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Published: May 7, 2010
Download: Porter v. Winter Legal Alert.pdf
Weintraub lawyers Charles L. Post and Lizbeth V. West win appeal before the Ninth Circuit re: Title VII harassment and retaliation subject matter and attorneys fees.
To view the full case summary, please click on the pdf link above.
Published: May 6, 2010
The Labor & Employment Law Blog
On May 5, 2010, the Ninth Circuit Court of Appeal issued an Opinion, to be published, in the case titled Porter v. Winter (9th Cir. 07-171250). Attorney Charles L. Post prepared and submitted the briefs and attorney Lizbeth V. West appeared and argued before the Ninth Circuit on behalf of Appellant, Ronald Porter.
Ronald Porter, a former civilian employee of the Navy, brought a complaint before the Equal Employment Opportunity Commission (“EEOC”) alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964. The EEOC found the Navy liable for retaliation, but not gender discrimination. Porter sought to recover the attorney’s fees and costs he incurred in the Title VII administrative proceedings, but the Navy awarded him only a fraction of the amount he requested. After reviewing the Navy’s fee decision, the EEOC slightly increased the award.
Porter filed a complaint in district court challenging the amount of attorney’s fees awarded to him in the Title VII administrative proceedings. The district court dismissed the complaint for lack of subject matter jurisdiction, reasoning that it did not “have jurisdiction to adjudicate solely a claim for attorney’s fees without a claim of a substantive violation of Title VII.” Porter appeals that ruling. We have jurisdiction under 28 U.S.C. § 1291 and review the district court’s decision de novo. Armstrong v. N. Mariana Islands, 576 F.3d 950, 954 n.4 (9th Cir. 2009).
We conclude that, under New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), federal courts have subject matter jurisdiction over claims brought solely to recover attorney’s fees incurred in Title VII administrative proceedings. Accordingly, we reverse. For a full copy of the Opinion, visit http://www.ca9.uscourts.gov/datastore/opinions/2010/05/05/07-17120.pdf
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Charles “Chuck” Post and Lizbeth “Beth” West are shareholders in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Chuck’s practice includes counseling employers in all areas of employment law and representing management in the defense of wrongful termination, discrimination, harassment, trade secret, employee mobility and other employment disputes. He has extensive experience defending multi-party complex litigation involving misappropriation of trade secrets, unfair competition, and corporate raiding. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. Chuck and Beth also provide training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Charles L. Post or Beth West at (916) 558-6000. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.
Published: April 30, 2010
Sacramento’s fifth-largest law firm quietly opened a branch in Los Angeles this week.
Weintraub Genshlea Chediak Law Corp. has hired two litigators in an office on Wilshire Boulevard to solidify a toehold in the intellectual property, employment and entertainment markets in Southern California.
The firm has expanded in Sacramento, too. Four lawyers have joined the real estate, bankruptcy and corporate practice groups in recent months, including a shareholder from McDonough, Holland & Allen PC.
To read the entire article, please click the link above.
Published: April 27, 2010
In the latest chapter of the Davis Area Cooperative Housing saga, the limited-equity co-op has been jerked out of foreclosure proceedings and plunked into involuntary bankruptcy. … Louis Gonzalez, attorney for Twin Pines and Neighborhood Partners, said the trustee will determine whether DACHA can repay all, some or none of the debt owed to its creditors. At the end of the months-long process, a federal judge will decide whether to approve the trustee’s plan, Gonzalez said.
Click on link above to read the full story.
Published: April 19, 2010
by
Lizbeth (Beth) V. West
The Labor & Employment Law Blog
President Obama signed H.R. 4851 into law on April 15, 2010. The new law amends the American Recovery and Reinvestment Act of 2009 (“ARRA”) yet again to extend the 65% COBRA premium assistance through May 31, 2010.
