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Last update: Mar 20, 2007
Gibbons: Amendments to the LAD may be on the Way Dec 28, 2005
Dismissing the case on summary judgment, the Rosario court found that the plaintiff had not established a prima facie case of national origin discrimination. The court observed that "the LAD contains no per se rule that the use of one's own commonly spoken language is protected by the statute's national origin or ancestry provisions." Id
Gibbons: Employment & Labor Law Alert Dec 28, 2005
Dismissing the case on summary judgment, the Rosario court found that the plaintiff had not established a prima facie case of national origin discrimination. The court observed that "the LAD contains no per se rule that the use of one's own commonly spoken language is protected by the statute's national origin or ancestry provisions." Id
Gibbons: Fifth Circuit Upholds Summary Judgment for Employer Bec... Dec 20, 2005
Dec. 13, 2005), the court acknowledge that plaintiff had made out a prima facie case of sexual harassment by a co-employee sufficient to withstand summary judgment but held that summary judgment in the employer's favor was proper because plaintiff had delayed in following the guidelines for making complaints of sexual harassment as set forth in the company's employee handbook. In the present case, the court of appeals agreed with the trial court that plaintiff had not promptly taken advantage of
Gibson Dunn: The United States Patent and Trademark Office Adopts In... Dec 02, 2005
According to the USPTO, [t]he principal objective of these Guidelines is to assist examiners in determining, on a case-by-case basis, whether a claimed invention falls within a judicial exception to statutory subject matter (i. The Guidelines were adopted shortly after the USPTO s Board of Patent Appeals and Interferences decided, in a business methods case, to overrule the Patent Office s technological arts limitation on patentable subject matter
Blank Rome: Consumer Lending / Retail Banking Update Oct 01, 2005
Now, with plaintiffs’ attorneys having greater access to statistical data through HMDA data collection, clearing the hurdle of assembling a prima facie case will be easier than ever before. Once a plaintiff’s attorney has used statistical analyses of new HMDA data to present a prima facie case of discrimination, the burden of defense falls to the lender, who will have to show that there was a valid business necessity for the questioned lending practices
Dinsmore & Shohl: Employers Beware: Sexual Favoritism in Workplace Ma... Sep 22, 2005
As such, the court held that plaintiffs' evidence was sufficient to establish a prima facie case of sexual harassment under the appropriate legal standard and in turn, reversed the judgment rendered by the Court of Appeals. This case gives reason for employers to be more cognizant as to whether such circumstances exist in their workplace
Sedgwick: September 2005 Sep 01, 2005
Greenberg Traurig: Third Circuit Recognizes Importance of Lender Reliance ... Sep 01, 2005
In a recent opinion, the Third Circuit addressed the equitable remedy of substantive consolidation in bankruptcy cases. In applying the above-referenced standard, the Third Circuit concluded that substantive consolidation in Owens Corning was not warranted based on the facts of the case: To begin, the Banks did the “deal world” equivalent of “Lending 101.” They loaned $2 billion to OCD and enhanced the credit of that unsecured loan indirectly by subsidiary guarantees covering less than half the
Gibbons: The New Jersey Appellate Division Addresses the Applica... Aug 30, 2005
Gibbons: Employment & Labor Law Alert Aug 30, 2005
Our first article discusses a case in which the Appellate Division sets forth the parameters of an employer's liability for negligent misrepresentation when communicating information about a former employee to a prospective or actual new employer. The case is highly significant in terms of how employers should deal with requests for references
Gibson Dunn: Third Circuit Clarifies and Tightens the Legal Standard... Aug 29, 2005
Background: For decades, substantive consolidation has been one of several tools available to courts or parties in a bankruptcy case for use to redress harms caused by a failure to observe corporate separateness or the formalities of intercompany relationships. In recent practice, however, substantive consolidation has been used in a wider context: for the convenience of the court or the debtors in administering the chapter 11 cases, thus avoiding the need for multiple plans of reorganization
Dinsmore & Shohl: Prescription Contraceptive Exclusion and the Pregnancy ... Aug 19, 2005
This was enough for the plaintiffs to state a claim for disparate treatment under Title VII. The court also found that even if the exclusion of prescription contraceptives is gender neutral, it has a disparate impact on women, and thus, the plaintiffs established a prima facie case of disparate impact under Title VII as well. In re Union Pacific Railroad Employment Practices Litigation In holding that Union Pacific's policy of excluding prescription contraceptives and related outpatient services
Gibson Dunn: Recent California Supreme Court Employment News Aug 18, 2005
The Court found that Plaintiffs had established a prima facie case of sexual harassment, emphasizing that much more than an isolated act of favoritism towards a paramour had occurred. Other Cases to Watch The California Supreme Court has granted review of a number of decisions of interest to California employers
Dorsey & Whitney: Dorsey offers Sexual Harassment Training In Light Of Ca... Jul 29, 2005
The Miller Court found this evidence of sexual favoritism sufficient to state a prima facie case of sexual harassment. Miller details widespread favoritism ensuing from the warden’s affairs with no less than three women, including repeated promotion of the warden’s ‘playmates’ over those more qualified, the favored women’s boasts of their influence over the warden, and unchecked harassing behavior by the paramours against those who complained about favoritism
Dinsmore & Shohl: Pre-Appeal Brief Conference Jul 06, 2005
The request should specify the clear error in the Examiner’s rejection or the omission of essential elements required to establish a prima facie case. In this case, the Panel may also provide a proposed amendment with suggested changes to make the claims allowable
Sills Cummis: 2005g July Alert.pdf Jul 01, 2005
It determined that Quintana had established a prima facie case of disparate treatment discrimination, but dismissed the claim because Quintana had. With respect to the retaliation claim, the Court determined that Quintana had failed to establish a prima facie case
Goodwin Procter: Law Breakfast Seminar: Recent Legal Developments Affect... Jun 23, 2005
Holding: Disparate impact can apply to age discrimination cases, but with a different test. Primary difference from Title VII standard: "Reasonable Factors Other than Age." · Court's Application of Holding to Pay Practices: Giving larger raises to more junior employees to bring pay in line with pay scales of competing employers was based on a "reasonable factor other than age."
Gibbons: The N.J. Appellate Division Rules that Mandatory Drug T... May 11, 2005
Gibbons, Del Deo, Dolan, Griffinger ione Articles The N.J. Appellate Division Rules that Mandatory Drug Testing of Job Applicants is Lawful By Richard S. Zackin Introduction In a case of first impression, the New Jersey Appellate Division has rejected a challenge to an employer's requirement that all job offers be conditioned on the job applicant's passing a drug test. The case is also significant on the issue of "pretext" in discrimination cases
Sills Cummis: 2005e May Alert.pdf May 01, 2005
...n a case of first impression, the Appellate Division of the New Jersey Superior Court recently rejected the whistleblower claim of a healthcare professional who asserted that he had been subjected to retaliation for raising concerns regarding the operation of his medical department. require a healthcare professional to meet the same standard for a prima facie case as any other claimant under CEPA: proof that he had a reasonable basis to believe that the practices complained of violate some law,
Kilpatrick Stockton: STRATEGIES FOR AVOIDING AND OVERCOMING DESCRIPTIVE OBJE... Apr 28, 2005
Filing Applications for Descriptive Marks In many cases the descriptiveness battle is lost at the time of filing of the application. The burden rests initially with the examining attorney to make a prima facie case of descriptiveness
Seyfarth Shaw: A Brave New World For Federal Contractors - Are You Pre... Mar 28, 2005
Dorsey & Whitney: Financial Services Employment Law Update Mar 16, 2005
To the extent that the district court in this case required Strate both to disprove entirely the Bank's proffered explanation and adduce evidence of unlawful discrimination, the court of appeals reversed. In particular, the bank pointed to conduct by Welch prior to his termination, such as insisting on tape recording discussions with his supervisors, that had eroded the trust necessary for the position of CFO. The ALJ observed that such enmity and distrust are not unusual in a whistleblowing
McDermott: Fair Is Fair: Supreme Court Rules In KP Permanent Make-... Feb 14, 2005
The court then cited three prior cases for the proposition that a classic fair-use defense requires a likelihood-ofconfusion analysis: Cairns v. Franklin Mint Co.,6 Transgo Inc. v. Ajac Transmission Parts Corp.,7 and Lindy Pen Co. v. Bic Pen Co.8 Under the appeals court's reading of Section 1115(b)(4), the fair-use analysis occurs at the same time as the likelihood-of-confusion analysis. According to the court, a defendant cannot claim fair use if the plaintiff has made a prima facie showing
McDermott: Fair is Fair: Trademark Fair Use Defense Does Not Requi... Dec 10, 2004
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., Case No. 03-409 (decided December 8, 2004). The common law s tolerance of a certain degree of confusion on the part of consumers followed form the very fact that in cases like this one an originally descriptive term was selected to be used as a mark, not to mention the undesirability of allowing anyone to obtain a complete monopoly on use of a descriptive term simply by grabbing it first
Pepper Hamilton: Circuit Court Update Highlighting recent significant ca... Dec 08, 2004
Law Firm of Pepper Hamilton LLP | Publications @import "style.css"; -- Register/Login Publications Circuit Court Update 12/08/2004 Highlighting Recent Significant Cases Involving Commercial Litigation, ERISA and Employment Litigation, and Health Effects Litigation UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT CONTRACT LAW IMPLIED DISTRIBUTION AGREEMENT King of Prussia Equipment Corp. v. Power Curbers, Inc., No. 03-4639 (Scirica, J.) (also on panel: Fisher and Greenberg) (filed: November
Jones Day: Lenders Feel the Sting of Substantive Consolidation Dec 01, 2004
Addressing the second factor, the Second Circuit observed as follows:[E]ntanglement of the debtors' affairs involves cases in which there has been a commingling of two firms' assets and business functions. These and other creditor interests were represented during the case by an official unsecured creditors’ committee, a committee or sub-committee representing bondholders and trade creditors, an official committee of asbestos claimants and a legal representative for future claimants
Lane Powell: Washington Consumer Protection Act (CPA) Oct 29, 2004
