November 22 2017

Neutral Solutions: We Help You Connect the Pieces

le-social-media-puzzle-ad

The Neutral Solutions Team at Weintraub Tobin can help you avoid expensive and protracted litigation. We specialize in:

  • Training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.
  • Conducting independent investigations into complaints of misconduct in the workplace.
  • Mediating employment disputes both pre and post litigation

For more information please contact:

Lizbeth “Beth” West 916.558.6082 or lwest@weintraub.com

Vida L.

More
November 16 2017

Would Glue Maker’s Trademark Claim Stick Against Pot Strain

By Scott Hervey

According to cannabis folklore, cannabis cultivators in 2010, Josey Whales and Lone Watie  created a strain of marijuana that was so sticky, Mr. Whales, during a phone call, commented that the plant made his hands “stick to things like Gorilla Glue.”  From that, Whales and Watie came up with a name of their strain – Gorilla Glue#4.   Since that time, the strain has won numerous competitions and has become extremely popular with consumers. 

More
November 15 2017

Call it what you want. Just don’t call it copyright infringement.

By Josiah Prendergast

A demand letter is a formal way of telling someone, “now we got bad blood.”  Recently, a Northern California blogger received a demand letter in which Taylor Swift threatened to sue the blogger.  In so many words, the blogger responded, “I wish you would.”

The Demand Letter was triggered by the blogger’s September article, the Cliffs Notes to which might read something like: “Blogger characterizes T-Swizzle’s lyrics as ‘dog whistles to white supremacy.’  Alt-right is co-opting Taylor’s songs,

More
November 15 2017

Neutral Solutions: Mediation

The Neutral Solutions Team at Weintraub Tobin specializes in Mediating employment disputes both pre and post litigation. Employment disputes are some of the most contentious and aggressively litigated cases in federal and state courts. The employee is adamant that the employer treated him or her unjustly and violated the law, and the employer reasonably believes that it acted fairly and the employee’s claim is without merit. Based on the disruption and negative impact this type of aggressive and protracted litigation can have on the lives and businesses of those involved,

More
November 8 2017

USPTO Finalizes Rule for Privileged Communications in Trials Before the PTAB

By Jo Dale Carothers

The Leahy-Smith America Invents Act (“AIA”) provided for trials before the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) in inter partes reviews, post-grant reviews, the transitional program for covered business method patents, and derivation proceedings.  While patent agents are registered to practice before the USPTO, they are not attorneys.  Therefore, it has been unclear whether attorney-client privilege prevents discovery in PTAB proceedings of communications between these non-attorney agents and their clients. 

More
November 2 2017

Say Cheese: Stock Photos, Non-Exclusivity & Copyright Infringement

By:  James Kachmar

The Ninth Circuit recently addressed an issue as to who may pursue claims for copyright infringement concerning stock photos in the case DRK Photo v. McGraw-Hill Global Education Holdings, LLC, et al. (Sept. 12, 2017).  Apparently there has been a rise in copyright infringement claims involving stock photos and the Ninth Circuit was called upon to determine whether the non-exclusive licensing agent for stock photos had standing to pursue a claim for copyright infringement.

More
October 26 2017

Can Patent Owners Buy Sovereign Immunity?

By Audrey Millemann

The latest issue in the patent world is one no one would have expected – sovereign immunity.

How did this issue arise? Allergan, the company that makes the dry-eye drug Restasis, has employed an aggressive strategy in attempting to protect its $1.5 billion market by selling its Restasis patents to a Native American Tribe.  In September, Allergan sold the patents to the Saint Regis Mohawk Tribe in New York. 

More
October 19 2017

California Governor Signs “New Parent Leave Act”

By Michelle Covington

On October 12, 2017, California Governor Jerry Brown signed Senate Bill 63 (“the New Parent Leave Act”).  Under the new law, employers may not refuse to allow certain employees to take up to 12 weeks of parental leave to bond with a new child.  When the leave is taken, the employer must guarantee the same or comparable position upon the employee’s return.

Background

Existing law prohibits an employer from refusing to allow a female employee disabled by pregnancy,

More
October 19 2017

Allegan’s Restasis Patents Invalidated by a Federal District Court Even After Transfer to Native American Tribe and Sovereign Immunity Claim.

By:  Eric Caligiuri

In Allergan, Inc. v. Teva Pharmaceuticals USA, Inc. et al, Case No. 2:15-cv-1455-WCB (EDTX October 16, 2017 Order), a Federal District Court recently invalidated several patents covering Allergan’s dry-eye drug Restasis.  The ruling is notable because these are the same six patents Allegan just weeks ago transferred to the Saint Regis Mohawk Native American tribe in an effort to shield them from review at the Patent Trial and Appeal Board (“PTAB”). 

More
October 17 2017

State-Wide BAN THE BOX Law No More Criminal Conviction Questions on Employment Applications

By Beth V. West

On October 14, 2017, Governor Brown signed Assembly Bill 1008 (the “Fair Chance Act”).  The new law puts in place some protections for those individuals with criminal backgrounds seeking employment.  The new law will be contained in Section 12952 of the California Government Code.

Background.

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose,

More
October 17 2017

No More Questions About, Or Use Of, Prior Salary Information In Employment

By Beth V. West

On October 12, 2017, Governor Brown signed Assembly Bill 168.  Consistent with some other state laws and local ordinances passed by certain municipalities like San Francisco, the new law prohibits the inquiry and use of prior salary information except in limited situations.  The new law will be contained in Labor Code section 432.3 and becomes effective January 1, 2018.The new law:

  • Prohibits an employer from relying on the salary history information of an applicant for employment as a factor in determining whether to offer an applicant employment or what salary to offer an applicant.
More
October 12 2017

Google May be a Verb, but Verb Use Alone Does Not Constitute Genericness

By Josh H. Escovedo

Just Google it. Can you Google the score? Have you Googled the restaurant’s reviews? These are all common phrases in today’s internet-reliant society, and it’s entirely due to the creation of Google and its widespread success. By all measures, this should be a good thing for Google. Its company’s primary trademark, Google, has become such an integral part of society that it is now ingrained in our everyday vocabulary as a verb,

More
October 5 2017

Federal Circuit Clarifies Venue Requirements for Patent Cases

By Jo Dale Carothers

Until the U.S. Supreme Court’s May 22, 2017 ruling in TC Heartland v. Kraft Foods, the Court of Appeals for the Federal Circuit and the United States district courts had interpreted the patent venue statute, 28 U.S.C. §1400(b), to allow plaintiffs to bring a patent infringement case against a domestic corporation in any district court where there is personal jurisdiction over that corporate defendant. 

More
October 4 2017

Reverse Veil Piercing: A Judgment Against You Can Become a Judgment Against Your Company

By Lukas Clary

It happens all the time.  A hard fought lawsuit results in a satisfying judgment.  Then it comes time to collect and it turns out the judgment is worth no more than the paper it’s written on.  For example, sometimes a party obtains a judgment against a company with little to no assets to satisfy the judgment.  And since, legally speaking, companies exist separate and apart from the individuals who run them,

More
September 28 2017

Wine and Spirits Are not Always Confusingly Similar

 

By Scott Hervey

Brand litigation can be extreme in the consumer products space and even more so for alcoholic beverages (legal cannabis brand owners take note and start stockpiling your war chest).  It’s not uncommon for litigation to arise whenever an alcoholic beverage brand owner believes that another alcoholic beverage brand infringes.  Such was the case for Sazerac Company, the maker of the high quality bourbon BUFFALO TRACE. 

More
September 26 2017

US OSHA Opens Injury Tracking Electronic Portal

By Charles L. Post

The U.S. Occupational Safety and Health Administration (U.S. OSHA) has established a new electronic portal for employers to file web based reports of workplace injuries or illnesses.

Read the full article at HRUSA here: http://blog.hrusa.com/blog/us-osha-opens-injury-tracking-electronic-portal/

More
September 21 2017

Federal Circuit: PTO Can’t Shift Burden of Proof of Patentability to Applicant

By Audrey Millemann

In In re Stepan Co., 2017 U.S. App. LEXIS 16246, decided August 25, 2017 the Federal Circuit Court of Appeals made it very clear that during patent prosecution, the burden of proving patent ability lies with the PTO examiner.

The patent applicant was Stepan Co., who filed a patent application for formulas of an herbicide.  The herbicide was a composition of a glyphosate salt and a surfactant system.  

More
September 19 2017

Taking his talents to the Southern District of New York: Are LeBron James’ tattoos subject to copyright?

By Jessica Rankin Corpuz

With nearly 30% of Americans sporting at least one tattoo (up from 20% just four years ago), tattoos are becoming commonplace.  This is even clearer among younger Americans, with nearly half of Millennials sporting ink.  Today a majority of Americans report that they would feel comfortable seeing a person with visible tattoos in a range of industries and professions.  Per the Harris Poll,

More
September 14 2017

Bridgestone Brands, LLC v. Firestone Public House, LLC: Battle of the Brands

By Josh H. Escovedo

Just over two months ago, Sacramento’s beloved Firestone Public House was sued by multinational conglomerate Bridgestone Brands, LLC for trademark infringement, trademark dilution, and unfair competition based upon Firestone’s use of the FIRESTONE mark. I initially found this dispute to be quite interesting in light of what I appeared to be vastly different groups of consumers being served by the respective entities: tire consumers vis-à-vis food and beverage consumers.

More
September 8 2017

No Privilege Extended to Communications With PR Consultant, But Court Provides Roadmap to Possible Application

By Sherry Bragg

It is not uncommon in this day of social media influence for an attorney to seek out the assistance of a public relations consultant to play a role in connection with a high profile lawsuit. Such media experts can help assess and mitigate risks, alleviate the public’s concern, manage public perception, and create leverage for settlement. The question is whether communications between a public relations consultant, an attorney,

More
September 7 2017

Court Denies Plaintiff’s Motion to Disqualify its Former Counsel as Counsel for Defendant in a Patent Litigation Action After Plaintiff Delayed Filing its Disqualification Motion for Over A Year After Discovering the Conflict.

By:  Eric Caligiuri

In Eolas Technologies Incorporated v. Amazon.com, Inc., 3-17-cv-03022 (CAND August 24, 2017, Order) (Tigar, USDJ) the United States District Court for the Northern District of California recently denied plaintiff Eolas Technologies Incorporated’s (“Eolas”) motion to disqualify its former counsel, Latham and Watkins (“Latham”), as counsel for defendant Amazon.com (“Amazon”) because Eolas delayed filing its disqualification motion for over a year after it learned of the potentially conflicting representation. 

More
September 5 2017

Obama’s Overtime Rule Struck Down By Court

By Michelle Covington

A Texas federal court struck down a rule that would have expanded those eligible for overtime pay.  The Department of Labor’s rule would have required overtime pay to most salaried employees who earn less than $47,476 annually.  This would have been a dramatic increase from the current salary level of $23,660.  The rule was expected to have an extensive effect if implemented, to the tune of more than 4 million workers. 

More
September 1 2017

Prosecuting Online Trolls Part 1: What To Do When Faced With Anonymous Online Postings

By Darrell White

Prosecuting Online Trolls Part 1: What To Do When Faced With Anonymous Online Postings

It happens all too often. You work tirelessly to promote your business by doing good work, delivering good products and services. Then you find an online posting with demonstrably false information about your business. The posting is anonymous, or even better, posted with a common name such as “John Smith.” If you are lucky enough to locate an e-mail address,

More
August 31 2017

ATTENTION EEO-1 EMPLOYERS –YOU DON’T HAVE TO REPORT PAY DATA TO THE EEOC IN MARCH 2018 AFTER ALL

By Beth V. West

On August 29, 2017, the Office of Information and Regulatory Affairs (OIRA) issued a memo to the EEOC advising that the Office of Management and Budget (OMB) is initiating a review and an immediate stay of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. Those  revisions included new requirements for employers with 100 or more employees (and for employers who are federal contractors with 50 or more employees) to provide data on the wages and hours worked by their employees.

More
August 31 2017

Patent Myths Corrected – Part Two

By Audrey Millemann

My last column was the first of two columns discussing some of the most common misconceptions or myths about patents.  Here is the second part, starting with number five on my list.

  1. A Patent Does Not Give the Patent Owner the Right to Practice the Invention.

Inventors and patent owners often assume that a patent gives them rights to practice the patented invention, i.e.,

More
August 29 2017

New Nevada Domestic Violence Leave Law Broader Than FMLA

By Katie Collins

Beginning January 1, 2018, a Nevada employee who has been employed for at least 90 days and who is a victim of an act of domestic violence or whose family member or household member is a victim of an act of domestic violence (provided the employee is not the perpetrator), is entitled to a maximum of 160 hours of leave in one 12-month period.

Domestic violence is defined under Nevada Revised Statutes (NRS) 33.018 as follows:

Domestic violence occurs when a person commits one of the following acts against or upon the person’s spouse or former spouse,

More
August 25 2017

THE SLOW DEMISE OF CALIFORNIA’S SHAM GUARANTY DEFENSE

By Jacob Gonzales

The California Court of Appeal decision in LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067, struck another blow to California’s “sham guaranty” defense – highlighting a recent string of decisions seeking to limit the defense. The sham guaranty defense has long provided guarantors of loans with a defense to lenders looking to obtain a deficiency judgment – often giving a guarantor at least a basis to defeat a lender’s attempt to obtain summary judgment and forcing the case to trial.