The COBRA subsidy was originally provided as part of the ARRA in 2009. If an employee is involuntarily terminated on or before May 31, 2010 and is otherwise eligible for COBRA, he or she is eligible to receive a 65% subsidy in his or her COBRA premiums. This means the former employer pays 65% of the health insurance premium under COBRA and the employee pays the remaining 35%. Employers can then apply for a tax credit for the portion of the COBRA premium they pay.
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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.
Published: March 4, 2010
by
Lizbeth (Beth) V. West
The Labor & Employment Law Blog
On March 2, 2010, President Obama signed the Temporary Extension Act of 2010 (H.R. 4691) that, among other things, extends the eligibility period for the COBRA subsidy provided in the American Recovery and Reinvestment Act (ARRA) for an additional 30 days.
The new legislation extends the eligibility date for the COBRA subsidy from February 28, 2010 to March 31, 2010.
The COBRA subsidy provisions under the ARRA provide that eligible employees (those who are “involuntarily terminated” within the stated period) pay 35% of the premium costs and employers pay the other 65%. The employer can then file for a federal tax credit for the premium subsidy it pays.
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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s employment law blog at www.thelelawblog.com.
Published: February 9, 2010
Download: LAW ALERT – $6.2 Million Settlement in EEOC Complaint Against.PDF
On February 5, 2010, the EEOC issued a press release announcing the court approval of a $6.2 million settlement of its lawsuit against Sears, Roebuck & Company on behalf of 235 employees. The lawsuit maintained that Sears had an inflexible workers’ compensation leave exhaustion policy that terminated employees once they exhausted their workers’ compensation [leave] entitlement rather than engaging in the interactive process to determine if a reasonable accommodation existed to help return them to work. The settlement is the largest ADA settlement in a single case in EEOC history. Each of the 235 employees will receive approximately $26,300 in settlement funds.
This case is an important reminder to employers that when an employee is out on some form of statutory leave of absence (e.g. workers’ compensation or FMLA), if the employee exhausts such leave and is still experiencing a medical condition that qualifies under the ADA (and/or a state disability law like California’s Fair Employment and Housing Act), the employer must engage in the interactive process to determine if a reasonable accommodation (including a possible extension of the employee’s leave) is available that can be provided to the employee without creating an undue hardship on the employer. Otherwise, strict application of leave policies that result in the termination of an employee who fails to return to work at the exhaustion of such leave (e.g. at the end of 12 weeks of FMLA leave) can expose the employer to significant liability.
The EEOC press release is available at: www.eeoc.gov/eeoc/newsroom/release.
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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.
Published: January 19, 2010
by
Lizbeth (Beth) V. West
The Labor & Employment Law Blog
Download: LAW ALERT – DOL Model Notices COBRA Susbidy Extension.pdf
On January 19, 2010, the Department of Labor (“DOL”) issued model notices to help plan administrators and employers comply with COBRA notice requirements as dictated by the American Recovery and Reinvestment Act (“ARRA”), as amended by the Department of Defense Appropriation Act, 2010 (“2010 DOD Act”).
There are three DOL model notices that plan administrators and employers can utilize: 1) the Updated General Notice; 2) the Premium Assistance Extension Notice; and 3) the Updated Alternative Notice. Below is a brief summary of the DOL’s explanation of the notice requirements in connection with the extended COBRA subsidy and which model notices should be used.
1. Updated General Notice
Plans subject to the Federal COBRA provisions must provide the Updated General Notice to all qualified beneficiaries (not just covered employees) who experienced a qualifying event at any time from September 1, 2008 through February 28, 2010, regardless of the type of qualifying event, and who have not yet been provided an election notice. This model notice includes updated information on the premium reduction as well as information required in a COBRA election notice.
2. Premium Assistance Extension Notice
Plan administrators must provide notice to certain individuals who have already been provided a COBRA election notice that did not include information regarding ARRA, as amended. The model Premium Assistance Extension Notice includes information about the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act. Listed below are the affected individuals and the associated timing requirements.