...which is virtually identical to Rule 23 of the FRCP. There have been a number of reported class action cases involving the CPA. For example, Whitaker v. Spiegel, Inc., 95 Wn. Numerous class action cases have been certified against insurers alleging CPA violations
Brown Raysman: 30 Years of ?Equal Credit? (PDF) Sep 15, 2004
This statutory void led many courts deciding credit discrimination cases to resort to a methodology utilized by the courts in the employment discrimination context, as enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The `McDonnell Douglas' Methodology In 1973, the United States Supreme Court set forth the elements that a private, non-class action claimant must prove in order to establish a prima facie cause of action under Title VII of the Civil Rights Act of 1964 alleging
Seyfarth Shaw: California Labor & Employment Law Update Sep 01, 2004
While sexual harassment claims have been allowed to proceed if they do not involve the church's constitutionally protected prerogative to choose its clergy, the court in this case determined that the plaintiff's claim was barred because it was directly related to the employment relationship between church and minister. The Ninth Circuit reversed and remanded, concluding that plaintiff had established a prima facie case of retaliation since she had engaged in protected opposition activity
Brown Raysman: Copyright and File-Sharing: Identifying Anonymous Defen... Jul 13, 2004
In at least fourteen cases since January 2004, the music industry has simultaneously filed complaints against numerous John Does, motions for leave to take immediate discovery, and declarations in support of the immediate discovery motions. 8 In response to music industry filings, several courts have ordered that the industry's John Doe cases, seeking permissive joinder of anonymous defendants, must be severed because the injuries alleged by rights holders do not result from the "same
Arnold & Porter: The Trustee's Power to Avoid Fradulent Transfers (... May 01, 2004
Case law history dating back to the 17th Century continues to be relevant. Indeed, current statutes can best be understood as crystallizing a lot of this long case-law history
Pepper Hamilton: Fair Lending and Auto Finance: Is There a Case for Disc... Apr 06, 2004
Law Firm of Pepper Hamilton LLP | Publications @import "style.css"; -- Register/Login Publications Fair Lending and Auto Finance: Is There a Case for Discrimination. The legal theory advanced in each of the cases is identical
Arnold & Porter: Preference Avoidance (PDF: 47.0 KB) Apr 01, 2004
To understand preference law, turn your Code to §547(b), which sets forth the prima facie case (subsection (a) includes a couple of definitions). If your case meets the affirmative elements of a preference under subsection (b), then you look at whether any of the exceptions, which are listed in §547(c), apply
Arnold & Porter: Overview of Avoidance Actions (PDF: 51.4 KB) Mar 01, 2004
The Supreme Court got this point interestingly wrong in a case decided nearly a century or so ago, just after the beginning of our modern bankruptcy law. The case is York Manufacturing Co. v. Cassell, 201 S.Ct
Seyfarth Shaw: Supreme Court Rules That Neutral Employment Policy May ... Dec 04, 2003
It held that Hernandez had made out a prima facie case, thus obliging Hughes to present a legitimate, non-discriminatory reason for its failure to rehire him. The Supreme Courts Decision The Supreme Court reversed, holding that the Ninth Circuit had improperly applied disparate impact analysis in a disparate treatment case
Gibbons: Evaluating a Discrimination Claim Where a Plaintiff Pre... Nov 26, 2003
In finding that individual's failure to adequately reconcile the two contrary positions was fatal to his prima facie showing of age discrimination, the Court of Appeals upheld the District Court's decision, applying the doctrine of judicial estoppel, and holding that the two positions were irreconcilably inconsistent. Further, the Court found that where a party has sought Social Security benefits and subsequently brings an action for discrimination, a court must apply the case-by-case analysis
Seyfarth Shaw: California Labor & Employment Law Update Oct 31, 2003
The federal district court granted the employer's summary judgment motion because it concluded that eating was not a major life activity under the ADA. The Ninth Circuit reversed and held that a case-by-case inquiry is necessary to determine whether eating is a major life activity. The federal court held that the plaintiff established a prima facie case of retaliation because there was sufficient evidence for the jury to conclude that the supervisor knew that the plaintiff complained about him
Gibbons: Supreme Court Clarifies Prima Facie Burden to Whistlebl... Oct 09, 2003
Gibbons, Del Deo, Dolan, Griffinger ione Articles Supreme Court Clarifies Prima Facie Burden to Whistleblowers By Kelly Ann Guariglia In a unanimous decision, the New Jersey Supreme Court recently clarified the burden on employees in litigation under the Conscientious Employee Protection Act, N.J.S.A. Section 34:19-1 et seq. Although Dzwonar v. McDevitt, 177 N.J. 451 (August 12, 2003), does not dramatically alter employees' burden in establishing prima facie cases, it does allow cases to be
Latham & Watkins: Civil Cartel Litigation in Europe: The Changing Landsca... Jun 01, 2003
The recent preliminary ruling in the Provimi case cleared the way for foreign claimants to commence civil litigation in England against European cartel members. Marc HANSEN, Brian SHER and Melissa CACCIOTTI analyse the features of the case and consider its implications
Gibbons: Crying Wolf: Employer May Fire Employees Who Allegedly ... May 30, 2003
The pertinent facts in the case read as follows: Plaintiff Renner-Wallace began working for Cessna in 1998. The Court granted summary judgment on Renner-Wallace's sexual harassment claim finding that she failed to make out a prima facie showing of a hostile work environment
Baker Botts: Lessons From Recent Findings of Inequitable Conduct May 28, 2003
Most recently, the Federal Circuit addressed inequitable conduct in the case of Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 2003 WL 1876574 (Fed. The article also was included in search reports generated by the same patent examiner in the two U.S. cases, but never officially made of record (e
Latham & Watkins: Damages claims against European vitamins cartel members... May 18, 2003
On 28 April 2003, the English High Court gave a preliminary ruling in the Provimi case. 2 The case is significant in that it clears potential jurisdictional hurdles for damages claims against cartel members and shows how an English court can assert jurisdiction over claims between entities from other European States in respect of products purchased at inflated cartel prices across Europe
Littler Mendelson: May 2003 May 01, 2003
A L i t t l e r M e n d e l s o n N e w s l e t t e r F o r E d u c a t i o n M a n a g e m e n t CASES. In this case, the teachers alleged that the unions failed to provide adequate explanations because they were not provided with audited financial statements
Morgan Lewis: Recent Developments In U.S. Antitrust Merger Review and... Apr 16, 2003
This White Paper summarizes the agencies' position in the FTC's Puerto Rico supermarkets case, the FTC's challenge of pickle and ice cream mergers, and the DOJ's challenge of a merger involving Spanishlanguage radio. Moreover, the fact that a proposed transaction does not have a competitive effect (as is the case with most transactions that require an HSR filing) is not relevant when considering whether certain conduct violates the HSR Act
McDermott: Massachusetts Announces New Test in Age Discrimination ... Mar 24, 2003
McDermott - Newsletters - Massachusetts Announces New Test in Age Discrimination Cases if (document. selectedIndex=0; } Please select a language: English Italian German PUBLICATIONS NEWSLETTERS MASSACHUSETTS ANNOUNCES NEW TEST IN AGE DISCRIMINATION CASES March 24, 2003 In positive news for employers, the Massachusetts Supreme Judicial Court (SJC) recently held that in order to establish a prima facie case of age discrimination, there must be an age difference of at least five years between a
McDermott: Massachusetts Announces New Test in Age Discrimination ... Mar 24, 2003
McDermott - Newsletters - Massachusetts Announces New Test in Age Discrimination Cases if (document. selectedIndex=0; } Please select a language: English Italian German PUBLICATIONS NEWSLETTERS MASSACHUSETTS ANNOUNCES NEW TEST IN AGE DISCRIMINATION CASES March 24, 2003 In positive news for employers, the Massachusetts Supreme Judicial Court (SJC) recently held that in order to establish a prima facie case of age discrimination, there must be an age difference of at least five years between a
Finnegan Henderson: Experimental-Use Defense Does Not Automatically Shield ... Mar 01, 2003
Until the recent case of Madey v. Duke University, 307 F.3d 1351 (Fed. The defense may apply in the latter case, but not in the former
Powell Goldstein: Making a Prima Facie Case for Solemn Form Probate after... Feb 05, 2003
Dykema Gossett: Employment Discrimination Cases: On the Rise and Evolvi... Feb 01, 2003
Employment Discrimination Cases: On the Rise and Evolving. Employment Discrimination Cases: On the Rise and Evolving Employment Discrimination Cases are on the Rise
Finnegan Henderson: Federal Circuit Newsletter Feb 01, 2003
8 APPLICANT FAILED TO DEMONSTRATE CRITICALITY OF CLAIMED RANGE TO OVERCOME OBVIOUSNESS A prior art reference that discloses a range encompassing a narrower claimed range is sufficient to show a prima facie case of obviousness. 9 COURT UPHOLDS PRELIMINARY INJUNCTION IN SUNGLASSES CASE Claim limitation "vivid colored appearance" for a sunglass lens is sufficiently clear when interpreted in light of the specification
Miller & Chevalier: Advocacy Before World Trade Organization Dispute Settle... Feb 01, 2003
Advocacy Before World Trade Organization Dispute Settlement Panels in Trade Remedy Cases. This article is written primarily for government and private attorneys who represent parties (including third parties) before WTO dispute settlement Panels in trade remedy cases
Holland & Knight: 29-Jan-03 Jan 29, 2003
Robert J. Crohan Jr. Massachusetts Adopts Bright-Line Age-Disparity Test The Massachusetts Supreme Judicial Court has held that an age disparity of less than five years, by itself, is too insignificant to support a prima facie case of age discrimination. In Knight v. Avon Products, Inc., the Court concluded that the age difference between the 45-year-old plaintiff and her 43-year-old replacement was too insignificant, standing alone, to support an inference of age discrimination in an indirect
Gibbons: Damages Available Under Law Against Discrimination and ... Jan 08, 2003
Specifically, the Appellate Division found that Plaintiff had made out a prima facie case of handicap discrimination, under the modified test it constructed: Plaintiff had shown that she was handicapped, was performing her job appropriately, was subjected to adverse employment action, and could show a causal connection between adverse employment action and her handicap. The Court also concluded that Plaintiff had not only established a prima facie case that she worked without compensation, but
White & Case: December 2002 Dec 01, 2002
Hogan & Hartson: "Liability from Hazardous Materials Transportation... Dec 01, 2002
The courts have applied widely varying theories in assigning liability, and that variation makes it hard to predict what will be the outcome of these cases. THE COURTS HAVE APPLIED WIDELY VARYING THEORIES IN ASSIGNING LIABILITY, AND THAT VARIATION MAKES IT HARD TO PREDICT WHAT WILL BE THE OUTCOME OF THESE CASES.