More
August 24 2017

California Finally Rolling Out Its Own Cannabis Trademark Laws

 

By Scott Hervey

California was the first state to legalize marijuana for medical use.  In 1996, California approved Proposition 215, the California Compassionate Use Act.  Two decades later, California voters approved  Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA).  Despite the fact that cannabis has been legal in California since 1996, you still can’t get a trademark in California for marijuana, medical or otherwise. 

More
August 17 2017

Patent Myths Corrected – Part One

By Audrey Millemann

Patent law is a complicated area of law governed by a confusing set of statutes and regulations that are interpreted by the United States Patent and Trademark Office (PTO) and the federal courts.  Patents themselves are sometimes almost unintelligible and, if intelligible, may require many hours of reading to understand.  It is no wonder that there are a lot of misconceptions or myths about patents.

This is the first of two columns in which I will discuss a few of the most common aspects of patent law that are misunderstood.

More
August 10 2017

Ninth Circuit Holds that “Reverse Confusion” Need Not Be Pled with Specificity

by:  James Kachmar

A plaintiff seeking to prevail on a trademark infringement claim needs to establish that there is some likelihood of confusion between its mark and that of the defendant.  Generally, a plaintiff establishes that there is “forward” confusion by showing that customers believed they were doing business with plaintiff but because of a confusion in their respective marks, were actually doing business with the defendant.  Sometimes, however,

More
August 9 2017

Attorney’s Fees as Damages for Breach of Contract? A Jury Must Decide

By Lukas Clary

Often times, contracts contain attorney’s fee provisions.  These terms allow the prevailing party in any action to enforce the contract to recover its attorney’s fees.  Under California Code of Civil Procedure section 1717, the prevailing party on these contract actions can simply file a motion and have the court award the fees as costs of suit.  But what happens when a party sues for breach of the contract and the only element of damages the party claims are the attorney’s fees it incurred as a result of the defendant’s breach? 

More
August 2 2017

SUMMER FUN!

By Audrey A. Millemann

Because it’s summertime, I thought we should take a break from “serious” intellectual property articles.  So, instead, here are some patented inventions that you might see this summer.

A baseball with a speedometer seems like a great idea.  Although I don’t know anyone who has one, I’ve seen them in toy catalogs.  What could be more American?  We love baseball (at least many of us do) and we love competition,

More
August 2 2017

New Florida Law Allows Patients To Use More Potent Pot

By: Brendan J. Begley

High times at Florida workplaces may or may not become more prevalent with a new law that allows the medical use of stronger marijuana by a greater number of patients.

The legal use of medical marijuana is not completely new there.  In 2014, Florida legalized the medical use of low-THC cannabis by patients who are terminally ill with less than a year to live.  In November 2016,

More
July 28 2017

First District Court of Appeal strikes small, but meaningful, victory for businesses combatting online libel.

By Josiah Prendergast

Just last week, California’s First District Court of Appeal handed a small, but meaningful, victory to businesses that resort to litigation to defend their reputations against anonymous, online attacks.  In ZL Technologies, Inc. v. Does, the First District held that ZL Technologies (“ZL”) was entitled to discover the identities of persons who posted anonymous reviews of ZL on Glassdoor.com, after ZL made a prima facie showing that its libel c were factually and legally valid. 

More
July 27 2017

Repeated Discovery Failures and Abusive Litigation Tactics Warrant Terminating Sanctions, Treble Damages, Attorney Fees and Permanent Injunction Against Defendant In Patent Litigation Case.

By:  Eric Caligiuri

In TASER International, Inc. v. PhaZZer Electronics, Inc. et al, 6-16-cv-00366 (FLMD July 21, 2017, Order), a Florida District Court took the drastic step of entering a default judgment in favor of Plaintiff Taser, along with an award of compensatory and treble damages, an award of reasonable attorneys’ fees and costs, and injunctive relief because of Defendant Phazzer’s discovery failures and abusive litigation tactics.  According to the Court,

More
July 24 2017

San Francisco Adopts the “Parity in Pay” Ordinance – No More Inquiries About or Disclosures of Prior Salary

By Beth V. West

On July 19, 2017 Mayor Lee signed the Parity in Pay Ordinance.   Below is a brief summary of the Ordinance which will go into effect on July 1, 2018.

  • The Ordinance provides findings from the 2015 United States Census Bureau report that show that in San Francisco women are paid on average 84 cents for every dollar a man makes. Women of color are paid even less.
More
July 21 2017

The First Amendment Protects the Trademark Registrability of THE SLANTS and THE WASHINGTON REDSKINS Irrespective of Political Correctness.

By Josh Escovedo

In 2014, the Washington Redskins lost a battle before the Trademark Trial and Appeal Board (“TTAB”) where the petitioner, a group of Native American activists, sought cancellation of the “Washington Redskins” trademark, which had been used for over 80 years. Immediately after the decision, the Redskins sought recourse through the United States District Court, which is one of two appropriate venues for an appeal from the TTAB. However, the Redskins didn’t have any better luck there as Judge Gerald Bruce Lee affirmed the TTAB’s ruling in 2015,

More
July 20 2017

Amazon Tips its Hand with New Trademark Application

By Josh Escovedo

As you likely know, Amazon is taking the world by storm. Whether it is through its convenient offering of household goods, and pretty much anything else you can imagine, to your door, or through its expansive selection of movies and television shows provided through its Amazon Prime streaming service, Amazon is a major player in multiple industries. Recently, Amazon surprised the general public when it agreed to purchase Whole Foods Market for $13.7 billion and judging from its recently trademark application,

More
July 17 2017

Revised Form I-9 Issued by the USCIS

By Beth V. West

On July 17, 2017, the United States Citizenship and Immigration Service (“USCIS”) released a revised version of the Form I-9, Employment Eligibility Verification. Instructions for how to download Form I-9 are available on the USCIS Form I-9 page. Employers can use this revised version immediately or continue using Form I-9 with a revision date of 11/14/16 N through September 17th.  However, beginning September 18, 2017, employers must use the revised form with a revision date of 07/17/17 N.

More
July 13 2017

Diddy’s @Infringement Instagram Post

By Scott Hervey

In today’s age of rapid fire social media, posting to feed the ever growing hunger of a digitally connected audience has become second nature to celebrities and other influencers.  In fact, the larger the number of followers, the greater the compulsion to constantly connect.  And that’s where the problems can arise.

The facts underlying the claim seemed innocuous enough.  Hip hop celebrity Sean “Diddy” Combs was delivering an inspirational speech to young students at a new charter school he founded in Harlem. 

More
July 12 2017

Employers May Not Have To Share Tips With Employees

Introduction

Imagine this scenario – you have hired a catering company to cater an event for you. The company performs its obligations, providing both the food and catering staff to ensure your attendees are well fed and taken care of. Happy at the conclusion of the event, you pay the company in full, and provide extra payment to the catering company in the form of a tip to demonstrate your appreciation. Who owns that tip – the catering company hired to provide the services,

More
July 7 2017

Personal Jurisdiction Update in Supreme Court’s Bristol-Myers Squibb Co. v. Superior Court

By Darrell P. White

Several weeks ago, the U.S. Supreme Court issued its opinion in Bristol-Myers Squibb Co. v. Superior Court of Cal., No. 16-466, 581 U.S. —, 2017 WL 2621322 (June 19, 2017) (“Bristol-Myers Squibb”). The more than 600 plaintiffs seeking redress for alleged harm suffered from using a pharmaceutical drug, presented the Supreme Court with the following question: could a California state court exercise personal jurisdiction over nonresident plaintiffs joining California plaintiffs?

More
July 6 2017

Offensive Trademarks Are Protected Free Speech Under the First Amendment

By Jo Dale Carothers

Simon Tam is the lead singer of the rock group call “The Slants’, which is composed of Asian-Americans.  Tam applied for federal trademark registration of the band’s name.  While the term “slants” is a derogatory term for persons of Asian descent, Tam adopted the name “to ‘reclaim’ and ‘take ownership’ of stereotypes about people of Asian ethnicity,” thereby hopefully removing the term’s denigrating effect.  Despite the positive intention, the United States Patent and Trademark Office (“USPTO”) denied the trademark application for “The Slants” under a law prohibiting registration of trademarks that may “disparage … or bring … into contemp[t] or disrepute” any “persons,

More
June 29 2017

When is Making a Movie Not an Act of Free Speech?

by:  James Kachmar

I admit that the title of this article may be a bit deceiving.  Making films, like any other production of art, is almost always an act of free speech.  However, the Ninth Circuit was recently faced with a dilemma of determining this issue in connection with an anti-SLAPP motion brought against a screen writer who claimed that the defendants had failed to pay him for using his idea to make the film,

More
June 28 2017

DON’T FORGET…….California’s Transgender Identity and Expression Regulations Go Into Effect July 1, 2017

By Beth V. West

The new regulations that expand existing protections under California’s Fair Employment and Housing Act (FEHA) for transgender individuals and others go into effect July 1, 2017.  As California employers know, FEHA prohibits harassment and discrimination against individuals on the basis of many protected classes, including gender, gender identity, and gender expression.  Below is a brief summary of the highlights of the new regulations.

  • The regulations clearly define and distinguish between “transgender,” “gender expression,” and “gender identity.”  They are not the same.
More
June 28 2017

AN INADEQUATE PRIVILEGE LOG, OR EVEN THE FAILURE TO SERVE A PRIVILEGE LOG, WILL NOT RESULT IN THE WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE OR WORK PRODUCT PROTECTION TIMELY ASSERTED IN DISCOVERY RESPONSES

By: Jacob C. Gonzales

In Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, the California Court of Appeal (Fourth District, Division Three), squarely addressed the question: “May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections?” The answer, “No.” Id.

More
June 27 2017

No Recording Policy Violates The NLRA

By Lukas Clary

It stands to reason that employers may not want employees recording conversations in the workplace.  Recording conversations could discourage the free flow of open ideas.  The recordings could also contain confidential or sensitive information that the employer does not want floating around the digital universe.  In some states, recording workplace conversations may even be illegal if not all parties consent to it.  Mindful of these concerns, employers may wish to enact policies precluding video or audio recording at work. 

More
June 23 2017

USING DEMONSTRATIVES TO EFFECTIVELY COMMUNICATE COMPLEX BUSINESS CASES TO A JURY

By Sherry Bragg

Business attorneys understand that complex business litigation involves complex issues, usually encompassing voluminous amounts of complicated financial data in the form of balance sheets, income statements, and cash flow summaries.  It is certainly possible for jurors who own their own businesses or have accounting backgrounds to quickly synthesize financial information. However, most jurors are unfamiliar with this type of financial information and will find it difficult to comprehend,

More
June 22 2017

Supreme Court Cuts Back Patent Owners’ Post-Sale Rights

By Audrey Millemann

Patent owners can no longer restrict the use of their patented products after the products are sold.  Under the doctrine of patent exhaustion, a patent owner’s rights are “exhausted” once the patent owner sells the product.  In Impression Products v. Lexmark International, Inc., 2017 U.S. LEXIS 3397 (May 30, 2017), the Supreme Court expanded the scope of patent exhaustion, reversing a long-standing rule that a patent owner can control the use of its patented product after the product is sold. 

More
June 15 2017

U.S. Supreme Court Allows Early Notice For Biosimilars

By:  Eric Caligiuri

In SANDOZ INC. v. AMGEN INC. et al., the United States Supreme Court in a unanimous opinion ruled that biosimilar makers can give their required 180-day statutory notice of sales before their products win approval by the United States Food and Drug Administration (“FDA”).  In short, the Court held a biosimilar maker “may provide notice either before or after receiving FDA approval.”  If biosimilar makers had to await FDA approval before giving notice,

More
June 14 2017

Arbitration Agreements Cannot Foreclose a Party’s Right to Seek Public Injunctive Relief under California’s Consumer Protection Laws

By Lukas Clary

The California Supreme Court has struck back in its ongoing battle with the United States Supreme Court as to the enforceability of arbitration agreements in consumer contracts.  On April 7, 2017, in McGill v. Citibank, the California Supreme Court held that a contractual waiver of the right to seek public injunctive relief—i.e., relief that serves primarily to benefit the public at large rather than redress private wrongs—is contrary to public policy and thus unenforceable under California law. 

More
June 13 2017

New Laws Affecting New York City Retail And Fast Food Workers

By: Katie A. Veatch

On May 30, 2017, the Mayor of New York City (“NYC”) signed into law five bills related to workplace reform in the retail and fast food industries. These laws are set to take effect on November 26, 2017.

New Laws Applicable to Retail Industry in NYC

Intro 1387 (On-Call Scheduling), bans the practice of on-call scheduling for retail employees in NYC.

More
June 9 2017

Non-Compete Provisions and Forum Non Conveniens Considerations

By: James Kachmar

Under California law, non-complete provisions are generally unenforceable.  But what happens when the non-compete provision appears in an employment contract that is governed by another state’s law with a forum selection clause limiting any dispute to that particular state?  All California courts in the past have refused to enforce a choice of law provision (absent a forum selection clause) that requires a California court to apply the law of a state that may be more favorable to non-competes on grounds that it violates California’s public policy concerning such restrictions. 

More
June 8 2017

Eagles Ltd. v. Hotel California Baja, LLC: Any Time of Year, You Can Find Infringement Here

By Josh Escovedo

Recently, Eagles Ltd. (the “Eagles”), the entity in control of legendary rock band The Eagles’ business affairs, filed a lawsuit against Hotel California Baja, LLC for trademark infringement. While I’m sure most of us are familiar with the Eagles’ song Hotel California, it may come as a surprise to most trademark aficionados that the Eagles have never registered HOTEL CALIFORNIA with the USPTO. Although this is shocking, and many intellectual property practitioners might even say reckless,

More
June 7 2017

Is Panic Really the Best Choice? One Lawyer’s Approach to Analyzing “Substantially Similar Work” Under the California Fair Pay Act

By Charles L. Post

Since the passage of the California Fair Pay act in late 2015 (effective January 1, 2016) and its recent amendments, many employers and commentators have criticized the statute for imposing a vague and dangerous standard on California employers.