· Individuals who were “assistance eligible individuals” as of October 31, 2009 (unless they are in a transition period – see below), and individuals who experienced a termination of employment on or after October 31, 2009 and lost health coverage (unless they were already provided a timely, Updated General Notice) must be provided notice of the changes made to the premium reduction provisions of ARRA by the 2010 DOD Act by February 17, 2010;
· Individuals who are in a “transition period” must be provided this notice within 60 days of the first day of the transition period. An individual’s “transition period” is the period that begins immediately after the end of the maximum number of months (generally nine) of premium reduction available under ARRA prior to its amendment. An individual is in a transition period only if the premium reduction provisions would continue to apply due to the extension from 9 to 15 months and they otherwise remain eligible for the premium reduction.
3. Updated Alternative Notice
Insurance issuers that provide group health insurance coverage must send the Updated Alternative Notice to persons who became eligible for continuation coverage under a State law. Continuation coverage requirements vary among States and issuers should modify the model notice as necessary to conform it to the applicable State law. Issuers may also find the model Premium Assistance Extension Notice or the updated model General Notice appropriate for use in certain situations.
The model notices can be obtained at the DOL website: www.dol.gov/ebsa/COBRAmodelnotice.html.
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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.
Published: December 23, 2009
by
Lizbeth (Beth) V. West
The Labor & Employment Law Blog
Download: Law Alert. COBRA Subsidy Extended.PDF
President Obama signed the “Fiscal Year 2010 Defense Appropriations Act” (“DAA”) on December 21, 2009. The DAA provides two important changes to the COBRA subsidy that was established under the “American Recovery and Reinvestment Act of 2009” (“ARRA”) earlier this year.
The COBRA subsidy provisions under the ARRA provide that eligible employees (those who are “involuntarily terminated” within the stated period) pay 35% of the premium costs and employers pay the other 65%. The employer can then file for a federal tax credit for the premium subsidy it pays.
The important changes made by the DAA are:
1. Employees who are involuntarily terminated at any time prior to February 28, 2010 (rather than December 31, 2009) may be eligible for the subsidy; and
2. The maximum period an eligible employee may receive the subsidy is fifteen (15) months rather than nine (9) months.
Employees who reached the end of the original nine (9) month period before the enactment of the DAA, have sixty (60) days from the enactment date to pay their portion of any missed premiums, or thirty (30) days after receipt of a notice of extension from the health plan administrator, whichever is later.
The DAA requires that employers notify current and future COBRA beneficiaries of the new fifteen (15) month premium subsidy period within sixty (60) days from enactment (by February 17, 2010) unless an individual’s COBRA “qualifying event” occurs after December 19, 2009 in which case the notice must be sent pursuant to the general time requirements under COBRA. It also permits employers to offset future COBRA premiums or issue a refund check to beneficiaries who overpaid their COBRA premiums because they paid the entire amount without any subsidy.
The DAA also clarifies that an employee’s or beneficiary’s eligibility for COBRA need not occur before February 28, 2010 in order for the individual to be eligible for the subsidy. Rather, it is the COBRA “qualifying event” (“involuntary termination” of an employee) that must occur on or before February 28, 2010.
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Lizbeth “Beth” West is a shareholder in the Labor and Employment Law Section and Disputes, Trials & Appeals Section at Weintraub Genshlea Chediak. Beth’s practice focuses on counseling employers in all areas of employment law, and defending employers in state and federal court, as well as before administrative agencies. She has extensive experience in defending wage and hour claims, and complex whistle-blowing and retaliation claims. She also provides training services on various employment issues, such as sexual harassment and violence in the workplace. If you have any questions about this Legal Alert or other employment law related questions, please feel free to contact Beth West at (916) 558-6082. For additional articles on employment law issues, please visit Weintraub’s law blog at www.thelelawblog.com.
Published: December 18, 2009
by
Scott M. Hervey
The IP Law Blog
After four years, the quest to obtain federal trademark protection for the mark MATTRESS.COM by owner 1800Mattress.com IP, LLC, formerly Dial-A-Mattress Operating Corp, has been put to bed. The United States Court of Appeals for the Federal Circuit has finally held that the mark is generic and not entitled to registration.