Holland & Knight: 8-Nov-02 Nov 08, 2002
Robert J. Crohan Jr. AGE DISCRIMINATION (ADEA) Discharge because of Animus toward Employer, Not Age The Seventh Circuit Court of Appeals (IL., IN., WI.) affirmed a district court's granting of summary judgment in favor of the employer stating that even if the employee could establish a prima facie case of age discrimination, he had not offered enough evidence that the defendant's stated reason for firing him, i.e., inadequate performance, was pretextual. "As we have said numerous times,
Jones Day: New Concern to Publicly Held Companies: Protection of W... Nov 01, 2002
The employee has the burden of making a prima facie showing to the DOL that his or her protected conduct was "a contributing factor" in the employer's action(s). For one thing, the employee must demonstrate a prima facie case of retaliation causally connected to the employee's engagement in action protected by the statute
Jones Day: New Concern to Publicly Held Companies: Protection of W... Nov 01, 2002
The employee has the burden of making a prima facie showing to the DOL that his or her protected conduct was "a contributing factor" in the employer's action(s). For one thing, the employee must demonstrate a prima facie case of retaliation causally connected to the employee's engagement in action protected by the statute
Seyfarth Shaw: California Labor & Employment Law Update Nov 01, 2002
The court ruled that his discrimination claim failed because neither of the acts constituted an adverse employment action, necessary to establish a prima facie case. It was not a reprimand, suspension, or demotion, but was only used to inform the employee that he did something wrong
Schnader: A Photo is Worth Thousands: Use of Stock Broker Photo i... Oct 18, 2002
McCann also specified that the man should have a red shirt, shorts, sandals and a briefcase, and be surrounded by commuters in. In ruling that the case should proceed to trial on the copyright infringement claim, the court found there was a genuine issue whether the photo used by McCann copied original elements of the photographer's work
Gibbons: Eighth Circuit Rejects Employees Retaliation Claim for ... Sep 30, 2002
As was the case in Smith v. Allen Health Systems, Inc., _ F.3d _, 2002 WL 31015648 (8th Cir. The Standard for a Retaliation Claim Using a variant of the McDonnell Douglas test, the Court held that to establish a prima facie case of retaliation under the FMLA, Smith had to show (1) that she exercised her rights afforded by the act, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her exercise of rights and the adverse action
Dykema Gossett: Recent Corporate Scandals Result in New Protections for... Sep 01, 2002
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the discharge. In most WPA cases, the court must consider whether the plaintiff engaged in "protected activity." In Michigan, two classes of employees are said to have engaged in "protected activity"-- those who "report" and those who are "about to report" a violation or suspected violation of law to a qualifying government agency
Gibbons: Sixth Circuit Allows Age Claim by Younger Workers for R... Aug 30, 2002
" Consolidated Coin has generally been applied to prohibit "reverse discrimination" claims under the ADEA. The concurring opinion in Cline distinguishes Consolidated Coin on the basis that Cline is a direct evidence case that does not rely upon the prima facie test, and on the basis that the Supreme Court was not addressing "reverse discrimination" in Consolidated Coin. The concurring opinion recognizes that the Court of Appeals decision in Cline is counterintuitive, but the concurring opinion
Gibbons: Second Circuit Rules Summary Judgment Still Available t... Aug 19, 2002
Gibbons, Del Deo, Dolan, Griffinger ione Articles Second Circuit Rules Summary Judgment Still Available to Defendants After Plaintiff Establishes Prima Facie Case By The Employment and Labor Law Department In June 2000, the Supreme Court, in Reeves v. Sanderson Plumbing, 120 S.Ct. The Court held that judges should not rely on this per se rule when deciding the intent of an employer’s personnel decision in employment discrimination cases
Gibbons: New York Federal Court Holds Employee Perceived as Disa... Jul 30, 2002
Gibbons, Del Deo, Dolan, Griffinger ione Articles New York Federal Court Holds Employee Perceived as Disabled May Be Protected Under the ADA and Entitled to Reasonable Accommodation By The Employment and Labor Law Department In the recent case, Jacques v. DiMarzio, Inc., the U.S. District Court for the Eastern District of New York denied the employer DiMarzio's motion for summary judgment holding that a genuine issue of disputed fact existed concerning Jacques' claim of disability discrimination
McGlinchey Stafford: In the Courts (religious/racial/pregnancy discriminatio... Jul 01, 2002
The couple filed suit in federal court, and the company moved to dismiss the complaints, arguing that the wife failed to establish a prima facie case of harassment or discrimination and that the husband failed to exhaust his administrative remedies before going to court. v The U.S. Supreme Court ruled in the National Railroad Passenger Corp. v. Morgan case on the continuing violations doctrine, which questions whether a jury can look at all the evidence surrounding a prolonged case of harassment
Allen & Overy: Litigation - July 2002 Jul 01, 2002
The case arose from the publication by the defendant newspaper of a story about Ian Brady - one of the so-called "Moors murderers" - using information obtained via an intermediary from a source in the hospital where Mr Brady is held. In this case the wrongdoer was the employee at the hospital who abstracted, in breach of contract and in breach of confidence, information about Mr Brady from his medical records
Weil: Settlement Payment Exception Shields Leveraged Buyout P... Jun 01, 2002
Property that was fraudulently transferred before the commencement of the bankruptcy case is recovered for the benefit of the debtor s creditors. made by or to a commodity broker, forward contract merchant, stockbroker, financial institution, or securities clearing agency, that is made before the commencement of this case may not be avoided pursuant to, among others, section 544 of the Bankruptcy Code
Morgan Lewis: Morgan Lewis on Labor and Employment May 31, 2002
The summer edition of MORGAN LEWIS ON LABOR YMENT is devoted to the important labor, employment and employee benefits cases decided by the U.S. Supreme Court during the Term that ended in June. Title VII expressly requires plaintiffs to file a charge with the EEOC within 300 (or in some cases 180) days "after the alleged unlawful employment practice occurred." Nonetheless, in the decision below, the Ninth Circuit had held that a plaintiff may sue on claims that would ordinarily be time-barred so
Manatt: E-Mail Service Has Arrived and Soon May Be Readily Acce... May 24, 2002
On appeal, the 9th Circuit upheld the-mail service order, noting that e-mail service "was proper -- that is, reasonably calculated to apprise [the defendant] of the pendency of the action and afford it an opportunity to respond" and, in this case, "the method of service most likely to reach [the defendant.]"The court also upheld service on the Florida courier, because the defendant directed its customers to send payments to that address, and on the attorney, because it was reasonably clear that
Groom Law Group: Erie County Retiree Health ADEA Litigation Settles -- B... Apr 30, 2002
In short, rather than an "upgrade" in the benefit structure for post-Medicare retirees, the court's finding of prima facie age discrimination resulted in a "downgrade" in the benefit structure for pre-Medicare retirees. The EEOC originally had endorsed the plaintiff-retirees' argument that Medicare-based differences in retiree health benefits make out a prima facie case of unlawful age discrimination
Morgan Lewis: Morgan Lewis on Complex Litigation Apr 30, 2002
This newsletter will explore a broad spectrum of topics, ranging from practice pointers and substantive legal developments in employment and other class-action litigation to legislative, regulatory and jurisprudential developments that may shape how and where large, procedurally complex cases are brought and resolved. In some states, like Florida, approximately 20 Title III cases are filed each week
Gibbons: NJ Supreme Court Addresses Obesity as Handicap Under Ne... Apr 02, 2002
Additionally, the Court concluded that the notion of reasonable accommodation is only relevant in a handicap discrimination case where the plaintiff either affirmatively pleads failure to accommodate as a cause of action, or where the employer defends a disparate treatment claim on the basis of plaintiff's inability to perform the job in question due to the handicap. Recognizing that neither was the situation in the Vicsik case, the Court held that instructing the jury on the issue of reasonable
Testa: Employer's Retaliatory Actions Prove Costly Apr 01, 2002
In reaching this conclusion, the Court demonstrated how employers can instill life into an otherwise meritless case. On CLS’s motion to dismiss the lawsuit, the Court rejected Alban-Davies’ age discrimination claim outright, ruling that although Alban-Davies had established a prima facie case of age discrimination, he had produced no evidence that cast a doubt on CLS’s asserted age-neutral justifications for denying him a bonus
Holland & Knight: 8-Mar-02 Mar 08, 2002
This case highlights the importance of considering ADA implications before terminating employees for objectionable workplace behavior. In resolving the split unfavorably from the employer’s vantage, the Court held that a complaint in an employment discrimination case does not have to contain specific facts that establish a prima facie case of discrimination under McDonnell Douglas, an earlier Supreme Court case that sets the evidentiary standard, not the pleading requirements, in such a case
Nossaman: Attorney General Admits Proposition 65 Abuses Will Spon... Feb 19, 2002
In several cases, the AG doubts that the "bounty hunter" actually investigated every business and location identified in the notice. Instead of a simple declaration, the Certificate of Merit may be required to address each element of the prima facie case contained in the complaint
Morgan Lewis: U.S. Supreme Court Sets Up Hurdle For Employers Seeking... Jan 31, 2002
26, 2002), complaints of employment discrimination cannot be dismissed solely for having failed to plead facts to satisfy each element of the McDonnell Douglas prima facie case. Consequently, although plaintiffs need not plead a prima facie case of discrimination, plaintiffs' bald statements asserting a valid claim of some type against the employer should not be sufficient
Morgan Lewis: U.S. Supreme Court Sets Up Hurdle For Employers Seeking... Jan 31, 2002
26, 2002), complaints of employment discrimination cannot be dismissed solely for having failed to plead facts to satisfy each element of the McDonnell Douglas prima facie case. Consequently, although plaintiffs need not plead a prima facie case of discrimination, plaintiffs' bald statements asserting a valid claim of some type against the employer should not be sufficient
McDermott: Federal Circuit Recognizes Prosecution Laches as Defens... Jan 01, 2002
While the opinion is sure to draw considerable attention from the patent bar due to the well-known patent portfolio involved in the case, the impact the decision will have on the future course of patent litigation is not clear. The plaintiffs in this case manufactured bar code scanners and related products
McDermott: Federal Circuit Recognizes Prosecution Laches as Defens... Jan 01, 2002
While the opinion is sure to draw considerable attention from the patent bar due to the well-known patent portfolio involved in the case, the impact the decision will have on the future course of patent litigation is not clear. The plaintiffs in this case manufactured bar code scanners and related products
Epstein Becker & Green: How to Keep a Firing from Backfiring Dec 31, 2001
The Employee’s "Prima Facie" Case Burden The employee may force the employer to articulate its reasons for selecting the plaintiff by establishing a prima facie case (sometimes called raising a presumption of illegal discriminatory intent) by showing: membership in a protected class (race, sex, age, etc. The Presumption of Illegality Disappears The prima facie presumption then disappears from the case and plaintiffs have the burden of proving they were terminated because they were protected
Thelen Reid: Energy Notes - Winter 2001 Dec 01, 2001
...gov. While using or submitting the work sheet is not mandatory, the new HSR Form Instructions urge parties filing HSR forms to use the work sheet and keep it in their files in case questions arise regarding the valuation of the transaction. These changes primarily involved the new "size of the transaction" threshold
Morgan Lewis: The California Supreme Court Extends the String of Gain... Nov 01, 2001
Factual Background of Guz v. Bechtel The case arose from a decision by Bechtel National, Inc. (BNI) to reduce operating costs by eliminating a management information department (BNI-MI) and transferring the workload to a different management information group under the umbrella of the same corporate parent (the San Francisco Regional Office Management Group (SFRO)). It focused closely not only on the language of "policies" that were denominated as such, but also on socalled "guidelines"
Nutter McClennen & Fish: Labor & Employment - Fall 2001 Oct 01, 2001