The California Fair Pay Act replaces the former “equal work” standard of the Equal Pay Act with a “substantially similar” standard.   The California Fair Pay Act (Labor Code section 1197.5) states:   “(a) An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work,

More
June 6 2017

Texas Bus Monitor Termination For Incontinence Is Discrimination

By: Shauna N. Correia

In Green v. Dallas County School District, a Texas jury found that a Dallas County School District (the “School District”) violated Texas disability discrimination laws when it fired a bus monitor who lost control of his bladder on a school bus.  The bus monitor, Paul Green, suffered a known disability – congestive heart failure – and had disclosed that he was taking a diuretic drug for his heart condition.

More
June 2 2017

California Supreme Court adds to line of cases narrowly applying the right to recover attorneys’ fees under Civil Code section 1717.

By Josiah M. Prendergast

Despite increasing sophistication amongst contracting parties and evermore common use of attorney fee clauses, the “American Rule” endures.  The American Rule is that each side pays its own attorney fees in litigation, win or lose.  In California, statutory exceptions to the American Rule are limited, leaving private parties to modify the American Rule, if they so desire, through contract.  For those contracting parties, the recent California Supreme Court decision in DisputeSuite.com,

More
June 1 2017

The Jury Is Still Out on What “Registration” Means Under Section 411 of the Copyright Act.

By: Scott Hervey

The Copyright Act provides that “Registration” of a copyright is a precondition to filing suit for copyright infringement.  17 U.S.C. § 411(a).  We are still trying to figure out exactly when registration occurs.

While copyright registration is voluntary, the Copyright Act provides several incentives for a copyright owner to register a copyright, one of which is the right to enforce a copyright in an infringement action:  17 USC 411(a) provides:

[N]o civil action for infringement of the copyright in any United States work shall be instituted until … registration of the copyright claim has been made in accordance with this title.  

More
May 26 2017

Colorado Payroll Information May Become Public Record

By Beth V. West

On April 13, 2017, Governor John Hickenlooper approved Colorado House Bill 17-1021 (“HB 17-1021”) which amends Section 8-1-115 of the Colorado Revised Statutes.  In summary, HB 17-1021 provides that the information an employer provides to the Colorado Department of Labor and Employment (“CDLE”) in connection with complaints and investigations into violations of the State’s wage and hour laws can be treated as a public record and released to the public pursuant to the Colorado Open Records Act,

More
May 24 2017

Government Employees Can’t Hide Behind Their Private Email Accounts: California Supreme Court Expands Public Records Definition to Include Emails Sent on Private Email Accounts

By Jessica Rankin Corpuz

The use of private email servers and communications devices by government officials was a major issue in the 2016 election, from the investigation of Hillary Clinton’s email practices to the hacking of a private email account Mike Pence used for official Indiana state business.  The California Supreme Court has recently entered the fray, holding that government officials must search their private email accounts in connection with public records act requests.

More
May 23 2017

Did the Supreme Court Just Close the Door on Eastern District of Texas Patent Plaintiffs?

By Jo Dale Carothers

For over 25 years, the Court of Appeals for the Federal Circuit and the United States district courts have interpreted the patent venue statute 28 U.S.C. §1400(b) to allow plaintiffs to bring patent infringement cases against a corporation in any district court where there is personal jurisdiction over that corporate defendant.  The U.S. Supreme Court just overturned that interpretation in TC Heartland v. Kraft Foods

More
May 18 2017

Googling Google

By:  James Kachmar

“I googled it …” has become ubiquitous in every day conversation. Many of us refer to “googling” as the act of searching the internet regardless of whether we use the Google search engine to do so.  But has our everyday use of the verb “googling” rendered the Google trademark unprotectable?  “Nope,” said the Ninth Circuit in the recent case of Elliott v. Google, Inc., decided May 16,

More
May 16 2017

Reassessing Contractual Jury Waivers Under Rincon EV Realty LLC v. CP III Rincon Towers, Inc.

By Darrell P. White

Orange County is a hotbed for development and real estate. Lenders work hand-in-hand with real estate professional to make these deals happen. When using out-of-state financing, contractual jury waivers are commonplace. Under such terms, the parties essentially agree that any dispute will not be tried to a jury, but instead, the court (i.e. “bench” trial).  However, a recent decision from the California Court of Appeal may have far reaching implications regarding the enforceability of jury waiver provisions in California courts.

More
May 11 2017

Private-Sector Comp Time – Don’t Count On It!

By Jessica A. Schoendienst

Compensatory time off or “comp time” is paid time off that is provided to employees instead of overtime pay.  Comp time has been used by public employers for decades.  There have been several attempts in the past to legalize comp time for private sector employers.  So far, no changes to the law have been passed.

On May 2, 2017, H.R. 1180, the Working Families Flexibility Act of 2017,

More
May 11 2017

Everything Old is New Again!* Not So!

By Audrey Millemann

*This line is the title of a song written by Peter Allen and Carole Bayer Sager that was performed in Bob Fosse’s movie “All that Jazz.”  The song was a hit, and the phrase has a lot of relevance to everyday life, but the Federal Circuit isn’t buying it.

In RecogniCorp, LLC v. Nintendo Co. (Fed. Cir. 2017) 2017 U.S. App. LEXIS 7528,

More
May 8 2017

Protect Your Business: What You Need to Know About the New Defend Trade Secrets Act

By Sherry Bragg

Businesses at every level – from Fortune 500 companies to solo-inventor enterprises – rely on trade secret protections to safeguard their intellectual property trade secrets. American companies and innovators now have additional protections for their valuable intellectual property assets in the newly enacted federal Defend Trade Secrets Act (DTSA). This legislation represents the most significant trade secret reform legislation in years.

Essentially, the DTSA extends the current Economic Espionage Act of 1996,

More
May 5 2017

Recent NLRB Decisions On Email And Protected Activities

By: Michelle L. Covington

A recent National Labor Relations Board (NLRB) decision affirmed the Board’s position on employer email policies under the National Labor Relations Act (NLRA).   In Purple Communications, Inc. and Communications Workers of America, AFL-CIO the Board held that employees who may use their employer’s email system for work-related communications have the right to send off-the-clock email communications through their work email system that are protected under the NLRA. 

More
May 4 2017

Federal Circuit Holds Non-Public Sales Can Still Satisfy the On-Sale Bar for Patents under the AIA

By:  Eric Caligiuri

In Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the United States Court of Appeals for the Federal Circuit recently ruled that the America Invents Act’s (“AIA”) did not change the meaning of the on-sale bar provision in 35 U.S.C. § 102.   The on-sale bar provision holds that sales of an invention one year prior to the patent filing are prior art even if the sale is made by the patent owner and does not publically disclose the invention. 

More
May 3 2017

California Employers – Revised Wage Orders Posted

By Jessica Schoendienst

The California Department of Industrial Relations (DIR) updated all but Wage Order 14 and 17 recently.  The DIR regulates wages and hours for employees.  The Division of Labor Standards Enforcement (DLSE) enforces the provisions of the wage orders, including the posting requirements.  The Wage Orders are numbered 1 through 17.

The most recent updates were made to reflect the increases in California’s minimum wage.  (To read more on the minimum wage increase,

More
May 1 2017

IF YOU SUE FACEBOOK, WHAT’S THE LIKELIHOOD YOU’LL BE ALLOWED TO DEPOSE MARK ZUCKERBERG?

By Jacob Gonzales

Companies are no strangers to litigation. In California, it is a cost of doing business. Unfortunately, it is not uncommon for litigants to try to gain leverage in a dispute with a corporate party by attempting to depose its high-level executives to harass and embarrass them, and force the company into a quick and aberrant settlement. The strategy employed by a litigant may go like this: (1) put pressure on a company by noticing the deposition of an officer or director,

More
April 27 2017

Lawsuits are the Inevitable Cost of YouTube Success

By Scott Hervey

Whenever there is a report of a YouTube creator being sued for copyright infringement, the response from the creator and the community seems to be one of shock and surprise.  The truth is, successful YouTube content creators should not be surprised when they get sued for copyright infringement.  Any person or company that creates content professionally, whether that’s a television network, a motion picture studio or a YouTuber,

More
April 25 2017

Managing Your Business Under Mandatory Evacuation

By Charles L. Post

Imagine this: Your business lies within a zone that is subject to a mandatory evacuation order from emergency response and law enforcement officials.  Imagine that the evacuation order arises from a fire or imminent flooding.  What do you do?  Shut your business and get out of course.  Most evacuation orders are short lived and the hazardous conditions are realized or not within a short period of time. 

More
April 20 2017

What Do California Wine Grapes and California Marijuana Have in Common?

By Scott Hervey

When a winery wants to tell consumers the geographic source of its wine, it includes on the label the wine’s “appellation of origin.”  An appellation of origin tells the consumer where the wine grapes were grown.  Appellations are either the name of a county or state, or a federally-recognized growing region called American Viticultural Areas (AVAs).  California has 138 AVAs.  The value of an AVA designation is significant;

More
April 18 2017

Federal Court Prohibits Sexual Orientation Discrimination

By: Meagan D. Bainbridge

Introduction

For the first time, a federal appellate court has determined that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Under Title VII, an employer may not take an adverse employment action against an employee on the basis of a protected characteristic, such as race, color, religion, national origin,

More
April 14 2017

Employers May Be Liable For Violence Away From Work

By Daniel C. Zamora

Intentional torts committed by employees are difficult for employers to both anticipate and protect against. When an employee commits a criminal act against another employee or a third party, the law generally considers whether the employer knew or should have known that the employee posed a danger in deciding whether a duty to protect against the harm was owed. However, an employee’s dangerous propensity is often difficult to predict. 

More
April 13 2017

Are the Tides Turning for Motions to Amend Claims in IPR Proceedings?

By Jo Dale Carothers

The Patent Trial and Appeal Board (“PTAB”) has rarely allowed patent owners to replace or modify claims during inter partes review (“IPR”), covered business method review, or post-grant review.  In fact, in April 2016 the PTAB’s Motion to Amend Study reported that only 6 of 118, or about 5%, of such motions to amend claims had been granted.  We have not seen a substantial change since that report,

More
April 12 2017

Requiring Employees to Prove Eligibility to Work in the U.S. Can Lead to Liability

By Brendan J. Begley

As the national controversy continues to swirl around immigration issues, a federal appellate court this week faulted an employer for demanding that an employee provide information to prove “‘legal right to work in the United States … as required by the Immigration Control and Reform Act of 1986.’”  The U.S. Circuit Court of Appeals for the Ninth Circuit (“Ninth Circuit”) ruled in Santillan v. USA Waste of California,

More
April 7 2017

Pennsylvania Employers Can Pay Wages With Payroll Cards

By Jessica Schoendienst

Pennsylvania’s Wage Payment and Collection Law requires employers to pay all wages, other than fringe benefits and wage supplements, due employees on regularly scheduled paydays designated in advance by the employer in cash, bank check, or direct deposit. As of May 4, 2017, Pennsylvania employers will have another option to pay employee wages each pay period.

On November 4, 2016, Governor Tom Wolf signed Senate Bill 1265 which amends the banking code to allow employers to use a payroll debit card on which an employer can load an employee’s wages each pay period. 

More
April 6 2017

The Fabric of Copyright Infringement: Obtaining Summary Judgment on Copying Element

By: James Kachmar

Generally, the issue of copyright infringement presents issues of fact to be decided by a jury.  However, when evidence that a design is so “substantially similar” to a copyrighted design, the trial court can find infringement as a matter of law and grant summary judgment to the copyright owner.  The Ninth Circuit recently approved of a district court doing exactly that in the case: Unicolors, Inc. v.

More
March 30 2017

More Patent Invalidated as Abstract Ideas

By Audrey Millemann

Apple just escaped a $533 million jury verdict by invalidating the plaintiff’s patents on the grounds that the patents cover abstract ideas.

The case is Smartflash, LLC v. Apple Inc., decided by the Federal Circuit Court of Appeals on March 1, 2017.  Smartflash owned three patents for technology that limited Internet access to data (video, audio, text, and software) to users who had paid for access. 

More
March 28 2017

Sexual Orientation Discrimination Not Recognized Under Title VII

By Lukas Clary

Federal law has long prohibited discrimination based on a person’s sex. In recent years, several courts have held that discrimination based on failure to conform to a gender stereotype is a form of prohibited sex-based discrimination. But courts across the country have been more divided about whether those same laws preclude discrimination based on one’s sexual orientation. According to a federal court in Georgia, the answer is no.

More
March 23 2017

U.S. Supreme Court Limits Laches Defense in Patent Cases

By:  Eric Caligiuri

In SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al., the United States Supreme Court held that laches cannot be invoked as a defense against a claim for patent infringement damages brought within U.S.C §286’s 6-year limitations period.  The U.S. Court of Appeals for the Federal Circuit had previously held in a 6-5 en banc decision that laches should apply in patent cases because U.S.C.