On December 9, 2005, Dial-A-Mattress filed U.S. Trademark Application Serial No. 78/976,682, seeking to register the mark MATTRESS.COM for an “online retail store services in the field of mattresses, beds, and bedding.” On February 14, 2008, the trademark examiner assigned to the application finally refused registration of the mark on the basis that it is generic. Dial-A-Mattress appealed the refusal to the United States Trademark Trial and Appeal Board, which affirmed the examiner’s refusal to register the mark. Dial-A-Mattress timely appealed to the Federal Circuit.
This case reflects the fine and often illusive line between marks that are merely descriptive and those that are generic. The distinction can make a very big difference to the mark owner. Descriptive marks are registrable on the Supplemental Register and are capable of elevation to the Principal Register after obtaining secondary meaning, while generic marks are never capable of registration.
15 U.S.C. §1052 provides that no trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it …. (e) Consists of a mark which, (1) when used on or in connection with the goods of the applicant is merely descriptive or deceptively misdescriptive of them. A mark is considered merely descriptive if it describes an ingredient, quality, characteristic, function, feature, purpose, or use of the specified goods or services. For example, the mark APPLE PIE has been held merely descriptive of potpourri and the mark BED & BREAKFAST REGISTRY held merely descriptive of lodging reservations services. The determination of whether a mark is merely descriptive requires consideration of the context in which the mark is used or intended to be used in connection with those goods/services, and the possible significance that the mark would have to the average purchaser of the goods or services in the marketplace. The mark need not describe all the goods and services identified, as long as it merely describes one of them.
By contrast, generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods or services. Put in common parlance, if the general public primarily understands the word to designate the product rather than the producer, the word is generic. Generic terms are incapable of functioning as registrable trademarks denoting source, and are not registrable on the Supplemental Register or on the Principal Register after having acquired secondary meaning. Generic terms are terms that the relevant purchasing public understands primarily as the common or class name for the goods or services. For example, in Yellow Cab Co. of Sacramento v. Yellow Cab Co. of Elk Grove, 266 F. Supp. 2d 1199 (E.D. Cal. 2003) the court determined that the mark YELLOW CAB was determined generic for taxi service, and in Retail Servs., Inc. v. Freebies Publishing, 364 F.3d 535 (4th Cir. 2004) the court determined that the mark FREEBIE is generic for free products or services
There is a two-part test used to determine whether a designation is generic: (1) What is the class of goods or services at issue? and (2) Does the relevant public understand the designation primarily to refer to that class of goods or services? The test turns upon the primary significance that the term would have to the relevant public.
On appeal, Dial-A-Mattress argued that in upholding the refusal to register the TTAB did not show by clear evidence that the relevant public refers to the class of on line stores selling mattresses by the mark MATTRESS.COM. The Federal Circuit disagreed with Dial-A-Mattress, concluding that substantial evidence supported the TTAB’s conclusion that the mark is generic. The Federal Circuit noted that the TTAB considered each part of the mark, “mattress” and “.com” and determined that both were generic. Considered in its entirety, the term “mattress.com” added no new meaning. In coming to this conclusion the TTAB noted the prevalence of this term in the website addresses of several online mattress retailers that provide the same services as Dial-A-Mattress. The Federal Circuit noted that such reliance is permissible to that the relevant public would understand and believe that a website operating under the term “mattress.com” provides online mattress store services.
Determining the line between marks that are merely descriptive and generic is often extremely difficult. It is easy to understand the basis for a generic based refusal for the marks E-TICKET for a computerized reservation and ticketing of transportation services, IM for instant messaging or ICE PAK for a reusable ice substitute for use in food and beverage coolers. However given the challenge of determining where the line between a mark being descriptive and being generic cases like Dial-A-Mattress are always challenging for trademark attorneys and mark owners. One solution – avoid choosing marks that push the envelope of descriptiveness.