LIABILITY FOR DECADE OF SEXUAL HARRASMENT In Cuddyer v.The Stop Co. (SJC-08326, July 12, 2001),the Massachusetts Supreme Judicial Court (SJC) applies a broad interpretation of the "continuing violation doctrine" to sexual harassment cases arising under Chapter 151B, the state's antidiscrimination in employment statute. The trial judge dismissed the case, finding that all but two of Cuddyer's allegations were untimely, having occurred more than six months prior to the date of her MCAD charge
Weil: The Culpable Conduct Requirement In Control Person Clai... Sep 01, 2001
Replace Font Tag Business & Securities Litigator The Culpable Conduct Requirement In Control Person Claims September 2001 Download Newsletter By Richard L. Levine and Nader Mobargha The Securities Exchange Act of 1934 (the 1934 Act ) imposes joint and several liability on persons who control primary violators unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action. Beginning in the 1970 s, the
Clifford Chance: Default and Enforcement Provisions of Revised Art... Aug 02, 2001
King & Spalding: United States v. Microsoft: Court of Appeals Affirms Co... Jul 26, 2001
The Court remanded the case for further proceedings, including a hearing on remedy. The Court of Appeals reversed the district court's conclusion that Microsoft had attempted to monopolize the market for browsers, primarily because the district court had failed to define a relevant market within which Microsoft's prospects of gaining monopoly power in web browsers could be assessed
Epstein Becker & Green: The Preclusive Effect of Benefits-Related Admissions on... Jul 01, 2001
Drinker Biddle & Reath: Business Method Patent Litigation Jun 26, 2001
Claim Interpretation Our review of the few reported business method cases indicates that the legal exercise of claim interpretation will not be handled any differently by the courts (and particularly the Federal Circuit) just because the patent in question claims a business method. 1 The Federal Circuit has performed de novo claim interpretation analyses in its business method cases that are indistinguishable from that which it has performed in other cases
Nutter McClennen & Fish: Labor & Employment - June 2001 Jun 01, 2001
" In this case, Section XX of the contract prohibited discrimination on the basis of sex, and stated that the parties would "abide by all the requirements of Title VII of the Civil Rights Act of 1964. " The section also provided that unresolved grievances arising under that section were proper subjects for arbitration. The Court of Appeals concluded that "it is hard to imagine a waiver that would be more definite or absolute
Akin Gump: Show Me The Money: The EEOC's New Investigative Pr... Apr 01, 2001
9 Prima Facie Case: Appropriate Comparison. Initial Request for Information from the EEOC Depending on the case, this request may include, by way of example, the following
Sills Cummis: David W. Garland and Jill Turner Lever - Reduction in F... Mar 01, 2001
If there is no supporting documentation, the older employee will likely be able to establish a prima facie case of age discrimination by showing that he was let go while younger employees remained employed. In the example of the 55 year-old employee who was terminated as part of a RIF, if he is replaced a few months later by a 25 year-old employee, that may be sufficient to establish a prima facie case of age discrimination
Morgan Lewis: SEC Proposals on Selective Disclosure and Insider Tradi... Jan 31, 2001
The substantive law of insider trading in this country, unlike recently-enacted statutes in, for example, the United Kingdom and Germany, is judge-made case law which on several occasions has reached the United States Supreme Court. These cases basically stabilized the substantive law of insider trading, with some exceptions
Drinker Biddle & Reath: Antitrust Update Jan 30, 2001
Rather than take political heat for killing the case or settling for a limited remedy, the Bush Administration may well let the D.C. Circuit do most of its dirty work, and settle it only after the D.C. Circuit reverses and remands the case later this year. After all, even if the Justice Department were to drop its appeal or attempt to settle with Microsoft, there are state attorneys general still in the case that might pursue it
FROF: How School Districts Can Best Avoid Section 1983 Lawsui... Jan 17, 2001
McGlinchey Stafford: In the Courts (age discrimination; invasion of privacy;... Jan 01, 2001
The ADEA does not allow tort-based compensatory damages, the court said, noting that even if the suicide victim were still alive, he could not have obtained the type of compensatory damages sought by his widow under the ADEA. The court pointed out that in a 1995 U.S. Supreme Court case, Commissioner v. Schleier, it was determined that the ADEA provides no compensation for traditional personal injuries. The court ruled that the former employees had established a prima facie case of age
Nutter McClennen & Fish: Labor & Employment - Winter 2001 Jan 01, 2001
The employee in this case had a foot injury requiring surgery that would cause him to miss approximately three months of work. The Court found that the employee's foot injury was a "serious health condition" under FMLA and that the employee presented a prima facie case of retaliatory discharge based on the proximity in time between his request for leave under FMLA and his discharge
Thelen Reid & Priest: Dergulation in New York and California: A Study in Cont... Jan 01, 2001
...gov. While using or submitting the work sheet is not mandatory, the new HSR Form Instructions urge parties filing HSR forms to use the work sheet and keep it in their files in case questions arise regarding the valuation of the transaction. These changes primarily involved the new "size of the transaction" threshold
Thelen Reid & Priest: HSR Act Amendments Bring Regulatory Relief for Power Ac... Jan 01, 2001
...gov. While using or submitting the work sheet is not mandatory, the new HSR Form Instructions urge parties filing HSR forms to use the work sheet and keep it in their files in case questions arise regarding the valuation of the transaction. These changes primarily involved the new "size of the transaction" threshold
Thelen Reid & Priest: Leases Increasingly Used As a Financing Tool for Power ... Jan 01, 2001
...gov. While using or submitting the work sheet is not mandatory, the new HSR Form Instructions urge parties filing HSR forms to use the work sheet and keep it in their files in case questions arise regarding the valuation of the transaction. These changes primarily involved the new "size of the transaction" threshold
Seyfarth Shaw: Labor & Employment Law Report Dec 01, 2000
Even though some complaints may seem trivial or embarrassing, they should nonetheless be documented to provide employer support in case they eventually become the basis for the employee's termination. "New Affirmative Action Rules Affect Contractors" by Robert Nobile in the New York Law Journal, December 4, 2000 "Discretion and `Truelove' Collide in Wages Cases" by Peter A. Walker, MaraLouise Anzalone and H. Tor Christensen in the New York Law Journal, November 7, 2000
Seyfarth Shaw: Massachusetts Employment & Labor Law Report Dec 01, 2000
Although, to date, there is no reported case on the issue of genetic information discrimination in employment, the very broad definition of that term in the recent amendment to Chapter 151B provides another source of potential risk to employers. Although the Beaupre decision expands the pool of potential defendants in employment cases, the decision may prove useful to employers in preventing sexual harassment and discrimination in the workplace
Thelen Reid: Bechtel Wins Major Employment Law Decision Before Calif... Nov 13, 2000
The Superior Court in San Francisco granted Bechtel's motion for summary judgment, holding that Guz was an at-will employee, that he failed to present a prima facie case of age discrimination and that he was unable to rebut the employer's legitimate, nondiscriminatory business reason for his discharge. The Supreme Court decided 6 to 1 that Bechtel was entitled to summary judgment on Guz's FEHA age discrimination claim, finding that Guz could not even establish a prima facie case of
Drinker Biddle & Reath: The Reality Factor Nov 06, 2000
Although the case concerns a pretty old-fashioned, old-economy market, its outcome bears on new-economy merger activity. The court began by finding that the merger would greatly increase concentration in an already highly concentrated market and that the FTCís evidence on this point sufficed to establish a prima facie case of illegality under controlling Supreme Court precedent
Thelen Reid: Major Employment Law Decision for Long-Time Thelen Reid... Oct 25, 2000
Thelen Reid Report No. 42: Major Employment Law Decision Thelen Reid Report No. 42Major Employment Law Decision for Long-Time Thelen Reid Client© 2000 Thelen Reid & Priest LLPOctober 25, 2000On October 5, 2000, the California Supreme Court issued a landmark decision in a case that has been dubbed by commentators as "the most important employment decision" in the State in over a decade. The San Francisco Superior Court granted Thelen Reid's motion for summary judgment, holding that Guz was an
King & Spalding: The Litigation of Anti-Dumping Disputes before the Worl... Oct 17, 2000
In that case,which did not concernthe application of anti-dumping duties, the paneldetermined that any other view would undermine the obligation imposedupon Membersby Article 18. 4 of the AD Agreement, "is in each instancethe samematter..."31 At first, this language led the United Statesin the DRAMscaseto insistthat claims not identified in the written requestfor consultations could not be referredto a panelfor disposition22 Later in that samecase,the United Statesbacked away from this position
Weil: Supreme Court Admonishes Employers To Be Straight-Talke... Oct 01, 2000
The narrow issue directly addressed in Reeves was whether a plaintiff who makes out a so-called prima facie circumstantial case of discrimination and then offers probative evidence that an employer s stated non-discriminatory reason for its action is pretextual must also offer additional evidence of discriminatory motive in order to have the discrimination claim decided by a jury. In short, the Supreme Court ruled that the issue must be resolved by the District Courts on a case-by-case basis,
Michael Best & Friedrich: Management SolutionsSM Bulletin (Fall 2000) Oct 01, 2000
...-- Supreme Court Rejects "Pretext Plus" Standard of Proof in Cases of Intentional Employment Discrimination [click on title for full article] On June 12, the U.S. Supreme Court issued a unanimous decision reversing the Fifth Circuit in Reeves v. Sanderson Plumbing Products, Inc. and holding that a plaintiff who establishes a prima facie case of discrimination, and proves that the employer’s nondiscriminatory reason for its action was a pretext, need not produce any additional evidence to prove
Epstein Becker & Green: The Unfolding Microsoft Drama: Shattered Windows Sep 14, 2000
However, it will become apparent over the course of this Paper, that I think that the Division’s actions are consistent with the generally accepted proposition that it is preferable to maintain or restore competition – or, as in this case, to restore competition in the defined market of "Intel-Compatible PC Operating Systems Software" and to maintain competition in the Internet browser software market. In such cases, the monopolist’s response tends to be predictable based on its view of the
Quinn Emanuel: Trial Attorney of the Month: Dominic Surprenant Sep 01, 2000
Yet expert economic testimony is offered routinely in business cases. discusses what an effective economist can do for a case -- and how
King & Spalding: The Litigation of Anti-Dumping Disputes Before the Worl... Sep 01, 2000
For example, in 1998, the author was lead counsel to the United States in the anti-dumping case brought by Korea involving trade in certain semiconductors. WTO's Unique System of Settling Disputes Nears 200 Cases in 2000, WT/Press/180, June 5, 2000
O'Melveny & Myers: Employment News Sep 01, 2000
A PUBLICATION OF THE LABOR AND EMPLOYMENT LAW DEPARTMENT OF O'MELVENY LLP California Supreme Court Issues Important Case on Employment Policies. In this case, the policy lasted for approximately six years
Nutter McClennen & Fish: Labor & Employment - September 2000 Sep 01, 2000
SJC Clarifies "Pretext Only" Rule The Supreme Judicial Court recently clarified the long-standing confusion surrounding the "pretext only" analysis applied in discrimination cases. Relying on the emphatic "pretext only" language set forth in the 1995 case of Blare v. Husky Injection Molding Sys
Dorsey & Whitney: SEC Adopts New Insider Trading Rules Aug 21, 2000
Rule 10b5-1: "Use" versus "Possession" In the past, the SEC has maintained in enforcement cases that a trader may be liable under Exchange Act Rule 10b-5 (the principal insider trading prohibition) for trading while in "knowing possession" of material nonpublic information and that it is not necessary for the government also to prove that the trader "used" the information for trading. 1998), the Eleventh Circuit held, in a civil enforcement action, that "use" is the ultimate issue, but that
Mayer Brown: Labor and Employment Newsletter - Affirmative Action Pr... Jul 23, 2000
1996), the Court of Appeals for the Seventh Circuit ruled that a plaintiff may establish a prima facie case of discrimination under Title VII of the Civil Rights Act of 1964 even without showing that she was re-placed by a person outside the protected class. In so holding, the Seventh Circuit followed the recent U.S. Supreme Court case of O'Connor v. Consolidated Coin Caterers Corp., 116 S. Ct
Littler Mendelson: Supreme Court of the United States Clarifies Standards ... Jul 01, 2000
The case of Reeves v. Sanderson Plumbing Products, Inc., ___S. Ct. (2000), may apply to all discrimination cases, and not just those under the Age Discrimination in Employment Act (ADEA)