More
March 22 2017

Changing Overtime Policy May Constitute Retaliation

By Brendan J. Begley

They say that everything is bigger in Texas.  That now may be true for the risk that an employer’s change to its overtime policies will result in a claim filed by an employee alleging retaliation in violation of the Fair Labor Standards Act (“FLSA”).  That increased risk stems from a ruling by the Texas Court of Appeals for the Fourteenth District in January 2017.  In that case,

More
March 17 2017

Word to the Wise: Commission Paid Employees

By Charles L. Post

For several years, California law has required that whenever an employer hires an employee and “the contemplated method of payment of the employee involves commissions … the contract shall be in writing and shall set forth the method by which the commission shall be computed and paid.

Let me rant a bit. I will say it again. Any written commission agreement must simply and clearly express the terms of the commission.

More
March 16 2017

Is Marilyn Monroe Too Generic to Be Registered as a Trademark?

By:  Josh Escovedo

I’ve written on numerous occasions in the past about celebrities who registered their own names as trademarks with the United States Patent and Trademark Office. Just the other week, I wrote about how UFC superstar Conor McGregor had filed an application to register his name as a trademark, and in that same article, I mentioned that undefeated Floyd “Money” Mayweather also has his name registered with the USPTO.

More
March 14 2017

Push Back On Local Minimum Wage And Paid Sick Leave

By Michelle Covington

Over the past several years, many municipalities have taken labor and employment matters into their own hands, passing local laws requiring a higher minimum wage or paid sick leave beyond that required by the state or federal government. Florida and Pennsylvania are pushing back on these local laws.

On February 12, 2015, Philadelphia instituted an ordinance requiring employers with 10 or more employees to provide 40 hours of paid sick leave in a calendar year.

More
March 13 2017

Trump Withdraws Transgender Bathroom Guidance

By Shauna N. Correia

In May 2016, North Carolina governor Pat McCrory signed into law a bill (HB2) that required transgender people to use restrooms corresponding to their biological sex.  On May 13, 2016, the Obama administration’s Justice Department and the Department of Education responded by sending letters to U.S. public school districts directing them to allow students to use the restrooms (and locker rooms) that matched their gender identity, even if it is different than their gender assigned at birth,

More
March 9 2017

Tavern on the Green Trademark Battle Round #2

By Scott Hervey

The City of New York has reignited the battle over the trademark TAVERN ON THE GREEN. Last month the City of New York filed a lawsuit for trademark infringement against Tavern on the Green International LLC, the successor-in-interest to Tavern on the Green operator, LeRoy Adventures, Inc. LeRoy Adventures operated Tavern on the Green from 1976 until approximately 2009 under a license from New York City.

In 1973 New York City and LeRoy entered into a license agreement for the operation of Tavern on the Green as a “restaurant and cabaret.” The license agreement provided that New York City had various rights over the operation of the facility,

More
March 3 2017

Commissioned Employees Required to Receive Separate Compensation for Rest Breaks

By Jessica Schoendienst

A California appellate court ruled this week in Vaquero v. Stoneledge Furniture, LLC (No. B269657, filed February 28, 2017) that employees paid on commission are entitled to separate compensation for rest breaks.  In a decision that frustrates employers that view the employment relationship through the lens of contract law, the Vaquero Court held that Stoneledge’s commission plan that paid sales associates a percentage of sales or a guaranteed draw in excess of minimum wage against earned commissions failed to properly compensate sales associates for rest breaks and non-productive time.

More
March 2 2017

One Is Not Enough for Patent Infringement Under 35 U.S.C. §271(f)(1)

By Jo Dale Carothers

In Life Technologies v. Promega Corporation, the U.S. Supreme Court addressed whether supplying a single component from the United States of a multicomponent invention assembled abroad constitutes patent infringement under 35 U.S.C. §271(f)(1).    Under §271(f)(1), a party can be liable for patent infringement if it supplies from the United States “all or a substantial portion of the components of a patented invention.”  Interpreting this statute in Promega,

More
February 28 2017

Hugs and Kisses May Not Spur Affection in the Workplace

By Brendan J. Begley

In a decision just two weeks after Valentine’s Day, the Ninth U.S. Circuit Court of Appeals (“Ninth Circuit”) has ruled that hugs and kisses may decrease, rather than increase, feelings of affection in the workplace. Specifically, the Ninth Circuit overturned a lower court decision dismissing a lawsuit filed by a county correctional officer who alleged that the county sheriff had sexually harassed her in violation of federal and California law.

More
February 28 2017

If You Sue Facebook, What's The Likelihood You'll Be Allowed To Depose Mark Zuckerberg?

More
February 27 2017

EEOC Harassment Guidance Receives Much-Needed Update

By Michelle L. Covington

The Equal Employment Opportunity Commission (EEOC) recently reported that between fiscal years 2012 and 2015, private sector charges of harassment increased to account for 30% of all charges of discrimination received by the EEOC.  These numbers indicate that harassment liability and prevention continue to be important.  The EEOC’s most recent guidance on harassment focused primarily on sexual harassment and vicarious employer liability for harassment by supervisors, both published in the 1990’s.

More
February 23 2017

Unauthorized Downloading and Copyright Infringement

By: James Kachmar

Liability for copyright infringement can result when one downloads protected software without the copyright owner’s authorization.  The Ninth Circuit was recently tasked with exploring the scope and reach of copyright protection in such cases in Design Data Corp. v. Unigate Enterprise, Inc.

Design Data is the creator of a computer aided design (CAD) software program SDS/2.  SDS/2 is promoted by Design Data as offering a high quality steel in connection design and drawing production for 3D steel detailing.

More
February 16 2017

Divided Infringement – Expanding Patent Infringement Liability

By Audrey Millemann

In 2015, the Federal Circuit Court of Appeals cast the net of patent infringement liability even more broadly, to cover direct infringement by “divided” (or “joint”) infringement.  Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir. 2015) (“Akamai V”).  In that case, the Federal Circuit established that a defendant can be liable for direct infringement of a method claim even when the defendant does not personally perform all of the steps of the method,

More
February 10 2017

New York Governor Continues To Strengthen Equal Pay Protections

By Vida L. Thomas

On January 9, 2017, New York Governor Andrew Cuomo announced his new “New York Promise” agenda, a sweeping package of reforms that the Governor promises will “advance principles of social justice, affirm New York’s progressive values, and a set a national standard for protections against all forms of discrimination.” As part of that agenda, the Governor signed two executive orders aimed at eliminating the state’s wage gap affecting women and racial and ethnic minorities.

More
February 9 2017

Northern District of California Revises Local Patent Rules

By:  Eric Caligiuri

On January 17, 2017, the United States District Court for the Northern District of California issued revisions to its Local Patent Rules requiring early disclosure of damages-related discovery and contentions. The revised rules are effective immediately in all patent cases pending in the Northern District.  Local Patent Rules are rules that apply to all civil actions filed in or transferred to the specific District Court which allege infringement of a utility patent or which seek a declaratory judgment that a utility patent is not infringed,

More
February 2 2017

McGregor Files for Trademark for “Conor McGregor” and “The Notorious”

By Josh Escovedo

Whether you like him or not, Conor McGregor’s business savvy cannot be disputed. The UFC superstar, in just over year, has become a household name known to people who may not even watch the sport. His quick rise to superstardom is no coincidence. He knows how to market himself and he knows how to sell the events he’s involved in.

In my opinion, McGregor single handedly crippled the UFC’s landmark UFC 200 event when he was removed from the fight card as the result of a contract dispute.

More
February 1 2017

Washington Raises Minimum Wage And Provides Paid Sick Leave

By Beth V. West

In November 2016, Washington voters approved Initiative Measure No. 1433 (“IM 1433”) which provides for an incremental increase to the state minimum wage as of January 1, 2017 and also provides for paid sick leave benefits beginning January 1, 2018.  The stated intent behind IM 1443 is expressed in the initiative as follows:

BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON: …

It is the intent of the people to establish fair labor standards and protect the rights of workers by increasing the hourly minimum wage to $11.00 (2017),

More
January 25 2017

Star Trek Fan Film Not Fair Use

By Scott Hervey

Paramount and Star Trek Fan Film Producers Settle

The copyright infringement lawsuit between Star Trek fan film producer, Axanar Productions, and Paramount Pictures came to an end less than two weeks before trial.  The settlement was undoubtedly triggered by the court’s early January ruling that the fan fiction film, Prelude to Axanar, is not protected by fair use.

Prelude to Axanar is a documentary style short that tells the story of Garth of Izar,

More
January 23 2017

Increases To New York Minimum Wage And Salary Thresholds

By Meagan D. Bainbridge

While the Department of Labor may have stayed any national increases to the minimum exemption salary thresholds for the time being, New York employers have not been granted the same reprieve. Effective December 31, 2016, the New York Department of Labor announced incremental increases to its minimum wage laws. With the increased minimum wages, increases were also made to the corresponding salary thresholds applicable to the executive and administrative exemptions to New York’s overtime laws.

More
January 19 2017

Federal Circuit Requires Standing to Appeal PTAB’s Final Decisions

By Jo Dale Carothers

Although arguably foreshadowed, some may be surprised to learn that a party with the right to challenge the validity of a patent at the United States Patent and Trademark Office (“USPTO”) may not have the right to appeal an unfavorable decision.  In Phigenix v. ImmunoGen, the Federal Circuit clarified that while there is no standing requirement to challenge a patent at the USPTO via an inter partes review (“IPR”),

More
January 18 2017

DON’T THROW OUT YOUR CLASS-ACTION WAIVERS JUST YET

By Brendan J. Begley

The United States Supreme Court decided last week to resolve a split in the lower courts as to whether the National Labor Relations Act (“Act”) preempts class-action waiver clauses in arbitration agreements between employers and their employees. This is an important development, as the use of such waivers in arbitration agreements (if permissible) can drastically reduce an employer’s exposure to costly class actions alleging overtime violations, missed meal-and-rest periods,

More
January 17 2017

Emotional Distress Damages Allowed Under FLSA

By Lukas Clary

Count the Fifth Circuit among the latest to allow emotional distress damages to employees who successfully sue for retaliation under the Fair Labor Standards Act.  In a December 19, 2016 opinion, the Fifth Circuit held that the district court should have allowed the jury to receive an instruction on emotional distress damages when it was considering an employee’s FLSA retaliation claim.  In the same opinion, however, the Fifth Circuit did clarify that only employees can bring claims under the FLSA.

More
January 12 2017

COVERED BUSINESS METHODS PATENTS -- NOT SO BROAD!

By Patent Attorney Audrey A. Millemann

The Federal Circuit Court of Appeals has reminded the Patent Trial and Appeal Board of the U.S. Patent and Trademark Office in no uncertain terms that covered business method review has limits.  In Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 2016 U.S. App. LEXIS 20764 (November 21, 2016), the court held that the PTAB had improperly instituted covered business method (“CBM”) review of Unwired’s patent. 

More
January 9 2017

New Year, New Laws

By Shauna N. Correia

Happy New Year!   The new year frequently marks new changes in the law, and this year is no exception.  There are several important changes that went into effect on January 1st.  Here are some of the major changes that went into effect on January 1, 2017:

  • Minimum Wage Change: On January 1st, for employers with 26 or more employees, the California minimum wage will increase to $10.50/hour.   
More
January 5 2017

“It’s In The Game” - Proof Issues In Software Copyright Infringement Cases

By James Kachmar

A recent Ninth Circuit decision in Antonick v. Electronic Arts, Inc. (filed Nov. 22, 2016), shows some of the proof issues that a plaintiff may encounter in prosecuting claims for copyright infringement in connection with software.  A jury found in favor of plaintiff’s claims of infringement; however, the trial court granted the defendant’s motion for judgment as a matter of law because plaintiff had not offered the “source code” for the software games at issue into evidence during the trial.

More
December 29 2016

Law Firm Survives Disqualification Motion in Florida Patent Infringement Lawsuit

By:  Eric Caligiuri

In Lanard Toys Limited v. Toys “R” Us, Inc. et al, 3-15-cv-00849 (FLMD December 16, 2016, Order) (Barksdale, MJ), a patent infringement matter in Florida District Court, the court denied defendants’ motion to disqualify plaintiff’s new counsel for simultaneously representing defendant in an unrelated case.  Four months after lawyers with Gordon & Rees Scully Mansukhani LLP (“Gordon & Rees”) began representation of Lanard Toys Limited (“Lanard”) against Toys “R” Us-Delaware,

More
December 22 2016

From Rogue One to Forces of Destiny: A Star Wars Intellectual Property Story

By Josh Escovedo

With last weekend’s release of Rogue One: A Star Wars Story, Star Wars is once again living and thriving. Rogue One opened with a most impressive $155 million opening in North America, and $290 million worldwide, making it the 12th largest opening in United States History. Now, this isn’t really related to intellectual property, but in light of this opening,  we thought it would be appropriate to provide an article dealing with Star Wars intellectual property.

More
December 19 2016

Things You Hope You Will Never Need to Know: Liability Arising from Serious Workplace Injury

By Charles L. Post

Liability arising from serious workplace injury can be divided into four general categories: (1) worker’s compensation; (2) administrative agency (OSHA); (3) criminal liability; and (4) other civil liabilities.

  1. Worker’s Compensation

    Worker’s compensation is, for the most part, a strict liability system -any bona fide workplace injury, regardless of cause – is covered.

The worker’s compensation system provides medical treatment,

More
December 16 2016

Holiday Horror Series: Part 4 - HO, HO, HO! AND FA-LA-LA-LA-LA! MORE CHRISTMAS PATENTS

By Audrey A. Millemann

The last time I checked (which was a couple of years ago), I found over 900 U.S. patents in the U.S. Patent and Trademark Office’s database that had the word “Christmas” in the title.  Every year at this time, I look at a few of the most interesting ones.

