies, the Reyes ruling demonstrates that those companies still need to exercise caution in complying with the TCPA. Until the FCC issues further guidance – and likely even after it does so – marketers and agencies must continue to consult counsel to ensure any telemarketing or texting campaigns comply with the TCPA’s requirements.

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Litigation Alert >> New Jersey Supreme Court Rejects No-Harm TCCWNA Claims, Dealing Blow to Consumer Class Actions Under the Act - Alert - 05/16/2018

The New Jersey Supreme Court's recent holding is expected to eliminate no-harm class actions under the TCCWNA. Violations of the statute, unaccompanied by any injury to the consumer, will no longer be sufficient to support a claim. The need for class action plaintiffs to prove that class members have suffered actual injury presents an individualized issue that should make many TCCWNA claims inappropriate for class-wide resolution.

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Intellectual Property Litigation Alert >> Are APIs No Longer Safe To Use When Creating Mobile And Other Software Applications? - Alert - 05/03/2018

Based on the decision of the Court of Appeals, software developers and programmers should understand that there is risk in using any copyrighted code, including API packages and code, without first obtaining authorization from the owner of the API or otherwise adhering strictly to the API terms and conditions. The safest course for software developers and programmers is to ensure that they have a license or are otherwise authorized to use the code in accordance with the rights owner’s terms and conditions, even if that code is being used in a different device or environment.

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Litigation Alert >> Recent Cases Highlight "Digital Assets" As A New Frontier in Estate Planning and Litigation - Alert - 05/01/2018

New York State's EPTL now includes a provision that clarifies how matters involving digital assets are handled in estate administration. The full scope of the Act’s implications has yet to play out, but digital assets will undoubtedly affect estate planning and litigation matters for years to come. While the need to plan for digital assets is clearly important, fiduciaries of estates should also be mindful of those assets in potential estate administration and litigation issues that may arise.

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Commercial Litigation Alert >> Enhancing the Likelihood of Enforcement of a Forum Selection Clause in an Online Contract - Alert - 03/26/2018

Companies that include a forum selection clause in an online contract should make sure that they reasonably communicate the forum selection clause to their customers and vendors. Best practices include: (i) providing on an uncluttered screen a direct hyperlink to the terms and conditions that contain the forum selection clause on an uncluttered screen, where the hyperlink is visible without having to scroll down; (ii) formatting the hyperlink in a clear manner, such as by having the phrase "Terms and Conditions" in blue, underlined text against a bright white background; (iii) setting off the forum selection clause within the terms and conditions, such as with a heading in bold text; and (iv) requiring customers to affirm that they agree to the terms and conditions before they can continue using the website.

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Litigation Alert >> No Harm, No Foul? Individualized Consent Issues Sink TCPA Class Action  - Alert - 01/16/2018

The Northern District of Illinois' practical approach to analyzing whether lack of consent gives rise to actionable harm under the TCPA, and whether this issue can truly be determined on a class-wide basis, may represent a significant victory for businesses that rely heavily on telephone and text interactions with their customers. Companies should nonetheless be sure they are following best practices in both their dialing procedures and their agreements with call centers and other dialing vendors.

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Litigation Alert >> Battling the Real "Fake News": FTC Reaches Multi-Million Dollar Settlement with Internet Marketers for False Celebrity Endorsements - Alert - 11/30/2017

The FTC's settlement with the Defendants allegedly engaged in these deceptive marketing practices serves as a reminder that the parties responsible for online advertising using public figures’ names and images without authorization can be identified and stopped, and that those parties may include the operators of large marketing networks. In other words, the FTC did not just find the parties responsible for the unlawful advertising practices; it also found parties within the United States with assets significant enough to disgorge millions of dollars in deceptively-acquired profits.

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Commercial Litigation Alert >> Appeals Court Enforces Arbitration Clause in Hyperlinked Terms & Conditions - Alert - 11/02/2017

The Second Circuit’s Meyer decision reaffirms the importance of well-crafted terms and conditions for companies interacting with consumers over the Internet and via mobile apps, and that for those terms to be enforceable, access to them must be presented in a manner clear and conspicuous enough for a reasonably prudent user to understand that he or she can access and review the terms and is also agreeing to be bound by them. Best practices include: linking to the terms on the same screen on which consumers enter payment or registration information; placing the link in close proximity to the "continue" or "register" button, visible without the need to scroll down; including an explicit statement that the user is agreeing to the terms by registering or paying; and formatting the link and associated statement in a prominent, high-contrast font, distant from any other text on the screen.



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