Wyatt: Summer 2000 Jul 01, 2000
"Fairness Ordinances" Steps Toward Broadening The Scope Of Civil Rights Laws Pages 1 - 3 Religion In The Workplace Pages 4 - 5 Recent Cases Pages 6 - 7. While this case did not directly deal with discrimination or harassment based on sexual orientation, it has been viewed as another step toward broadening the scope of civil rights
Davis Wright Tremaine: NLRB Extends Weingarten Rights to Nonunion Employers Jul 01, 2000
The Weingarten case established the principle that union employees have the right to the presence of a union representative (like a shop steward) at meetings held with their employer for the purpose of investigating workplace issues or situations which might ultimately result in discipline. Epilepsy Foundation of N.E. Ohio The latest case arose out of the efforts of two employees at the Epilepsy Foundation of Northeast Ohio who had apparent problems with their immediate supervisor
Davis Wright Tremaine: Employees May Lose Exempt Status if Employers Enforce 4... Jul 01, 2000
The Weingarten case established the principle that union employees have the right to the presence of a union representative (like a shop steward) at meetings held with their employer for the purpose of investigating workplace issues or situations which might ultimately result in discipline. Epilepsy Foundation of N.E. Ohio The latest case arose out of the efforts of two employees at the Epilepsy Foundation of Northeast Ohio who had apparent problems with their immediate supervisor
Davis Wright Tremaine: Ninth Circuit Rejects "Direct Threat" to Disa... Jul 01, 2000
The Weingarten case established the principle that union employees have the right to the presence of a union representative (like a shop steward) at meetings held with their employer for the purpose of investigating workplace issues or situations which might ultimately result in discipline. Epilepsy Foundation of N.E. Ohio The latest case arose out of the efforts of two employees at the Epilepsy Foundation of Northeast Ohio who had apparent problems with their immediate supervisor
Davis Wright Tremaine: Supreme Court Clarifies Factfinders Ability to Infer In... Jul 01, 2000
The Weingarten case established the principle that union employees have the right to the presence of a union representative (like a shop steward) at meetings held with their employer for the purpose of investigating workplace issues or situations which might ultimately result in discipline. Epilepsy Foundation of N.E. Ohio The latest case arose out of the efforts of two employees at the Epilepsy Foundation of Northeast Ohio who had apparent problems with their immediate supervisor
Davis Wright Tremaine: Supreme Court Takes on Erisa Issues Jul 01, 2000
The Weingarten case established the principle that union employees have the right to the presence of a union representative (like a shop steward) at meetings held with their employer for the purpose of investigating workplace issues or situations which might ultimately result in discipline. Epilepsy Foundation of N.E. Ohio The latest case arose out of the efforts of two employees at the Epilepsy Foundation of Northeast Ohio who had apparent problems with their immediate supervisor
Weil: Defamation Claims By Fired Employees Jul 01, 2000
Despite employers strong track record in defeating defamation claims, in two cases decided earlier this year, federal courts in New York ruled for plaintiffs on defamation claims against their former employers. In this column, we discuss the law of qualified privilege as a defense to employees defamation claims and analyze how these privileges were applied in the Boyd and Acciardo cases
Baker Botts: New U.S. Supreme Court Decision Is Bad News for Employe... Jun 20, 2000
Although Reeves was an age discrimination case, its impact will be felt across all types of employment discrimination cases. Reeves presented evidence of a prima facie case of discrimination and evidence that the employer's reason for firing him was not true
Coudert Brothers: FAIR-USE DEFENSE APPLIES IN AFTERMARKET SITUATIONS May 01, 2000
2000 NLP IP Company In the typical trademark infringement case, the plaintiff accuses the junior trademark user of employing a confusingly similar word, name, symbol or device to identify and distinguish goods or services and to indicate their source. 1 In the typical case, the defendant has no excuse for using, without consent, the plaintiff s valid and senior mark
King & Spalding: Price Waterhouse: Alive and Well Under the Age Discrimi... Feb 01, 2000
The courts, therefore, have been left to interpret congressional silence with respect to the ADEA's substantive provisions, such as the applicability of Price Waterhouse v. Hopkins,6 a Supreme Court case overruled in part by the 1991 amendments to Title VII, in "mixed-motive" discrimination cases. The authors of this article argue that Price Waterhouse still applies to ADEA cases despite the fact that the Civil Rights Act of 1991 overruled parts of that decision as applied to Title VII. The
Paul Weiss: Second Circuit Review: Insurance Regulation Under the A... Jan 26, 2000
Thus, the court discerned prima facie evidence from the text of Title III that the legislative ban on discrimination in a "public accommodation" comprehends insurers' underwriting determinations. The court did acknowledge, however, that the "safe harbor" provision and "subterfuge clause" of § 501(c) do add an element to the plaintiff's prima facie case, a burden that requires plaintiffs to plead a violation of state law or other subterfuge by the defendant
Finnegan Henderson: Trade Media Holdings Ltd. v. Huang & Assocs. Jan 01, 2000
Second, the court found that plaintiff established a prima facie case of unfair competition under Section 43(a) of the Lanham Act. Third, the court rejected plaintiff’s dilution claim because plaintiff failed to establish as a matter of law that its ASIAN SOURCES mark was famous
Shaw Pittman: Changing Workplace Dec 01, 1999
A prohibited personnel action includes, but is not limited to, actual, threatened or recommended termination, suspension, demotion or reprimand; reassignment; referral for psychiatric or psychological counseling; failure to hire or promote or take other favorable personnel action; or retaliation in any other manner. In Ms. Hagadorn s case, the court found confusing the various pay documents submitted by the parties
Buchalter Nemer: Sexual Harassment in the Workplace -- Points and Proced... Dec 01, 1999
...pec="";//ERROR CODES //INSERT CUSTOM EVENTS //END EDITABLE SECTION Sexual Harassment in the Workplace -- Points and Procedures Points & Authorities, Winter, 1999By Amy L. Rubinfeld, Shareholder & Kevin C. Conlin, AssociateBuchalter, Nemer, Fields er Two recent Supreme Court cases which sought to expand employer liability for sexual harassment in the workplace should serve to remind employers of the continuing importance of minimizing the occurrence of such harassment. xiv] FEDERAL LAW: TITLE VII
Morgan Lewis: Class Actions Litigation Comparable Worth II and Collec... Oct 01, 1999
As the Court of Appeals for the Ninth Circuit has explained: "The comparable worth theory . . . postulates that sexbased wage discrimination exists if employees in job classifications occupied primarily by women are paid less than employees in job classifications filled primarily by men, if the jobs are of equal value to the employer, though otherwise dissimilar." AFSCME v. State of Washington, 770 F.2d 1401, 1404 (9th Cir. " Lambert, 10 F.3d at 56. See also Stopka v. Alliance of Am. Insurers,
Finnegan Henderson: Federal Circuit Newsletter Aug 01, 1999
FEDERAL CIRCUIT PRECEDENT CONTROLS AWARD OF ATTORNEY FEES Baseless assertions of willful infringement and resistance to imposition of collateral estoppel should be considered in determining whether a case is exceptional. 8 LOSER OF PRIORITY IN ONE CASE CAN CONTEST PRIORITY IN ANOTHER CASE A patent applicant that prevails in an interference proceeding before the Board of Patent Appeals and Interferences based on the constructive reduction to practice represented by its patent application, may
Akin Gump: Discrimination by Association Jul 28, 1999
Infrequently cited in the case law over the years, the association provision provides that an employer may violate the statute by "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified5 individual is known to have a relationship or association.". This includes circumstances where, as in the Dollinger case, the plaintiff alleged that he was denied promotions based on his unspecified "association
Weil: Retaliation: A Potent Claim in Discrimination Litigatio... Jul 01, 1999
2# Last year federal and state courts in New York similarly reported 115 cases that included a claim of retaliation. First, the plaintiff must make out a prima facie case of retaliation
Miller & Chevalier: ERISA and Benefits Alert - Various Jul 01, 1999
In an effort to settle these cases, the IRS has announced a national settlement program in accordance with which these cases will be settled on a 50/50 split at the examination level. In deciding whether to participate in this program, companies should take into consideration the extent to which their case is likely to be viewed more favorably at Appeals and whether the statute of limitations would permit the IRS to MILLER LIER
Morgan Lewis: Using the Eichleay Formula to Recover Unabsorbed Overhe... Jun 01, 1999
In the 1998 case of West v. All State Boiler, the Federal Circuit reviewed and summarized several of its past Eichleay decisions and clarified misleading language that had influenced the court s decision in Satellite Electric. The current formulation of the elements of an Eichleay recovery goes like this: in order to establish a prima facie case of entitlement to unabsorbed overhead using the Eichleay formula, the contractor must show that: (1) the Government caused a delay that requires the
Morgan Lewis: Supreme Court Ruling in California Dental Association v... Jun 01, 1999
In perhaps the most anticipated antitrust case of this term, the Supreme Court, in a 5-4 decision over the strong dissent of Justice Breyer, vacated and remanded the Ninth Circuit's decision in California Dental Association v. FTC, ___ U.S. ___, 1999 US LEXIS 3606 (May 24, 1999). The Court concluded that issues raised in this case "required a more extended examination of the possible factual underpinnings" of the advertising restraints in question
Davis Graham & Stubbs: Coming Full CERCLA: An Update on Superfund Developments Jun 01, 1999
This state of affairs leaves practitioners and potentially responsible parties to track the case law and administrative developments as best they can in an effort to avoid CERCLA's expansive liability net in their future dealings. Although the question of whether a PRP may bring a joint and several cost recovery action or is limited to an action for several-only contribution is essentially settled, the issue still arises in cases where the private CERCLA plaintiff asserts innocence with respect
Morgan Lewis: Making Sense of Environmental Justice Jun 01, 1999
The case histories provided by residents in the area of disease and death overwhelmed statistics showing weak or nonexistent correlations between illnesses and the location of TCE-laced water in Tucson. In 1998, the United States Supreme Court agreed to review its first environmental justice case
Morgan Lewis: Religious Discrimination in the Workplace Jun 01, 1999
Friedman, Bruce, and Sutherland, Daniel, "Religious in the Workplace: A Comprehensive Guide to Legal Rights and Responsibilities," Tort and Insurance Practice, American Bar Association, 1998, as a primary source for this outline and as an excellent resource for material generally on this subject. " Thomas and Frazee relied upon by lower courts to support a "hands off" approach in employment discrimination cases where employer contends that employee's beliefs are motivated by personal preference,
Morgan Lewis: What Hath the Supreme Court Wrought? Developments in th... Apr 21, 1999
Introduction1/ In June 1998, the U.S. Supreme Court issued the cases of Burlington Indus. 2275 (1998) ("Faragher/Ellerth"), and dramatically changed the standards for employer liability for supervisory harassment in hostile environment cases
Morgan Lewis: Understanding Wage Disparity Issues - The Legal Framewo... Apr 01, 1999
As the Court of Appeals for the Ninth Circuit has explained: "The comparable worth theory . . . postulates that sex-based wage discrimination exists if employees in job classifications occupied primarily by women are paid less than employees in job classifications filled primarily by men, if the jobs are of equal value to the employer, though otherwise dissimilar." AFSCME v. State of Washington, 770 F.2d 1401, 1404 (9th Cir. Undoubtedly, this phenomenon permeates its way into more white collar,
Morgan Lewis: Downsizing/Rightsizing Settlement Agreements and Releas... Mar 07, 1999
2 Elements Of Plaintiff's Prima Facie Case. 4 Shifting Burden Of Proof In RIF Cases
Finnegan Henderson: Federal Circuit Newsletter Mar 01, 1999
6 RESILIENT SUBFLOOR CLAIMS CANNOT "STAND UP" TO PRIOR ART Applicant fails to rebut prima facie obviousness given closeness of prior art and applicant's lack of evidence on claimed properties. 9 PLASTIC RESIN BLEND FOUND OBVIOUS Applicant's failure to compare claimed invention to closest prior art justifies Board's holding that applicant did not rebut prima facie case of obviousness
Paul Weiss: Second Circuit Review: Employment Discrimination Jan 27, 1999