Here’s one I really like:  U.S. patent no. 5,523,741 for a “Santa Claus Detector.”  This patent covers a Christmas stocking that contains a light bulb or LED,

More
December 15 2016

Phasers Set to Stun - Star Trek and Fan Film Producers Trade Copyright Shots

By Scott Hervey

Fan films and fan fiction ordinarily don’t end up being the subject of a federal court lawsuit.  Most fan fiction are creative expressions reflecting adoration of a series, film or character and the majority of copyright owners take a permissive view of fan fiction.  However, Paramount Pictures, the owner of the Star Trek franchise, which in the past has not taken action against other fan fiction projects, is opposing the production of a full length film,

More
December 12 2016

Arizona’s New Independent Contractor Declaration Law

By Lizbeth (“Beth”) V. West

On August 6, 2016, the Arizona State Legislature enacted the “Declaration of Independent Business Status” law (“DIBS”). The DIBS added Chapter 10 to Title 23 of the Arizona Revised Statutes (Arizona’s “Labor” statute). In short, DIBS allows certain Arizona companies (referred to in the statute as an “employing unit”) to obtain a declaration from those individuals they deem “independent contractors” (rather than employees) so that a rebuttable presumption exists that the relationship is in fact one of independence.

More
December 12 2016

Top Reasons to Mediate Employment Disputes

By Beth V. West

As an employment attorney and mediator, I believe mediation is a good alternative to protracted employment litigation.  Below are the top reasons why.

1. Mediation is a Voluntary Process.

Unlike litigation in which federal and state laws and court rules mandate the process (and often the outcome), mediation is a voluntary process. Thus, the parties choose to freely participate and are in control of – if and how – their dispute will be resolved.

More
December 9 2016

Holiday Horror Series: Part 3 – Holiday Parties: An HR Nightmare!

By Melissa M. Whitehead

It’s that magical time of year! Time for hot cocoa, warm fires, glad tidings – and office holiday parties! Office holiday parties are a time for co-workers to relax and for employers to show appreciation to employees, all of which builds office morale. Of course, office holiday parties also come with an extra serving of risk, especially when the employees get a little too, ahem, relaxed. In fact,

More
December 9 2016

Now Available! Weintraub Tobin’s 2017 Labor and Employment Seminar and Training Schedule

Weintraub Tobin’s 2016 Labor and Employment Seminar and Training schedule is now available. Click here for a copy of the schedule.

2017 Seminar Series Logo

If you have any questions on any of our seminars or would like to inquire on private, custom-tailored training, please contact:

Ramona Carrillo
400 Capitol Mall, 11th Fl.
Sacramento, CA 95814
916.558.6046
rcarrillo@weintraub.com

More
December 8 2016

Two Key Things You Need to Know About the 2016 Federal Rule Changes

By Jo Dale Carothers

On December 1, 2016, amendments to the Federal Rules of Civil Procedure (“FRCP”) and Federal Rules of Appellate Procedure (FRAP) took effect.  While at first glance, the changes may not seem dramatic, but changes such as shortening the time to respond and cutting word counts for briefs have a direct impact on our practices.  For example, this year’s changes include the following:

  1. Eliminating the 3-day rule;
More
December 2 2016

Holiday Horror Series: Part 2- Hectic Holiday Rollovers

By Irina Rospotnyuk

With the holidays upon us, we all can relate to how easy it is to mistakenly overlook important things amidst the cheery holiday hustle and bustle: leaving the Christmas ham in the oven a few hours too long, forgetting to pick up your in-laws from the airport, or failing to timely rollover your individual retirement account (IRA) within 60 days of distribution.

While it may be difficult to salvage Christmas dinner and the relationship with your in-laws,

More
December 1 2016

White House Calls for Restrictions to Curb Non-Compete Agreements

By Charles L. Post

The White House has issued new information about its policy position on non-competes, including a call to action from President Obama to state and federal lawmakers to curb and limit non-compete agreements. To read the Fact Sheet, please click here.

More
November 29 2016

EEOC Issues Guidance on National Origin Discrimination

By Beth V. West

Perhaps because of the unfortunate social tensions arising after the U.S. Presidential election which include some inappropriate threats against immigrants and people of color, the EEOC issued its Enforcement Guidance on National Origin Discrimination last week.  The Enforcement Guidance replaces the EEOC Compliance Manual, Volume II, Section 13: National Origin Discrimination (2002).

National origin discrimination is prohibited under Title VII of the Civil Rights Act of 1964 (Title VII) which applies to employers with 15 or more employees,

More
November 28 2016

Texas Federal Court Permanently Blocks Persuader Rule

By Daniel C. Kim

As previously reported here, earlier this year a federal district court in Texas issued a preliminary injunction preventing the Department of Labor (“DOL”) from enforcing the new Persuader Rule, which was to go into effect as of July 1, 2016. Last week, the court issued a ruling converting its preliminary injunction into a permanent one, which now imposes a nationwide ban on implementation of the new rule.

More
November 23 2016

Holiday Horror Series: Part 1- Could You Patent Christmas?!

By Audrey A. Millemann

The holidays are upon us.  Given that everything seems to be protected by intellectual property rights, could someone protect Christmas?

The most likely candidate to try to patent Christmas would be Santa Claus.  But (assuming all other issues are addressed), could Santa Claus really patent Christmas? Assuming that Santa Claus invented Christmas, then perhaps he could! U.S. patent law provides patent protection for pretty much everything.

More
November 23 2016

Employers, Give Thanks! Texas Court Blocks New Overtime Rule

By Jessica Schoendienst

Thanksgiving comes two days early for employers across the country who anticipated the new Department of Labor (“DOL”) overtime Final Rule creating significant pre-holiday expenses.  For those employers, who have been living in denial or under a rock for the last six months, the DOL Final Rule increased the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $921 per week ($47,892 annually).  Although California exempt employees expected a slightly smaller increase,

More
November 23 2016

Supreme Court May Cut Back Laches in Patent Infringement Cases

By Audrey Millemann

The United States Supreme Court is considering whether the doctrine of laches will bar a patent infringement claim filed within the Patent Act’s six-year damage limitations period set forth in 35 U.S.C. §286.  The case before the Court is SCA Hygiene Products AB v. First Quality Baby Products LLC, 767 F.3d 1339 (Fed. Cir. 2014).

SCA owned a patent for adult incontinence products. 

More
November 17 2016

New Marijuana Laws And The Workplace

By: Melissa M. Whitehead

Last week, voters in seven states passed new laws relating to marijuana use, both recreational and medical, which has left many employers wondering what this means to them. Can employers still enforce “zero tolerance” drug use policies? Do they have to allow employees to use marijuana in the workplace or during work hours, if they have a medical prescription? Some, but not all, state marijuana laws include specific provisions guiding employers in their handling of these issues.

More
November 17 2016

Federal Circuit Takes A Common Law Approach to “Abstract Idea” Determinations in Alice Cases

By:  Eric Caligiuri

In Amdocs (Israel) Ltd. v. Openet Telecom Inc. et al., the U.S. Court of Appeals for the Federal Circuit recently upheld four software patents against a patent-eligibility challenge, finding that the patents do not claim an “abstract idea.”  The patent challenge was under the frame work set out by the U.S. Supreme Court in its 2014 decision Alice Corp. v. CLS Bank

More
November 16 2016

Homeland Security Issues New I-9 Form

On November 14, 2016, The Department of Homeland Security (through USICS) released a revised version of Form I-9, Employment Eligibility Verification. Employers may continue using Form I-9 (with a revision date of 03/08/2013) through January 21, 2017.  By January 22, 2017, employers must use the revised form. Employers should continue to follow existing storage and retentions rules for all of their previously completed Forms I-9. Read the USCIS News Release,

More
November 14 2016

7th Circuit To Revisit Title VII Sexual Orientation Discrimination Ruling

By Vida L. Thomas

On October 11, 2016, the U.S. Seventh Circuit Court of Appeals granted en banc (by the full court) review in Hively v. Ivy Tech Community College. This rare move means that the entire Seventh Circuit court will reconsider its previous decision, which was originally issued on July 28, 2016.

Kimberly Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000.  

More
November 9 2016

Branding Buds - Still Illegal Under Federal Law

By Scott Hervey

If voters in California  approve Proposition 64 which would legalize the possession and use of marijuana for recreational purposes, it is without question that the sunshine state will see a huge increase in the number of businesses within the cannabis industry. According to a November 7, 2016 Forbes article, the passage of Proposition 64 could add $8.38 billion in annual sales to an already robust medical market worth an estimated $2.83 billion. 

More
November 8 2016

California’s New Law Restricts Choice of Law and Forum Selection Provisions in Employment Agreements

By Beth V. West

On September 25, 2016, Governor Brown approved a very short but powerful piece of legislation for California employees who work for employers who are based outside of California and wish to have another state’s laws govern the employment relationship. Senate Bill 1241 adds Section 925 to the California Labor Code and states expressly that after January 1, 2017, an employer is limited in the use of forum selection and choice of law provisions in employment contracts with California employees.

More
November 8 2016

California Labor Commissioner’s Opinion on Calculating Paid Sick Leave for Certain Employees

By Beth V. West

On October 11, 2016, the California Department of Industrial Relations (“Labor Commissioner”) issued an opinion letter clarifying the method of calculation for paid sick leave under Labor Code section 246 (the “Healthy Workplaces, Healthy Families Act of 2014”) for employees paid by commissions and for exempt employees who also receive an annual bonus.  Here is what the Labor Commissioner said:

  1. Commissioned Employees.

The amount of paid sick leave (PSL) due to an employee who is paid almost entirely by commissions may be calculated using either method available under Labor Code section 246(k)(1) or (2),

More
November 4 2016

Disparate Impact Does Not Protect Job Applicants

By Daniel C. Zamora

On October 5, 2016, the Eleventh Circuit held in Villarreal v. R.J. Reynolds Tobacco Co., that an unsuccessful job applicant cannot sue a prospective employer under the Age Discrimination in Employment Act (ADEA) for a disparate impact claim.  In so holding, the Eleventh Circuit reverses its November 30, 2015 decision holding the opposite.

The ADEA generally protects employees aged 40 and older from discrimination in employment on the basis of their age. 

More
November 4 2016

Unpaid Work Time Is Not Offset By Voluntary Payment

By: Charles L. Post

Almost all employers are business people. They are used to credits and debits in handling and accounting for commercial accounts,  they are used to the application of credit in one transaction to make up for a shortfall in another.  A customer over pays for a delivery in March but under pays by the same amount for a delivery in April. Most businesses are satisfied to have the debit in one month offset the credit in another. 

More
November 1 2016

Weintraub Tobin's L&E and IP Blogs recognized as "Top 100 Legal Blogs" By Feedspot Blog Reader

Weintraub Tobin’s Labor & Employment and Intellectual Property Blogs have both been recognized as a “Top 100 Legal Blogs Every Lawyer and Law Student Must Follow” by Feedspot Blog Reader! Feedspot takes into consideration 1,000’s of Law blogs from across the United States and Canada and uses search and social metrics to rank them. Congratulations to all our wonderful attorneys for providing fresh interesting content!

top-100-legal-blog

To view the full list,

More
November 1 2016

New DOL Overtime Rules And The Fluctuating Workweek

By Meagan D. Bainbridge

Unless you have been living under a rock for the last few months, you are undoubtedly aware that December 1, 2016 marks the day that the U.S. Department of Labor’s (“DOL”) new overtime rules become effective. The new minimum salary level for the executive, administrative, and professional employee exemptions under the Fair Labor Standards Act (“FLSA”) will be $913 per week, or $47,476 per year, which more than doubles the current minimum salary levels.

More
October 28 2016

“Convincing Mosaic” Not Required In 7th Circuit

By James Kachmar

Since its 1994, decision in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994), the Seventh Circuit has instructed the district courts within its boundaries (including those in Illinois) to look for evidence that creates “a convincing mosaic of discrimination” in considering summary judgment motions in employment discrimination cases.  After more than a decade of inconsistencies and criticisms of this approach, the Seventh Circuit has now abandoned this approach with its decision in the case Ortiz v.

More
October 27 2016

Can You Appeal the PTAB’s Decision to Institute Review of Patent Claims on Grounds Not Raised in an IPR, PGR, or CBM Petition?

By Jo Dale Carothers

The America Invents Act provided several procedures for challenging the validity of patent claims, including inter partes review (“IPR”), post-grant review (“PGR”) and covered business method patent challenges (“CBM”).  An IPR, PGR, or CBM challenge begins with a petition filed by the challenging party that identifies each claim challenged and the grounds for each challenge.   Based on the petition and the patent owner’s optional preliminary response,

More
October 20 2016

More Pitfalls For Misclassifying Employees | Weintraub Tobin

By Brendan J. Begley

The National Labor Relations Board (“Board”) recently created another potential pitfall for employers who misclassify employees as independent contractors.  Most employers know that, if they misclassify an employee as an independent contractor, they may be subjected to fines, penalties and other types of liability.  Such employers also can be sued by the misclassified employee and potentially liable for unpaid overtime wages (among other things).  Additionally, taxing authorities may seek from the employer withholdings that should have been,

More
October 20 2016

Locksmith Locked Out By Communications Decency Act

By James Kachmar

The Communications Decency Act (“CDA”) provides broad immunity for “providers of interactive computer services.”  In essence, if an internet service provider falls within certain parameters, it is entitled to immunity against certain claims of liability brought under state law.  Last month, the Ninth Circuit again considered the breadth of such immunity in the case, Kimzey v. Yelp!.