In Equal Employment Opportunity Commission v. Joint Apprenticeship Committee of the Joint Industry Board of the Electrical Industry,1 the court addressed the type and quality of (i) statistical evidence necessary to make out a prima facie case of disparate impact; (ii) evidence required to provide a legitimate business justification for the challenged employment practice, sufficient to rebut the presumption arising from a plaintiff's statistical proof; and (iii) evidence sufficient to justify an
Hill Farrer & Burrill: Court Allows Employee To Proceed To Trial Based On Disp... Dec 01, 1998
Finnegan Henderson: Intent and the Powerful Defense of Inequitable Conduct ... Dec 01, 1998
Information is material to patentability under the rule when it is not cumulative to information already of record in the case and when it either (1) establishes, by itself or in combination with other information, a prima facie case of unpatentability of a claim, or (2) refutes, or is inconsistent with, a position which the applicant takes in opposing an argument of unpatentability relied upon by the PTO or asserting an argument of patentability to the PTO. Of course, there is no duty to submit
Morgan Lewis: Today''s Problems in Reorganizing the Workfor... Oct 23, 1998
2 Elements Of Plaintiff's Prima Facie Case. 4 Shifting Burden Of Proof In RIF Cases
Weil: Additional Recent Decisions of Note Oct 01, 1998
The court stated that the 1995 Act mandates Rule 11 findings upon final adjudication, but it does not require that those findings be made as part of the court s order disposing of the merits of the case. The court added that Rule 11 matters are routinely decided after final judgment, often resulting in separate appeals, and that the 1995 Act does not compel a different result in this case
Akin Gump: A Patent May Protect a Combination Of Known Elements - ... Sep 07, 1998
In the recent case of In re Rouffet the U.S. Court of Appeals for the Federal Circuit ("the CAFC") had an opportunity to review the statutory requirement of nonobviousness and restate some of the principle tests used for evaluating nonobviousness. A detailed discussion of the Rouffet case and the CAFC's decision is provided below
Morgan Lewis: Discovery and Trial in Sexual Harassment Cases from Def... Aug 31, 1998
Discovery and Trial in Sexual Harassment Cases from Defense Counsel Perspective Mark S. Dichter Andrea Sheridan Ordin Jane Howard-Martin M. Kristin Malone Morgan, Lewis us LLP. Given the flood of publicity surrounding high-profile sexual harassment cases such as Paula Jones' lawsuit against President Clinton and the corresponding increase in public awareness of sexual harassment, the huge volume of sexual harassment cases is not surprising
Testa: Court Rejects Breast-Feeding As A Protected Category Un... Jul 01, 1998
...xsp; Labor and Employment Court Rejects Breast-Feeding As A Protected Category Under NY Law Christopher W. Sanzone Spring/Summer 1998 A working mother who refused to attend a business conference without her son, who was breast-feeding, and consequently was fired, made out a prima facie case of pregnancy discrimination against her employer ruled the U.S. District Court for the Northern District of New York. In reaching its decision, the Court also relied on a number of federal cases which have
Morgan Lewis: The Prevention and Investigation of Sexual Harassment C... Jul 01, 1998
Given the flood of publicity surrounding high-profile sexual harassment cases such as Paula Jones' lawsuit against President Clinton and the corresponding increase in public awareness of sexual harassment, the huge volume of sexual harassment cases is not surprising. Although the traditional case involves harassment of a female employee by a male supervisor, the definition of sexual harassment has evolved to include harassment of a male subordinate by a female supervisor, same-sex sexual
Littler Mendelson: Summer 1998 Jul 01, 1998
While the court acknowledged that the Education Code enumerates certain specified grounds for which a school employee may be terminated without a hearing, the court pointed out that these grounds were inapplicable in this case. In this case, a student complained that a student-teacher had sexually harassed her
Arnold Porter: Use of Objective Evidence of Non-Obviousness in the Dis... Dec 01, 1997
...toUpperCase()); tmpBefore = tmpContent. A general litigator trying a patent case recently paraphrased the problem in the form of a question anyone can understand: "What the hell does commercial success have to do with whether or not something is obvious?"2The answer lies in the very nature of patentability, another concept that has proven to be extremely difficult to explain in lay terms
Arnold Porter: Statute Of Limitations: Ducking The Hard Issues? Jul 01, 1997
...toUpperCase()); tmpBefore = tmpContent. Practicing lawyers awaited the Klehr decision in the hope that it would provide some much-needed guidance -- not only on accrual issues for civil RICO, but also for similar issues that arise in private securities cases and other claims where "discovery" starts the limitations period to run
Davis Graham & Stubbs: New Developments in Discrimination Law Jun 22, 1997
The Court found that Reeves had established a prima facie case for age discrimination, and the Court of Appeals had erred in confining its review of the age animus bias, favoring Reeves, to only that evidence showing that Chestnut had directed derogatory, age-based comments, and that Chestnut had singled out Reeves for harsher treatment than younger employees. That is, the Court of Appeals proceeded from the assumption that a prima facie case of discrimination, combined with sufficient evidence
Davis Graham & Stubbs: Environmental Law: New Cases Control Recovery of Costs ... Jun 22, 1997
Environmental Law: New Cases Control Recovery of Costs for Cleanup Copyright 2000, The Daily Journal, reprinted with permission of the Colorado Journal. Detoxifying Environmental Law: New Cases Control Recovery of Costs for Cleanup By John R. Jacus Although the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Sections 9601-75 (1994), became law almost 20 years ago, parties still are litigating at considerable cost to clarify the meaning of its provisions
Thelen Reid: Recent Developments Affecting Constitutional Lawsuits f... Jun 18, 1997
The trial court granted summary judgment in favor of the employer, holding that Mr. O'Connor failed to make out a prima facie case of age discrimination, because he failed to show that he was replaced by someone outside of the age group protected by the ADEA. The Court of Appeals for the Fourth Circuit affirmed the judgment. In reluctantly doing so, the lower court specifically urged the Supreme Court to re-examine what it considered to be a "troubling area of the law." All seven California
Arent Fox: Compliance Programs Have Real Value Jun 01, 1997
The record in the case supported the company's position that the Board had implemented several programs which were designed to educate employees as to the company's commitment to abide by all pertinent rules and regulations as well as establishing an intemal audit process designed to assure compliance. 2 To establish a prima facie case, the court ruled: In order to show that the Caremark directors breached their duty of care by failing adequately to control Caremark's employees, plaintiffs would
King & Spalding: Merger Analysis Under the U.S. Antitrust Laws May 01, 1997
Although questioned by many, this approach remains common in hospital merger cases. An issue to which little thought has previously been given in the cases and commentary was raised (perhaps inadvertently) by one sentence in the 1992 Guidelines -whether the percentage price increase, once selected, is to be applied uniformly across all products in the market, or whether it is to be simply the average of a set of price increases that will be applied at varying levels to different products in the
Shaw Pittman: Changing Workplace Apr 01, 1997
Her claim therefore fell squarely within Lockhart and the court remanded the case to the lower court for trial. In this case, the employee who was the subject of the references had been employed as an instructor or administrator for three separate school districts
Jones Day: Supreme Court Cuts Back on Trademark Rights In TrafFix Mar 31, 1997
Interestingly, it was the Supreme Court’s holding in two prior cases during the 1990s that had expanded both the scope of trade dress and, consequently, the number of lawsuits being brought alleging trade dress infringement. Almost overnight, the lower courts were flooded with cases in which plaintiffs claimed trademark rights in functional features of products that had been at one time protected by patents and, arguably, failed the definitional test of a trademark
Jones Day: Supreme Court Cuts Back on Trademark Rights In TrafFix Mar 31, 1997
Interestingly, it was the Supreme Court's holding in two prior cases during the 1990s that had expanded both the scope of trade dress and, consequently, the number of lawsuits being brought alleging trade dress infringement. Almost overnight, the lower courts were flooded with cases in which plaintiffs claimed trademark rights in functional features of products that had been at one time protected by patents and, arguably, failed the definitional test of a trademark
Arnold Porter: Interaction of Toxic Tort and CERCLA Litigation Oct 09, 1996
...toUpperCase()); tmpBefore = tmpContent. Once an action has been brought, case management orders can be utilized to require plaintiffs to make out a detailed prima facie case before the beginning of discovery
Bulletin 00-10
The decision clarifies an employee’s evidentiary burden in intentional discrimination cases by stating that -- contrary to the holdings of certain circuit courts -- the employee need not produce independent evidence that discrimination was the direct cause of the discharge. Factors to be considered in this determination include the strength of the employee’s prima facie case, the probative value of the proof that the employer’s explanation is false and any other evidence introduced at trial
Bulletin 00-10
The decision clarifies an employee’s evidentiary burden in intentional discrimination cases by stating that -- contrary to the holdings of certain circuit courts -- the employee need not produce independent evidence that discrimination was the direct cause of the discharge. Factors to be considered in this determination include the strength of the employee’s prima facie case, the probative value of the proof that the employer’s explanation is false and any other evidence introduced at trial
Bulletin 02-11
These circuits required a plaintiff to set forth the elements of a prima facie claim of discrimination established under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district court dismissed the action and the Second Circuit affirmed because the complaint failed to allege the prima facie elements set forth in McDonnell Douglas: (i) membership in a protected class; (ii) qualification for the job in question; (iii) an adverse employment action; and (iv) circumstances to support
Bulletin 02-11
These circuits required a plaintiff to set forth the elements of a prima facie claim of discrimination established under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district court dismissed the action and the Second Circuit affirmed because the complaint failed to allege the prima facie elements set forth in McDonnell Douglas: (i) membership in a protected class; (ii) qualification for the job in question; (iii) an adverse employment action; and (iv) circumstances to support
Employing the Law Volume 9
In this issue, we summarize five of these cases. Although the popular press is apt to categorize decisions as a "win" or "loss" for employers (a sin of which we are sometimes guilty as well), many cases are less easy to categorize
In the Absence of an Explanation for the Discrepancy
The Court specifically requested that Hidalgo provide an explanation for inconsistencies in the position he took before the Social Security Administration and the Workers' Compensation Board and the position he took in this case regarding his limitations. In addition, the Court set forth Hidalgo's burden of establishing a prima facie case of disability discrimination
Market Power
Some of these, including the Justice Department's case against Dentsply,1 have been litigated as traditional vertical exclusive dealing cases under Section 1 of the Sherman Act. As a disclaimer, Mr. Jacobson's role in two of the principal cases addressed below should be noted PepsiCo v. Coca-Cola Co. (representing Coca-Cola) and United States v. Visa rCard (representing American Express Company)
Ford Motor Co. v. Great Domains
According to the court, sufficient minimum contacts did not exist because “[t]he only connection between the domain names and the forum in this case is that the domain names have been ‘brought’ into the forum by Ford to facilitate its convenience in litigating the matter. This clearly is insufficient to satisfy the fairness requirements of the Constitution.” Second, the court granted in part, and denied in part, defendants’ motion for reconsideration regarding the court’s March 30, 2001,
After the Verdict -- Different federal judges
" The moving party has a heavy burden to bear before a jury's decision will be overturned. Reeves' application of this standard to the facts of the case is also instructive. Plaintiff-appellant Roger Reeves, 57 years old, worked 40 years for defendant-respondent Sanderson Plumbing but was fired because of timekeeping errors and misrepresentations of employees he and 35-year-old Joe Oswalt directly supervised. Sanderson Plumbing did not terminate Oswalt. Reeves sued Sanderson Plumbing for age
May 28
Verizon argued that the subpoena power available under Section 512 of the Digital Millennium Copyright Act (DMC) and invoked by the plaintiff in this case was unconstitutional because it authorized courts to act outside a pending case or controversy in violation of Article III and violated the First Amendment rights of subscribers. 13230 Court holds that registrant established a prima facie case against domain registrar for violation of its duties of good faith and fair dealing in contractual
Employment
Complaints Must Set Forth a Prima Facie Violation of the Act: In order for the Director to commence an investigation into the allegations, the complaint must demonstrate a prima facie case of discrimination. Once the elements of a case are demonstrated, it becomes the employer’s turn to convince the Assistant Secretary, by “clear and convincing” evidence, that it would have taken the same action in the absence of the protected conduct
Employing the Law Volume 9
CASE BACKGROUND The circumstances in which the case arose date back to 1987, when BEtruction Co., a nonunion firm, was awarded a contract to modernize a steel mill. In the recent case of Anderson v. Conrail, 17 Conrail workers alleged they were targeted for layoffs as part of an attempt by Contrail to deny them participation in the early retirement packages offered the following year and as part of an improper effort to thin its allegedly "aging workforce." BACKGROUND In July 1995, Conrail laid
Focusing: When Less Is More
Sometimes small cases teach big lessons. More than a decade ago I defended such a case
A Potpourri of Case Law Developments: Arbitration
Morrison ter - Bulletin - EMPLOYMENT LAW COMMENTARY EMPLOYMENT LAW COMMENTARY A Potpourri of Case Law Developments ELC Editor: Lloyd W. Aubry, Jr. MoFo Labor Department Partners unsel Century City Ivy Kagan Bierman Denver Stephen S. Dunham Stephen M. Kaufmann Tarek Saad London Ann Bevitt Simeon Spencer David Warner Los Angeles Sarvenaz Bahar Michael S. Chamberlin Lisa V. Klerman Timothy F. Ryan Janie F. Schulman B. Scott Silverman Marcus A. Torrano New York Miriam H. Wugmeister Orange County
A Potpourri of Case Law Developments: Arbitration
Morrison ter - Bulletin - EMPLOYMENT LAW COMMENTARY EMPLOYMENT LAW COMMENTARY A Potpourri of Case Law Developments ELC Editor: Lloyd W. Aubry, Jr. MoFo Labor Department Partners unsel Century City Ivy Kagan Bierman Denver Stephen S. Dunham Stephen M. Kaufmann Tarek Saad London Ann Bevitt Simeon Spencer David Warner Los Angeles Sarvenaz Bahar Michael S. Chamberlin Lisa V. Klerman Timothy F. Ryan Janie F. Schulman B. Scott Silverman Marcus A. Torrano New York Miriam H. Wugmeister Orange County
Information Law and Privacy Alert - October 27
In a case of first impression,the Federal Circuit has ruled that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C.§ 1201 et seq. The DMCA prohibits manufacturing or trafficking in technology or devices that are designed primarily for the purpose of circumventing technological measures used to control access to copyrighted works
New Rights for Appeal
Appeals can be made to the tribunal against certain decisions of the Director General of Fair Trading ("DGFT") in competition cases. The Bill's provisions enabling the CAT to hear claims for damages will streamline the process and ensure that such cases will be dealt with by experts in competition law who will understand complex technical arguments and who will more appropriately assess the impact of the infringement and the corresponding claim for compensation
Summer 2003; Volume 5
As noted in our October 2002 Wetlands Update, a person who plowed wetlands without a permit violated Section 404 of the Clean Water Act because the plowing had discharged a "pollutant."The case involved the deep ripping of clay-lined soil with a plow. Unfortunately for the plaintiff in the case, his activity changed the hydrology of his property and impaired the flow of water
Employing the Law Volume 7
NLRB's General Counsel Considers Aggressive New Remedies in Unfair Labor Practice Cases. He recently sent a memorandum to NLRB regional office personnel instructing them to consider front pay as a remedy in appropriate cases of discrimination on the basis of union activity where reinstatement is impossible or inadvisable
Circuit Court Review Highlighting cases from the Third
Law Firm of Pepper Hamilton LLP | Publications @import "style.css"; -- Register/Login Publications Circuit Court Review 10/05/2004 THIRD CIRCUIT CASES Antitrust (Burden to withstand motion for summary judgment in an action for horizontal price fixing) In re Flat Glass Antitrust Litigation, No. 03-2920 (Chertoff, J.) (also on panel: Nygaard, J. and McKee, J.) (Filed: September 29, 2004) The Third Circuit reversed in part a lower court s grant of summary judgment for the defendant in a class
02-01-02: IP Update
In re Lee, Case No. 00-1158 (January 18, 2002). Symbol Technologies, Inc. et al. v. Lemelson Medical, Education & Research Foundation, L.P., Case No. 00-1583 (Fed
02-01-02: IP Update
In re Lee, Case No. 00-1158 (January 18, 2002). Symbol Technologies, Inc. et al. v. Lemelson Medical, Education & Research Foundation, L.P., Case No. 00-1583 (Fed
03-01-00: IP Update
Inc., Case 99-150 (U.S. March 22, 2000). In this case, the court took Qualitex further, ruling that product design, like color, is not inherently distinctive
03-01-00: IP Update
Inc., Case 99-150 (U.S. March 22, 2000). In this case, the court took Qualitex further, ruling that product design, like color, is not inherently distinctive
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
09-30-97: Antitrust Wire
By Chris Compton On Thursday, June 28, 2001, the United States Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the Justice Department's antitrust case against Microsoft Corporation. The case will not go back to Judge Thomas Penfield Jackson
: Jasmine Networks
...granted 7/21/04) The California Supreme Court accepts a case from the Sixth District that holds that client participation in an inadvertent disclosure of an attorney-client communication waives the privilege. There is no requirement in the statute, nor in the cases interpreting the statute, that the privilege holder intend to
: I Am Fifty
The Swierkiewicz Decision Mr. Swierkiewicz, a fifty-three year old Hungarian, was employed as an officer of Sorema N.A. ( Sorema ), a reinsurance company primarily held and controlled by a French parent corporation. The appellate court affirmed the dismissal, holding that Mr. Swierkiewicz was required to plead facts amounting to the prima facie case for discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
: In The Courts (campaign videotapes
The plaintiff’s case pointed out that the RIF affected only one person, herself. She met her burden for a prima facie case, the court said, and the company’s argument did not merit summary judgment
: Recruiting
If the plaintiff does not have direct evidence, the plaintiff can create a prima facie case of age discrimination through circumstantial evidence tending to show that age was the reason for the employment decision. Once the prima facie case is shown, the employer has the burden of presenting a Alegitimate non-discriminatory reason@ for its actions
Akin Gump: Retaliation - The Suit of Choice
Circumstantial Evidence/Pretext Cases. "Mixed Motive" Cases
Blank Rome: Kelly v. Arriba Soft Corporation - A New Take on Linkin...
Recently, linking and framing has resurfaced in the seminal case, Kelly v. Arriba Soft Corporation, wherein the U.S. Court of Appeals for the Ninth Circuit held that while the reproduction and display of copyrighted photographs, in thumbnail form, was legal, the display of the full-sized images, through linking and framing, violated the U.S. Copyright Act. The Court has essentially validated copyright infringement as an additional cause of action for plaintiffs in linking and framing cases and
Davis Wright Tremaine: HIPAA and WIFI – Regulatory Tangles for Wireless H...
Possible penalties for USERRA violations include lost wages and benefits, liquidated damages in the case of willful violations, attorneys' fees, expert witness fees, and other litigation costs. OTHER LAWS Several other federal laws provide protections and grant special rights to members of the military, including the Soldiers and Sailors Civil Relief Act, 50 U.S.C. App
Epstein Becker & Green: Butterworth: Positive Economic Effects Trump Antitrust ...
Critics of antitrust jurisprudence have suggested that much of the case law has been generated from such a formulaic, insufficiently-empirical economic viewpoint. A more practical, though somewhat novel, stance is that embodied in the recent decision by the United States District Court for the Western District of Michigan, in the case of Federal Trade Commission v. Butterworth Health Corporation and Blodgett Memorial Medical Center, 1996-2 Trade Cases ¦ 71,571; 1996 QL 570479 (W.D. Mich, Sept.
Epstein Becker & Green: PDF
Specifically, the Supreme Court removed the requirement in mixed-motive cases that a plaintiff present some form of "direct evidence" that an employment decision was motivated by an illegal reason (e. As one circuit cautioned, this could essentially "swallow whole the traditional McDonnell Douglas analysis." Mixed-Motive vs. McDonnell Douglas Cases In a typical mixed-motive scenario, a Title VII plaintiff alleges that an employment decision was motivated by an illegitimate reason (e
Honigman Miller: Sexual Harassment - Your Ticking Bomb
Cases in which employers and their employees are being sued by other employees (most often former employees) for sexual harassment have increased exponentially in the last four or five years. The vast majority of sexual harassment cases are filed by terminated female employees against their male former coemployees and the company which employed them
Hughes Hubbard: Antitrust Update
MARKETING STRATEGIES Based on the evidence of market concentration, the district court found that the FTC had established a prima facie case of unlawfulness. The court went on to hold, however, that Heinz and Beech-Nut had rebutted the FTC’s prima facie case
Littler Mendelson: An Employment Lawyer's "Top 40" Counseli...
Publications: An Employment Lawyer's Top 40 Counseling Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights Insight Newsletters Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Lawyer's "Top 40" Counseling Cases Reprinted with permission by Aspen Publishers, Inc. 25 Empl
Littler Mendelson: An Employment Lawyer's "Top 40" Litigati...
Publications: An Employment Defense Lawyer's Top 40 Litigation Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights Insight Newsletters Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Defense Lawyer's "Top 40" Litigation Cases Reprinted with permission by Aspen Publishers, Inc. 26 Empl
McGlinchey Stafford: We're Not Talking About Baseball (SOX claims)
Once the employee establishes a prima facie case, then the burden shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same adverse personnel action in the absence of the employee’s whistleblowing activity. Initially, at least until the Department of Labor issues specific regulations interpreting the SOX whistleblower provisions, the Office of Administrative Law Judges is taking the position that SOX proceedings will be conducted in
Sidley Austin: Supreme Court Paves Way For Broad Enforcement Of Arbitr...
The DOL may dismiss the complaint without investigation only if the complaint fails to state a prima facie case or the employer demonstrates, by clear and convincing evidence, that the employer would have made the same personnel decision regarding the employee absent any protected activity by the employee. The affiliated firms, Sidley Austin Brown LLP, a Delaware limited liability partnership, Sidley Austin Brown an Illinois general partnership, Sidley Austin Brown an English partnership, and
Weil: Eligibility of Petitioning Creditors Determines Subject...
In Key Mechanical Inc. v. BDC 56 LLC (In re BDC 56 LLC), the Second Circuit affirmed the lower courts dismissal of an involuntary case where petitioning creditors failed to demonstrate that their claims were free from bona fide dispute. In so holding, the Second Circuit rejected the view endorsed by the Ninth Circuit, that the undisputed claim requirement is not jurisdictional, but goes to the merits of the case
Weil: Control Person Liability Under The Exchange Act; Possib...
2d 281 (S.D.N.Y. Feb. 19, 2003) and In re WorldCom, Inc. Securities Litigation, 2003 WL 21219049 (S.D.N.Y. May 19, 2003) are the most significant recent efforts by courts in the Second Circuit to determine whether a culpable state of mind is a prima facie element of a section 20(a) claim. Both Initial Public Offering and WorldCom in contrast to the majority of cases in the seven years preceding these cases hold that a plaintiff need not plead nor ultimately prove that a defendant acted with a
Weil: Assessment of Qualifications In Discriminatory Failure ...
Replace Font Tag Employer Update Assessment of Qualifications In Discriminatory Failure To Promote Cases October 2003 Download Newsletterby Jeffrey S. Klein, Nicholas J. Pappas and Indraneel Sur Employers frequently consider subjective criteria in selecting a candidate for promotion from among a field of qualified candidates. In the Fifth Circuit, for example, courts addressing summary judgment motions in promotion cases based solely on circumstantial evidence of the employees alleged
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Weil: Limitations on Creditor Rights
In such cases, it has been common practice for courts to authorize the creditors committee to bring a derivative action on behalf of the debtor in possession during the pendency of the chapter 11 case. The district court (to which the case had been moved) agreed with the transferees contention and granted their motions to dismiss the suit
Weil: Assessment Of Evidence In "Mixed Motive" Disc...