As many readers may know, Yelp is a website that allows customers to “rate” their experience with a particular store,

More
October 14 2016

States And Congress Challenge New Overtime Rules

By Lukas Clary

As we continue marching toward D-day on the Department of Labor’s new overtime rules kicking in, the rules are facing last minute challenges from all angles.  First, states and private businesses pushed back.  In late September, 21 states jointly filed a lawsuit in the Eastern District of Texas asking that the court block the DOL from implementing the rules.  The same day, a group of over 50 businesses jointly filed a similar lawsuit of their own in the same court. 

More
October 13 2016

Website Listing of Tequila Client Work Gets PR Firm a Trademark Shot

By Scott Hervey

Can the owner of renowned tequila brand Patrón prevent a former marketing and PR firm from listing it as a client on its website and discussing the services it provided?  Patrón believes it can and has sued its former marketing firm, The Reindeer Group, for trademark infringement in Federal court in Texas.

In 2009 Patrón engaged Reindeer to provide advertising agency services.  Patrón claims that under the terms of Reindeer’s engagement,

More
October 6 2016

Federal Circuit Rules the Patent Trial and Appeal Board Can Consider New Evidence During AIA Review Trial

By Eric Caligiuri

On September 26, 2016, the U.S. Court of Appeals for the Federal Circuit declined to review in a unanimous en banc decision a panel Federal Circuit decision affirming that the Patent Trial and Appeal Board (the “Board”) at the Patent and Trademark Office (“USPTO”) could hear new evidence during a trial, evidence that was not cited by the Board in its decision to institute review under the America Invents Act (“AIA”). 

More
October 5 2016

University Student Assistants Are Employees Under NLRA

By: Shauna N. Correia

On August 23, 2016, the National Labor Relations Board (NLRB) issued a decision in The Trustees of Columbia University in the City of New York and Graduate Workers of Columbia-GWC, UAW.  The NLRB decided that graduate and undergraduate student assistants are common law “employees” within the meaning of the National Labor Relations Act (NLRA).  The NLRB has flip-flopped on this issue several times starting in 1974 (The Leland Stanford Junior University (214 NRLB 621) which first held student workers should be excluded from the statutory definition of “employees”,

More
October 3 2016

Ninth Circuit Weighs In On Class Action Waivers

By Jessica A. Schoendienst

A new decision from the U.S. Court of Appeals for the Ninth Circuit continues to leave employers uncertain as to the enforceability of class action waivers in arbitration agreements.  The Seventh and Ninth Circuits are on one side of the issue, and the Second, Fifth, Eighth, and Eleventh Circuits on the other.  The Seventh and Ninth Circuits are following the National Labor Relations Board’s (NLRB) position that class action waivers infringe on an individual’s rights under the National Labor Relations Act (NLRA). 

More
September 29 2016

Luxo Shuts the Lights Out on Disney’s and Pixar’s Merchandising of Luxo Jr.

By Josh Escovedo

It is no secret; the Disney Corporation is a marketing and merchandising powerhouse. It has achieved that reputation by capitalizing on almost every marketing and merchandising opportunity that comes its way. If you have kids, the odds are you have been subjected to the Disney Corporation’s influence on more than one occasion. In fact, even if you do not have children, I’m willing to bet, at some point,

More
September 27 2016

Illinois’ “Child Bereavement Leave Act”

By: Lizbeth V. West

On July 29, 2016, the Illinois General Assembly adopted SB 2613 – the Child Bereavement Leave Act (“Act”) which provides eligible employees with the right to take bereavement leave for the death of a child. The law went into effect immediately.

Covered Employers.  The Act defines covered employers the same way the federal Family and Medical Leave Act (FMLA) defines employers.  Therefore, a covered employer is one that is engaged in commerce or any industry affecting commerce,

More
September 26 2016

NLRB Revises Back Pay Formula

By: Daniel C. Kim

In a 3-1 ruling, the National Labor Relations Board (“Board”) recently revised its back pay formula and radically departed from its traditional remedy for compensating employees who have been unlawfully terminated. The Board’s ruling now supports employees’ rights to recover search-for-work and interim employment expenses, regardless of whether the employees have interim earnings and regardless of the amount in question.

The case involved King Soopers,

More
September 22 2016

Animation Software Patent Survives Alice Scrutiny

By Audrey A. Millemann

The application of the Supreme Court’s decision in Alice Corp. v. CLS Bank International, 134 S. Ct. 2347. (2014) has made it almost impossible to patent software.  The United States Patent and Trademark Office is increasingly rejecting patent applications for software under the Alice test on the grounds that the software is an abstract idea, and the district courts are invalidating software patents on the same grounds. 

More
September 20 2016

Nevada Employers: Your Non-Compete May Be Invalid

By: Melissa M. Whitehead

The Nevada Supreme Court recently issued a ruling that should have all Nevada employers asking an attorney to review the non-compete clauses they require their employees to sign. In Golden Road Motor Inn Inc. d/b/a Atlantis Casino Resort Spa v. Islam, 132 Nev.Adv.Op. 49 (July 21, 2016), the Nevada Supreme Court ruled a non-compete clause was unenforceable and, more importantly, the entire agreement was therefore wholly unenforceable.

More
September 15 2016

Is the Technology for Self-Driving Cars Patent-Eligible?

By: Jo Dale Carothers

It sounds like a silly question, doesn’t it?  After all, self-driving cars represent innovative progress in technology, and patents are intended “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”  U.S. Constitution, Article I, Section 8, Clause 8.

But not so fast — courts have found that many software-based inventions for automating known techniques are patent ineligible under 35 U.S.C.

More
September 14 2016

Non-Competes May Be Assigned To Successor Employers

By Meagan D. Bainbridge

It is a situation that arises often. Company A sells its assets to Company B. After the sale, some employees stay with Company B, and others leave. What happens to the agreements the departing employees signed with Company A? Does Company B get to enforce them? In Symphony Diagnostic Services No 1 Inc. d/b/a MobilexUSA v. Greenbaum, the Eighth Circuit Court of Appeals determined that non-competes agreements may be assigned to the successor company where: (1) the agreement expressly permits assignment;

More
September 13 2016

PAGA Amendments Not the Solution Employers Need

By: Jessica Shoendeist

California employers hoped for significant changes following Governor Brown’s budget proposal that called for the Labor and Workforce Development Agency (LWDA) to have more oversight of claims made under the Private Attorneys General Act of 2004 (PAGA).   The budget proposal noted that the departments tasked with investigation and enforcement of the Labor Code has never “had the staffing and resources to effectively review notices, or choose cases for further investigation.”  This is especially true given that the notices are currently being reviewed by a single employee.

More
September 8 2016

How BREXIT Will Affect Intellectual Property

By: Audrey A. Millemann

As everyone knows, in June, the United Kingdom passed the BREXIT referendum (driven by British voters), voting to exit the European Union.  What affect does BREXIT have on intellectual property rights in the United Kingdom and the European Union?  There is a two-year process of negotiation between the UK and the EU, provided for by law, to determine the specifics of the exit.  Until that process is completed,

More
September 7 2016

Beware – Reporting Wage & Hour Violations Just Got Easier

By: Beth V. West

The California Labor Commissioner Launches New On-Line Reporting System

On August 31st, the Department of Industrial Relations (Labor Commissioner) launched an online system allowing anyone to report a business’ alleged labor law violations. According to the Labor Commissioner’s Press Release, the new online reporting system is simple to use and enables the Labor Commissioner to receive real time leads on businesses that are breaking labor laws so that it’s Bureau of Field Enforcement can investigate and take enforcement action.The Report of Labor Law Violations (“Report”) can be completed and submitted on-line or it can be printed out for completion and either mailed in or hand-delivered to the Labor Commissioner’s Office.

More
September 2 2016

Georgia Protects Small Businesses From Joint Employer Liability

By: Beth V. West

On May 3, 2016 the Governor of Georgia signed Senate Bill (SB) 277 to amend Chapter 1 of Title 34 of the Official Code of Georgia Annotated.  SB 277 is a very brief and succinct bill that adds the following Section 34-1-9 to Title 34:

Notwithstanding any order issued by the federal government or any agreement entered into with the federal government by a franchisor or a franchisee,

More
September 1 2016

NO ICE, PLEASE!

By Audrey Millemann

California’s unfair competition and consumer protection laws protect consumers from false representations about products or services.  These laws include the Unfair Competition Law (Business and Professions Code §17200, et seq.), the False Advertising Law (Business and Professions Code §17500, et seq.), and the Consumer Legal Remedies Act (Civil Code §1750).  Lawsuits for violation of the consumer protection laws are often brought as class actions on behalf of the general public. 

More
August 31 2016

The EEOC Is At It Again – New Enforcement Guidance On Retaliation Issued On August 29, 2016

By: Beth V. West

On August 29, 2016, the EEOC issued new Enforcement Guidance on Retaliation which replaces its 1998 Compliance Manual section on retaliation. The Guidance also addresses the separate “interference” provision under the Americans with Disabilities Act (ADA), which prohibits coercion, threats, or other acts that interfere with the exercise of ADA rights.  According to the EEOC, retaliation is asserted in nearly 45 percent of all charges filed with the EEOC and is the most frequently alleged basis of discrimination. 

More
August 25 2016

Federal Circuit Holds the PTAB Must Apply Narrower Phillips Claim Construction Standard to Patents that Expire During Pendency of Re-exam

By: Eric Caligiuri

In In re CSB-System Int’l, Inc., No. 15-1832 (Fed. Cir. Aug. 9, 2016), the Court of Appeals for the Federal Circuit recently held that patents that expire during a pending re-examination before the Patent Trial and Appeal Board (“PTAB”) should be examined under the Phillips standard of claim  construction, and not the broadest reasonable interpretation (“BRI”) standard.  Typically, in District Court litigation claims in issued patents are construed using the framework set forth in Phillips v.

More
August 23 2016

OSHA’s Fact Sheet Providing Guidance to Employers To Protect Workers from Exposure to the Zika Virus

By Beth V. West

OSHA’s Fact Sheet providing guidance for protecting workers from occupational exposure to the Zika virus explains that the Zika virus is primarily spread through the bites of infected mosquitoes and that mosquitoes can become infected when they bite infected persons and then spread the Zika virus to other persons they subsequently bite. According to OSHA, current science-based evidence suggests that approximately one out of five infected people develops symptoms of the Zika virus,

More
August 23 2016

The EEOC’s Final Rules On Employer Wellness Programs

By Brendan J. Begley

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued two final rules confirming that employers can offer limited incentives (in the form of a reward or avoidance of a penalty) to encourage employees and their spouses to participate in workplace wellness programs.  Under these new rules, employers who offer wellness programs will be allowed to provide such limited incentives to employees or their spouses to induce them to provide information about their current or past health status. 

More
August 18 2016

The Seattle Seahawks’ 12th Man Flies Again

By: Josh Escovedo

If you regularly follow our publication, you may remember when I discussed the Seattle Seahawks and their use of the Texas A&M trademark “12TH MAN” over a year ago. If not, that’s okay too. In short, I discussed how the Seattle Seahawks have been utilizing the Texas A&M trademark without permission and were facing legal action for infringement when the parties entered into their first licensing agreement in 2006 for $100,000 upfront and an additional $5,000 per year.

More
August 18 2016

NLRB Panel’s Strict Interpretation Of “You’re Fired”

On July 14, 2016, a three-member panel appointed by the National Labor Relations Board (“NLRB”) reversed an Administrative Law Judge decision in favor of the employee. The Panel found that a complaining employee who was told he was “fired” in a meeting and subsequently told he was not fired after the meeting on the same day, was in fact discharged for purposes of the Act. Thus, the Panel found the employer violated National Labor Relations Act (the “Act”) Section 8(a)(1).

More
August 15 2016

EEOC Urges Employers To Revamp Harassment Prevention Practices

On June 20, 2016, the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace issued a 130-page report detailing its findings after 14 months of study of workplace harassment. To the dismay of many employers, the Select Task Force found that workplace harassment remains a persistent problem, and most employers’ harassment prevention training has been ineffective in preventing it.  The Select Task Force urged employers to “reboot” their workplace harassment prevention efforts.

More
August 11 2016

Small Burger Chain Has a Beef With Chipotle

By: Scott Hervey

Chipotle’s entry into the burger business has a Boston based small burger chain up in arms.  The Boston burger spot, which has been in operation since 2010 and goes by the name Tasty Burger, has a beef with the brand Chipotle has chosen for its restaurants, Tasty Made.SHervey

Tasty Burger claims that Chipotle brand infringes on its trademark,  Despite a cease and desist letter and public threats of a lawsuit,

More
August 10 2016

Trucking Company Found In Violation Of WARN Act

 

Often times, when a company acquires another company, it does not wish to retain all of the other company’s employees.  The employees who do not get brought on board often end up out of work.  Under these circumstances, issues arise over how to handle the laid off employees.  Federal law requires employers to provide at least 60-days’ written notice prior to terminating employees affected by such a merger.  So who is required to provide the notice,

More
August 9 2016

DOL Issued Updated Employment Law Posters – Be Sure You Post Them In Your Workplace

By: Lizbeth V. West

In July 2016, the federal Department of Labor (DOL) updated two posters that employers are required to post in the workplace.

  1. The “Employee Rights under the Fair Labor Standards Act” poster; and
  2. The “Employee Rights – Employee Polygraph Protection Act” poster.

According to the DOL, every employer subject to the federal Fair Labor Standards Act (FLSA) and the Employee Polygraph Protection Act (EPPA) must post and keep posted on its premises the amended posters after August 1,

More
August 4 2016

Wearable Technology Raises Concerns Regarding IP, Data Privacy and Data Security

By Jo Dale Carothers

When fashion fuses with high tech, we see our friends show up with trendy wearables, such as smart watches, fitness bands, and even high-tech, designer purses.  But, trendiness aside, wearables raise numerous questions for designers, manufacturers and consumers relating to intellectual property, data privacy and data security.  For example, how does a company protect the technology for its latest smart watch?  Should they rely on patents, trademarks,

More
August 2 2016

Restaurant’s Fee Deduction Program Violates FLSA

 

Employers whose workers earn most of their compensation through tips, such as restaurant employees, know that they walk a fine line to ensure compliance with the Fair Labor Standards Act (“FLSA”) and numerous other laws.  Last month the Fifth Circuit rejected a program instituted by a restaurant operator in Texas that deducted certain fees before paying tips to its restaurant workers that were earned by customers using credit cards. While the ruling does not close the door on such arrangements,

More
August 1 2016

New Jersey Court Limits Employer Ability To Contract

 

The New Jersey Supreme Court says no, or rather not so short. The Court unanimously held that employers cannot contractually shorten the two-year statute of limitations period for private claims under the New Jersey Law Against Discrimination (“LAD”).

Read about it here: http://bit.ly/2amNrdr

More
July 28 2016

Window Closes Today! Employer Should Provide Notice Before this Opportunity is Gone!

By: Jessica Schoendienst

WINDOW CLOSES TODAY!

Employers who wish to take advantage of the safe harbor provision of California’s new piece rate legislation, must provide notice to the Director of Industrial Relations by July 28, 2016. The deadline for employers to provide notice was temporarily suspended while a Fresno Superior Court considered a petition by Nisei Farmers League requesting a preliminary injunction to prevent the implementation of the safe harbor provisions of Labor Code section 226.2 created by AB 1513.

More
July 28 2016

Trademark Assignability Laid Bare

By: James Kachmar

Crazy Horse was a legendary Native American chief of the Oglala Lakota tribe who lived during the second half of the 1800s.  Unfortunately today, his name may be more familiar as a brand for various products, such as motorcycle gear, whiskey, rifles and strip clubs.  In Russell Road Food & Beverage, LLC v. Spencer, et al., the Ninth Circuit was faced with the issue of the assignability of the trademark “Crazy Horse” in a lawsuit between two strip club operators in Las Vegas,

More
July 25 2016

Self-Help Discovery May Be Protected Activity

 

As a matter of first impression, the Massachusetts Supreme Judicial Court recently held that self-help discovery may constitute “protected activity” under Massachusetts’ anti-retaliation statute. The decision is contrary to other jurisdictions which do not expressly authorize such self-help discovery.

To read the full blog, please visit: http://blog.hrusa.com/blog/self-help-discovery-may-be-protected-activity/

More
July 21 2016

INDUCED INFRINGEMENT BECOMES MORE DIFFICULT TO DEFEND

By: Audrey Millemann

In Warsaw Orthopedic, Inc. v. NuVasive, Inc. (June 3, 2016) 2016 U.S. App. LEXIS 10092, the Federal Circuit Court of Appeals broadly interpreted the Supreme Court’s test for induced infringement, finding irrelevant the defendant’s belief that there was no infringement.

Warsaw and a related company, Medtronic, sued NuVasive for patent infringement.  NuVasive counterclaimed against Warsaw and Medtronic for infringement of its patent.  NuVasive’s patent covered methods used during surgery to detect a nerve and determine the distance to the nerve. 

More
July 20 2016

Fee Limits Ruled Unlawful in Florida Workers’ Comp Cases

In a long-awaited decision, the Florida Supreme Court ruled in Marvin Castellanos v. Next Door Company, et al. that the limitations on attorneys’ fees awarded under Florida’s workers’ Compensation statute violates the due process clause of both the Florida and United States Constitutions. As a result of this holding, attorneys are no longer limited to fees based exclusively on a percentage of the benefits actually secured.  They may now be awarded an hourly fee for time and effort reasonably expended on litigating workers’ compensation benefits.

More
July 20 2016

Neutral Solutions: We Help You Connect The Pieces

Neutral Zone for L&E Final_Page_1

The Neutral Solutions Team at Weintraub Tobin can help you avoid expensive and protracted litigation. We specialize in:

  • Training supervisors on various workplace issues, including preventing harassment, discrimination, and retaliation; workplace health and safety; and managing leave laws.
  • Conducting independent investigations into complaints of misconduct in the workplace.
  • Mediating employment disputes both pre and post litigation

For more information please contact:

Lizbeth “Beth”

More
July 18 2016

Employee Requests For Payroll Records: Haste Makes, er, a Hash of Things

By: Charles L. Post

Conventional wisdom notwithstanding, employers are people or, if they are not, they are staffed by people. People often take short cuts. HR workers are no different from anybody else.  They are prone to take the shortest distance between two points.  It may be for that reason that I am increasingly seeing employers make a common error in responding to employee requests for “payroll records”. Labor Code section 226,

More
July 14 2016

En Banc Federal Circuit Rules A Product Must be the Subject of a Commercial Sale or Offer for Sale to Trigger On-Sale Bar

By:  Eric Caligiuri

On July 11, 2016, the U.S. Court of Appeals for the Federal Circuit ruled in a unanimous en banc decision in The Medicines Co. v. Hospira Inc., Federal Circuit case number 2014-1469, that to be “on sale” under pre-AIA 35 U.S.C. § 102(b), a product must be the subject of a commercial sale or offer for sale, and that a commercial sale is one that bears the general hallmarks of a sale pursuant to Section 2-106 of the Uniform Commercial Code.   

More
July 11 2016

OSHA Penalties For Health & Safety Violations Are Going Way Up Starting August 1, 2016

By: Beth V. West

In November 2015, Congress enacted legislation requiring federal agencies to adjust their civil penalties to account for inflation. The Department of Labor (DOL) adjusted penalties for its agencies, including the Occupational Safety and Health Administration (OSHA).

OSHA’s maximum penalties, which were last adjusted in 1990, will increase by 78%. Going forward, the agency will continue to adjust its penalties for inflation each year based on the Consumer Price Index.

More
July 7 2016

Federal Judge Blocks The Department Of Labor

 

Persuader Rule Fails To Persuade Federal Judge In Texas   

Last week a federal court in Texas issued a nationwide ban preventing the Department of Labor (“DOL”) from enforcing its recently proposed Persuader Rule.  That rule would have greatly expanded reporting requirements for both employers and their outside consultants, including attorneys, whenever any advice is given on unionizing or collective bargaining.  For now, employers and their advisors have a reprieve that allows them to continue reporting as they have been for the last 50-plus years.

More
June 30 2016

Fair Use and Youtube - A Creator's Take

6/25/16-  At the 7th Annual  VidCon in Anaheim, CA , Weintraub Tobin Shareholder Scott M. Hervey and Rian Bosak, Head of Network Operations Full Screen, presented  “Fair Use and Youtube- A Creator’s Take” to a standing room only audience of digital media creators and industry professionals.  Check out their presentation below:

 

Fair Use and Youtube- A Creator's Take from Weintraub Tobin

More
June 30 2016

WATCH OUT! SUPREME COURT OPENS DOOR TO TREBLE DAMAGES IN PATENT CASES!

By: Audrey Millemann

Up until now, it has been nearly impossible for a plaintiff to recover enhanced (up to treble) damages in patent infringement cases.  The current test for enhanced damages, set forth by the Federal Circuit Court of Appeals in 2007 in In Re Seagate Technology, LLC, 497 F.3d 1360 (2007), was so rigid that it essentially slammed the door on plaintiffs seeking enhanced damages. 

More
June 23 2016

Seventh Circuit Finds Class Action Waivers Unlawful

By: Daniel C. Zamora

On May 26, 2016, the U.S. Court of Appeals for the Seventh Circuit in Lewis v. Epic Systems Corporation, held that when an employer conditions continued employment upon the signing of a class or collective action waiver in an arbitration agreement, the agreement violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal Arbitration Act (FAA). The decision creates a split with other circuit courts,

More
June 20 2016

EEOC Issues Proposed Guidance On National Origin Discrimination

By: Vida L. Thomas

On June 2, 2016, the Equal Employment Opportunity Commission (“EEOC”) released a proposed guidance on national origin discrimination under Title VII, and is seeking public input.  Title VII prohibits employment discrimination against applicants and employees because of their national origin, because they are from a particular country or part of the world, or because of actual or apparent ethnicity.  The EEOC publishes guidance documents to explain its enforcement position to employers and employees,

More
June 21 2016

The Supreme Court Rules the PTAB and District Courts Can Continue to Apply Different Standards for Interpreting Patent Claims

By: Jo Dale Carothers

Patent litigators and prosecutors have been waiting to hear whether the U.S. Supreme Court would require the United States Patent and Trademark Office (“USPTO”) to apply the same claim construction standard as the district courts.  The answer is “No.”

For over 100 years, the USPTO has used the “broadest reasonable construction” standard to interpret patent claims.  But the district courts apply a different standard, which gives claims their ordinary meaning as understood by a person of skill in the art. 

More
June 20 2016

The EEOC Special Task Force Issues Its Report on the Study of Harassment in the Workplace and Finds that “We Have Come Far But Still Have Far To Go”

By: Beth V. West

The EEOC Special Task Force (“Task Force”) has spent the last 18 months examining the myriad and complex issues associated with harassment in the workplace. Thirty years after the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964, the Task Force concludes that “we have come a far way since that day,

More
June 15 2016

OFCCP Issues New Rule Regarding Sex Discrimination For Federal Contractors

By: Beth V. West

On June 14, 2016, the Office of Federal Contract Compliance Programs (OFCCP) announced publication of a Final Rule in the Federal Register that sets forth the requirements that covered contractors must meet under the provisions of Executive Order 11246 prohibiting sex discrimination in employment. This Final Rule updates sex discrimination guidelines from 1970 with new regulations that align with current law and address the realities of today’s workplaces.

More
June 6 2016

Pennsylvania’s New Medical Marijuana Law And The Workplace

By: Brendan J. Begley

Employers in Pennsylvania may or may not be enjoying high times as that state’s Medical Marijuana Act (“MMA”) went into effect on May 17, 2016.  This new law allows patients to use marijuana to treat autism, cancer, HIV/AIDS, and post-traumatic stress disorder, among other ailments.  Governor Tom Wolf signed the MMA into law on April 17, 2016, just three days before one of the most important dates on the calendar for marijuana enthusiasts.

More
June 6 2016

Google’s Fair Use Defense Thwarts Oracle’s Attempt to Recover $9 Billion in Copyright Case

By:  Eric Caligiuri

In a high-profile case, a jury recently found that Google’s use of portions of Oracle’s Java software code was allowable under the fair use doctrine and thus did not constitute copyright infringement.  Oracle sought as much as $9 billion in damages from Google for incorporating approximately 11,000 lines of Oracle’s Java software code into Google’s Android software.  Not only were billions of dollars in monetary damages at stake in this dispute,

More
June 3 2016

Ninth Circuit Rejects Current Status of Music Sampling Copyright Infringement And Sets Circuit Split For The Supreme Court

By Scott Hervey

On June 2, 2016 the Ninth Circuit issued an opinion in a music sampling Copyright infringement case that sets up a split between the Ninth Circuit and the Sixth Circuit which will likely send the issue to the Supreme Court.   At issue in the Ninth Circuit case was a claim of infringement based on Madonna’s use of horn samples from the song “Love Break” in her hit song “Vogue”. 

More
May 31 2016

New Federal Trade Secret Law Takes Effect!

By Jo Dale Carothers

So what is a trade secret?  Generally, a trade secret is information that the owner has taken reasonable measures to keep secret, derives independent economic value from not being generally known, and cannot be readily ascertainable by proper means, such as reverse engineering or independent development.  Many businesses rely on trade secret protection rather than patent protection for confidential information such as product recipes (e.g.,

More
May 27 2016

Tattoo Infringement Case Against NBA 2K Game Publisher Shows Misunderstanding of Applicability of Statutory Damages

By Scott Hervey

This isn’t just another tattoo-copyright infringement case.  This case raises an important lesson for all copyright claimants.

The backstory: Solid Oak is a licensing firm that represents the go to tattoo artists for NBA royalty, including LeBron James.  Solid Oak filed a lawsuit against Take-Two Interactive Software, the game publisher behind the popular “NBA 2K” basketball video game.  The lawsuit alleges that Take-Two  infringes the copyrights in six tattoos appearing on LeBron and other NBA players by depicting those players – tattoos and all – in the video game.  

More
May 18 2016

DOL Updates the Minimum Salary for Exempt Employees

By: Lukas J. Clary

Are you sure you’re paying your exempt employees enough?   Even if you are right now, you might not be come December 1, 2016.  The U.S. Department of Labor unveiled today its long-awaited Final Rule updating the definitions of most types of exempt employees under federal law.

While there are several important provisions in the new rule, the most important for California employers is the new minimum salary threshold for exempt employees. 

More
May 13 2016

Governor Brown Signs a Law to Help Small Businesses Defend Against State Disability Access Lawsuits

By Lizbeth V. West

On May 10, 2016 Governor Brown signed Senate Bill 269 (SB 269) which amends certain California statutes dealing with disability access in public accommodations and business establishments. SB 269 is not a new law, but rather, an effort by the Legislature and Governor Brown to amend existing law in order to address the significant financial hardship that “drive-by” and “technical non-compliance” lawsuits are having on small businesses in California.

More
May 12 2016

THE EEOC JUST KEEPS ON GIVING! New “Guidance” Document Re: Employer-Provided Leaves And The ADA

On May 9, 2016 the EEOC issued yet another “guide” – this time to outline its position on when and how leave must be granted for reasons related to an employee’s disability under the Americans
with Disabilities Act (“ADA”).  The publication, entitled “Employer-Provided Leave and the Americans with Disabilities Act,” contains information on the EEOC’s position in connection with six subject areas relating to leaves as a form of reasonable accommodation under the ADA,

More
May 10 2016

Pull up a Chair: California Supreme Court Weighs in on Suitable Seating

By Lukas Clary

 

To sit or not to sit, that is the question.  And now the California Supreme Court has given us an answer.  Well, sort of.  They have told us how to find the answer.  Even that’s a stretch.  Pull up a seat and I will explain.

 

To help it resolve two class actions involving California Wage Order requirements that employers provide employees with suitable seats,

More
May 5 2016

Senate and House of Representatives Pass the Defend Trade Secrets Act

By Charles Post

Senate and House of Representatives Pass the Defend Trade Secrets Act (DTSA).  First federal trade secret bill awaiting presidential signature.

More details can be found at the following Forbes article:  “The New Defend Trade Secrets Act is the Biggest IP Development in Years,” dated April 28, 2016.

More
May 4 2016

Two Things You Can Do To Reduce the Likelihood That Your Company Will Be Found Liable For Conspiring Or Aiding And Abetting In An Employee’s Breach of Duty To A Former Employer

By Charles Post

When companies sue their former employees for theft they often claim that the former employee’s new employer has conspired with the former employee to misappropriate trade secrets, or that that new employer has aided and abetted the former employee’s breach of duty he/she owed to his/her former employer.

Like Woodward and Bernstein, liability “follows the money.”  Current employers are often added to trade secret and breach of duty lawsuits because they have deeper pockets than former employees. 

More
May 2 2016

FEDERAL CIRCUIT APPLIES BROADENED TEST FOR DIVIDED INFRINGEMENT

By Audrey Millemann

On April 18, 2016, the Supreme Court denied certiorari in Akamai Technologies, Inc. v. Limelight Networks, Inc., 797 F.3d 1020 (Fed. Cir., August 2015) (“Akamai IV”), cert. denied, 2016 U.S. LEXIS 2768.  The Court declined Limelight’s petition for review of a $46 million jury verdict against Limelight for patent infringement.  The jury had found Limelight liable for direct infringement of Akamai’s method patent,

More
April 26 2016

Warning! Know Your Payroll Service Contract!

By Charles Post

Many – maybe even most – contracts issued by major payroll processing services contain traps for the unwary. Many employers I speak with turn over all payroll processing responsibilities, including issuance of accurate checks and wage statements and record storage, to their payroll processing service.

This may be a big mistake.

When faced with an individual or a class-action wage and hour claim,

More
April 25 2016

Court Orders Plaintiff to Pay Defendants’ $8 Million in Attorney’s Fees in Patent Row

By Eric Caligiuri

Since the U.S. Supreme Court’s twin 2014 decisions in Highmark Inc. v. Allcare Health Management System, Inc. and Octane Fitness, LLC v. ICON Health & Fitness, Inc. attorney’s fees awards are becoming more common in patent cases.  35 U.S.C. § 285 allows attorney fees “in exceptional cases.”  Before 2014, this meant a court awarded attorney’s fees only if a party’s litigation position was objectively baseless.  

More
April 19 2016

Governor Brown Signs Bill to Expand the Amount of Wage Replacement Available under California’s Paid Family Leave Law

By Beth West

On April 11, 2016, Governor Brown signed Assembly Bill (AB) 908 which amends certain provisions of California’s Unemployment Insurance Code as it relates to the State’s Paid Family Leave (PFL) program. Before explaining the amendments provided for under AB 908, I think it is important to clarify something that is too often misstated in the press. Despite its name, California’s PFL program is not a statutory leave of absence program that guarantees paid family leave to employees in California.

More
April 15 2016

Supreme Court Battle Set Over Prohibition of Disparaging Trademarks

By Scott Hervey

Section 2(a) of the Lanham act bars the registration of “scandalous, immoral or disparaging trademarks.” The USPTO has used this applied this provision to refuse the registration of marks such as F**K PROJECT, PORNO JESUS, ASSJACKED and NO $#!+.  The USPTO also invoked this provision when it upheld an examiner’s refusal to register the mark THE SLANTS for a musical band on the grounds that it was offensive to Asian-Americans. 

More
April 11 2016

California Increases Minimum Wage – Prepare Now to Avoid Future Liability!

By Jessica Schoendienst

California lawmakers, union supporters, and Governor Brown have come together to increase California minimum wage to $15.00 over the next several years.  Governor Brown signed the law only one week after he announced that legislators and labor leaders negotiated a deal behind the scenes.

The new law requires California employers with more than 25 employees to pay at least $15.00 per hour by 2022.  Employers will 25 or less employees have an additional year to increase their wages to at least $15.00 per hour. 

More
April 8 2016

News Flash: San Francisco To Require 6-Weeks Paid Parental Leave

By:  Darrell P. White

On April 5, 2016, the San Francisco Board of Supervisors unanimously passed an ordinance requiring local businesses to effectively provide their employees with six-weeks of fully-paid parental leave.  Click here to view.  Under existing California law, employees may receive up to 55% of their wages for six weeks through the California’ State Disability Insurance (SDI) program.  San Francisco’s new law would require employers to cover the pre-existing,

More
April 1 2016

Are Pins, Posts, Tweets and Likes Appropriate for Use in Selecting Jurors?

By Jo Dale Carothers

When you hear the name of someone you can’t place or don’t know much about, what do you do?  Chances are, you “Google” them.  Well that is what attorneys are doing to learn more about prospective jurors too!  But they are not stopping there.  They are looking at a number of social media sites, such as Facebook, Twitter, and LinkedIn to learn about the profiles,

More
March 18 2016

Pre-Issuance Damages for Patent Infringement – A Very Rare Remedy

By: Audrey A. Millemann

The Federal Circuit Court of Appeals recently addressed an issue of first impression: what is the “actual notice” required under 35 U.S.C. §154(d) for a patent owner to recover damages for a defendant’s infringing conduct that occurred before the patent issued?

Most people assume that a plaintiff cannot recover damages for patent infringement for infringing actions that took place before the patent issued (pre-issuance damages).

More
March 11 2016

Apple Argues It Should Not Be Compelled to Write Software for the F.B.I.

By: Eric Caligiuri

On February 16, 2016, Magistrate Judge Sheri Pym in the United States District Court for the Central District of California issued an order compelling Apple, Inc. to provide technical assistance to the F.B.I. so it can access an iPhone 5C that belonged to a shooter in the recent San Bernardino, California attack.

The order, which issued without obtaining Apple’s initial input, requires Apple to write new software and take other measures to disable passcode protection on the attacker’s iPhone.

More
March 8 2016

Social Media Fail: Sometimes Even Employers Memorialize Bad Decisions on the Internet

By: Labor and Employment Group

Don’t deny it: you scroll through your social media feeds past the mundane photos, click-bait, and “humble brags” in search of explosive drama. Eventually, you might land on a status update from one of the reliable “oversharers” on your friends list (we all have them). She was just terminated from her job and decided to air her grievances about her former employer in her status update.

More
March 7 2016

Kylie Minogue v. Kylie Jenner: A TTAB Clash of Celebrities

By: Josh H. Escovedo

Kylie Jenner has finally decided to step out from behind her older sisters and get to work on her own independent ventures. In furtherance of this desire, Ms. Jenner filed numerous federal trademark applications in April and November 2015. The applications relate to Ms. Jenner’s first name, as well as her full name. As you may know, a trademark provides its user the exclusive right to use the mark in connection with the class of goods in which the mark is registered.

More
March 4 2016

DFEH Releases New Guidance Regarding Transgender Employees

By: Daniel C. Kim

The Department of Fair Employment and Housing (“DFEH”) recently issued new guidance for employers to prevent discrimination against transgender employees, who are protected under California’s Fair Employment & Housing Act (“FEHA”). Since 2012, FEHA protection has been extended to include gender identity and gender expression categories, and defines “gender expression” to mean a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The DFEH’s new brochure,

More
February 24 2016

Avoid These Three Investigation Traps!

By: Vida L. Thomas

Conducting workplace investigations is not easy.  The process is filled with land mines that can trip up even the most experienced investigator.  Although there are many mistakes I’ve seen investigators make, these are the three most common.

Trap #1: Failing To Define The Investigation’s Scope Before You Begin.

Investigations are tricky things, and can take many unexpected twists and turns.  The complaining employee often may make one allegation in his/her verbal complaint to a supervisor,

More
February 19 2016

The Federal Circuit Finds Foreign Sales Do Not Exhaust Patent Rights

By: Jo Dale Carothers

In Lexmark International, Inc. v. Impression Products, Inc., No. 14-1617 (Fed. Cir. 2016), the U.S. Court of Appeals for the Federal Circuit decided en banc that a U.S. patent owner’s “first sale” of items in a foreign country does not exhaust the patent owner’s right to sue for patent infringement when those items are later imported into the U.S. In contrast, the Supreme Court in Kirtsaeng v.

More
February 12 2016

Disney’s Influence on United States Copyright Law

By: Josh H. Escovedo

If you’ve ever applied for, or researched copyright law, you likely learned one thing above all else: it’s not a perpetual right. So, how, you might wonder, have companies like The Walt Disney Company managed to maintain copyrights on certain creations for almost 100 years? In the case of the Walt Disney Company, the answer is simple. It is powerful enough that it actually changed United States copyright law before its rights were going to expire.

More
February 5 2016

Federal Circuit Limits Attorneys’ Fees in Exceptional Cases

By: Audrey A. Millemann

Two weeks ago, the Federal Circuit Court of Appeals limited the factors a district court may consider in determining the amount of attorneys’ fees to award in an “exceptional” patent infringement case. Lumen View Tech., LLC v. Findthebest.com, Inc. (January 22, 2016) 2016 U.S. App. LEXIS 1087.

Lumen was the exclusive licensee of a patent covering a method for facilitating bilateral and multilateral decisionmaking. The method required analyses of preference data from two groups of people.

More
February 4 2016

Employers Can Demand Departing Employees Repay Training Costs

By: Lukas Clary

Training new employees is expensive.  That is particularly true when an employer offers to pay for an employee’s educational training.  The benefits of doing so include a more educated and well-trained workforce, as well as increased morale and employee loyalty.  The risk, of course, is that an employee may decide to take his or her employer-funded education and use it to find another job somewhere else.  Employers sometimes offset that risk by requiring the employee to sign an agreement to pay the employer back if he or she leaves for another job shortly after completing the education. 

More
January 29 2016

Copyright Infringement and the First Sale Defense

By: James Kachmar

The Ninth Circuit’s recent decision in the case of Dolby Systems, Inc. v. Christenson, focuses primarily on the issue of which party bears the initial burden of proof with regard to a “first sale” defense in a copyright infringement action. As the reader will see, however, this case really provides a cautionary tale as to the consequences a party may face when it plays games during discovery.

Adobe,

More
January 22 2016

Five IP Pitfalls That Start-Up (and Grown Up) Companies Can Easily Avoid

By: Scott M. Hervey

In business, there are numerous opportunities for pitfalls, mistakes and errors and they come up in all different legal areas – from basic formation issues to labor and employment to intellectual property. Mistakes and missteps involving intellectual property can be particularly problematic because IP is a company asset; it constitutes a part of (often a significant part of) a company’s valuation. In my 20 years working with start-up companies – and even fully grown-up companies,

More
January 20 2016

New Guidance from the DOL Regarding Joint Employment

By: Brendan J. Begley

In an effort to clarify the circumstances that may create a joint-employment relationship, the U.S. Department of Labor issued an Administrator’s Interpretation this week.  This Administrator’s Interpretation, which can be found at this link, analyzes joint employment under the Fair Labor Standards Act (“FLSA”) and the Migrant and Seasonal Agricultural Worker Protection Act.

Joint employment may occur under various circumstances; for example,

More
January 15 2016

California’s Minimum Wage Increase: The Impact May Be Broader Than Employers Think

By: Melissa M. Whitehead

Effective January 1, 2016, California has increased its minimum wage from $9 per hour to $10 per hour. This is the second increase to the state minimum wage in the past year and a half. Remember, the obligation to pay minimum wage cannot be waived by any agreement, including collective bargaining agreements.

Employers must examine all pay practices that may be affected by the minimum wage increase – and there are almost certainly more practices that may be impacted than you may think!

More
January 8 2016

Don’t Get On the Wrong Side of Taylor Swift in a Copyright Case!

By: Audrey A. Millemann

Taylor Swift has been in the news a lot over the last year or so. She is phenomenally successful. Her hit album “1989” concert tour was the highest grossing tour in the world in 2015 (over $250 million) and the highest grossing tour ever in North America (smashing the previous record held by the Rolling Stones’ 2005 tour).

As she said in a Wall Street Journal Op/Ed piece in 2014,

More
January 4 2016

The Federal Circuit Breathes Life into the Redskins’ Appeal

By: Josh H. Escovedo

If you’re a fan of intellectual property or the National Football League, you may have heard about last July’s ruling in the United States District Court for the Eastern District of Virginia. There, Judge Gerald Bruce Lee affirmed the Trademark Trial and Appeal Board’s ruling that the team’s moniker is offensive to Native Americans, and therefore ineligible for trademark protection under the Lanham Act, which prohibits registration of disparaging marks.

More