Replace Font Tag Employer Update Assessment Of Evidence In "Mixed Motive" Discrimination Cases October 2003 Download Newsletterby Jeffrey S. Klein, Nicholas J. Pappas and Philip F. Repash In the Civil Rights Act of 1991, amending Title VII, Congress clarified, among other things, the standard for causation in the context of so-called mixed motive cases. Mixed motive cases are those cases where the evidence establishes that the employer was motivated both by discriminatory as well as
Winston Strawn: Questions and Answers about the Sarbanes-Oxley Whistleb...
A. The primary provision in the Act that deals with whistleblowing is Section 806. Q. What is the primary focus of the new law s whistleblower protections
Bulletin 00-10
Bulletin 00-10
Bulletin 02-11
Bulletin 02-11
Employing the Law Volume 9
In this issue, we summarize five of these cases. Although the popular press is apt to categorize decisions as a "win" or "loss" for employers (a sin of which we are sometimes guilty as well), many cases are less easy to categorize
In the Absence of an Explanation for the Discrepancy
The Court specifically requested that Hidalgo provide an explanation for inconsistencies in the position he took before the Social Security Administration and the Workers' Compensation Board and the position he took in this case regarding his limitations. In addition, the Court set forth Hidalgo's burden of establishing a prima facie case of disability discrimination
Market Power
Some of these, including the Justice Department's case against Dentsply,1 have been litigated as traditional vertical exclusive dealing cases under Section 1 of the Sherman Act. As a disclaimer, Mr. Jacobson's role in two of the principal cases addressed below should be noted PepsiCo v. Coca-Cola Co. (representing Coca-Cola) and United States v. Visa rCard (representing American Express Company)
Ford Motor Co. v. Great Domains
According to the court, sufficient minimum contacts did not exist because “[t]he only connection between the domain names and the forum in this case is that the domain names have been ‘brought’ into the forum by Ford to facilitate its convenience in litigating the matter. This clearly is insufficient to satisfy the fairness requirements of the Constitution.” Second, the court granted in part, and denied in part, defendants’ motion for reconsideration regarding the court’s March 30, 2001,
After the Verdict -- Different federal judges
" The moving party has a heavy burden to bear before a jury's decision will be overturned. Reeves' application of this standard to the facts of the case is also instructive. Plaintiff-appellant Roger Reeves, 57 years old, worked 40 years for defendant-respondent Sanderson Plumbing but was fired because of timekeeping errors and misrepresentations of employees he and 35-year-old Joe Oswalt directly supervised. Sanderson Plumbing did not terminate Oswalt. Reeves sued Sanderson Plumbing for age
Employment
Complaints Must Set Forth a Prima Facie Violation of the Act: In order for the Director to commence an investigation into the allegations, the complaint must demonstrate a prima facie case of discrimination. Once the elements of a case are demonstrated, it becomes the employer’s turn to convince the Assistant Secretary, by “clear and convincing” evidence, that it would have taken the same action in the absence of the protected conduct
May 28
Verizon argued that the subpoena power available under Section 512 of the Digital Millennium Copyright Act (DMC) and invoked by the plaintiff in this case was unconstitutional because it authorized courts to act outside a pending case or controversy in violation of Article III and violated the First Amendment rights of subscribers. 13230 Court holds that registrant established a prima facie case against domain registrar for violation of its duties of good faith and fair dealing in contractual
Employing the Law Volume 9
CASE BACKGROUND The circumstances in which the case arose date back to 1987, when BEtruction Co., a nonunion firm, was awarded a contract to modernize a steel mill. In the recent case of Anderson v. Conrail, 17 Conrail workers alleged they were targeted for layoffs as part of an attempt by Contrail to deny them participation in the early retirement packages offered the following year and as part of an improper effort to thin its allegedly "aging workforce." BACKGROUND In July 1995, Conrail laid
Focusing: When Less Is More
Sometimes small cases teach big lessons. More than a decade ago I defended such a case
Information Law and Privacy Alert - October 27
In a case of first impression,the Federal Circuit has ruled that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C.§ 1201 et seq. The DMCA prohibits manufacturing or trafficking in technology or devices that are designed primarily for the purpose of circumventing technological measures used to control access to copyrighted works
New Rights for Appeal
Appeals can be made to the tribunal against certain decisions of the Director General of Fair Trading ("DGFT") in competition cases. The Bill's provisions enabling the CAT to hear claims for damages will streamline the process and ensure that such cases will be dealt with by experts in competition law who will understand complex technical arguments and who will more appropriately assess the impact of the infringement and the corresponding claim for compensation
Summer 2003; Volume 5
As noted in our October 2002 Wetlands Update, a person who plowed wetlands without a permit violated Section 404 of the Clean Water Act because the plowing had discharged a "pollutant."The case involved the deep ripping of clay-lined soil with a plow. Unfortunately for the plaintiff in the case, his activity changed the hydrology of his property and impaired the flow of water
Employing the Law Volume 7
NLRB's General Counsel Considers Aggressive New Remedies in Unfair Labor Practice Cases. He recently sent a memorandum to NLRB regional office personnel instructing them to consider front pay as a remedy in appropriate cases of discrimination on the basis of union activity where reinstatement is impossible or inadvisable
Circuit Court Review Highlighting cases from the Third
Law Firm of Pepper Hamilton LLP | Publications @import "style.css"; -- Register/Login Publications Circuit Court Review 10/05/2004 THIRD CIRCUIT CASES Antitrust (Burden to withstand motion for summary judgment in an action for horizontal price fixing) In re Flat Glass Antitrust Litigation, No. 03-2920 (Chertoff, J.) (also on panel: Nygaard, J. and McKee, J.) (Filed: September 29, 2004) The Third Circuit reversed in part a lower court s grant of summary judgment for the defendant in a class
Implications of the Human Genome Project
People can say what they will about the landmark Diamond v. Chakrabarty[1] case, but no one can seriously doubt that it led directly to the preeminence of the United States in biotechnology. An interesting footnote to that case was the role played by the Upjohn Pharmaceutical Company in its outcome
02-01-02: IP Update
In re Lee, Case No. 00-1158 (January 18, 2002). Symbol Technologies, Inc. et al. v. Lemelson Medical, Education & Research Foundation, L.P., Case No. 00-1583 (Fed
02-01-02: IP Update
In re Lee, Case No. 00-1158 (January 18, 2002). Symbol Technologies, Inc. et al. v. Lemelson Medical, Education & Research Foundation, L.P., Case No. 00-1583 (Fed
03-01-00: IP Update
Inc., Case 99-150 (U.S. March 22, 2000). In this case, the court took Qualitex further, ruling that product design, like color, is not inherently distinctive
03-01-00: IP Update
Inc., Case 99-150 (U.S. March 22, 2000). In this case, the court took Qualitex further, ruling that product design, like color, is not inherently distinctive
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
09-30-97: Antitrust Wire
By Chris Compton On Thursday, June 28, 2001, the United States Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the Justice Department's antitrust case against Microsoft Corporation. The case will not go back to Judge Thomas Penfield Jackson
: Jasmine Networks
...granted 7/21/04) The California Supreme Court accepts a case from the Sixth District that holds that client participation in an inadvertent disclosure of an attorney-client communication waives the privilege. There is no requirement in the statute, nor in the cases interpreting the statute, that the privilege holder intend to
: I Am Fifty
The Swierkiewicz Decision Mr. Swierkiewicz, a fifty-three year old Hungarian, was employed as an officer of Sorema N.A. ( Sorema ), a reinsurance company primarily held and controlled by a French parent corporation. The appellate court affirmed the dismissal, holding that Mr. Swierkiewicz was required to plead facts amounting to the prima facie case for discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
: In The Courts (campaign videotapes
The plaintiff’s case pointed out that the RIF affected only one person, herself. She met her burden for a prima facie case, the court said, and the company’s argument did not merit summary judgment
: Recruiting
If the plaintiff does not have direct evidence, the plaintiff can create a prima facie case of age discrimination through circumstantial evidence tending to show that age was the reason for the employment decision. Once the prima facie case is shown, the employer has the burden of presenting a Alegitimate non-discriminatory reason@ for its actions
Akin Gump: Retaliation - The Suit of Choice
Circumstantial Evidence/Pretext Cases. "Mixed Motive" Cases
Davis Wright Tremaine: HIPAA and WIFI – Regulatory Tangles for Wireless H...
Possible penalties for USERRA violations include lost wages and benefits, liquidated damages in the case of willful violations, attorneys' fees, expert witness fees, and other litigation costs. OTHER LAWS Several other federal laws provide protections and grant special rights to members of the military, including the Soldiers and Sailors Civil Relief Act, 50 U.S.C. App
Epstein Becker & Green: Butterworth: Positive Economic Effects Trump Antitrust ...
Critics of antitrust jurisprudence have suggested that much of the case law has been generated from such a formulaic, insufficiently-empirical economic viewpoint. A more practical, though somewhat novel, stance is that embodied in the recent decision by the United States District Court for the Western District of Michigan, in the case of Federal Trade Commission v. Butterworth Health Corporation and Blodgett Memorial Medical Center, 1996-2 Trade Cases ¦ 71,571; 1996 QL 570479 (W.D. Mich, Sept.
Epstein Becker & Green: PDF
Specifically, the Supreme Court removed the requirement in mixed-motive cases that a plaintiff present some form of "direct evidence" that an employment decision was motivated by an illegal reason (e. As one circuit cautioned, this could essentially "swallow whole the traditional McDonnell Douglas analysis." Mixed-Motive vs. McDonnell Douglas Cases In a typical mixed-motive scenario, a Title VII plaintiff alleges that an employment decision was motivated by an illegitimate reason (e
Honigman Miller: Sexual Harassment - Your Ticking Bomb
Cases in which employers and their employees are being sued by other employees (most often former employees) for sexual harassment have increased exponentially in the last four or five years. The vast majority of sexual harassment cases are filed by terminated female employees against their male former coemployees and the company which employed them
Hughes Hubbard: Antitrust Update
MARKETING STRATEGIES Based on the evidence of market concentration, the district court found that the FTC had established a prima facie case of unlawfulness. The court went on to hold, however, that Heinz and Beech-Nut had rebutted the FTC’s prima facie case
Littler Mendelson: E-Hiring Practices
A plaintiff need only prove that he or she was qualified to perform the coveted job in order to establish a prima facie case, not that he or she would have been the most qualified applicant. Several recent news stories have covered cases involving unauthorized use of personal information, such as social security numbers and email addresses, by employees
Littler Mendelson: An Employment Lawyer's "Top 40" Counseli...
Publications: An Employment Lawyer's Top 40 Counseling Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights -- Insight Newsletters Media Quote Book Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Lawyer's "Top 40" Counseling Cases Reprinted with permission by Aspen Publishers, Inc. 25 Empl
Littler Mendelson: An Employment Lawyer's "Top 40" Litigati...
Publications: An Employment Defense Lawyer's Top 40 Litigation Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights -- Insight Newsletters Media Quote Book Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Defense Lawyer's "Top 40" Litigation Cases Reprinted with permission by Aspen Publishers, Inc. 26 Empl
McGlinchey Stafford: We're Not Talking About Baseball (SOX claims)
Once the employee establishes a prima facie case, then the burden shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same adverse personnel action in the absence of the employee’s whistleblowing activity. Initially, at least until the Department of Labor issues specific regulations interpreting the SOX whistleblower provisions, the Office of Administrative Law Judges is taking the position that SOX proceedings will be conducted in
Sidley Austin: Supreme Court Paves Way For Broad Enforcement Of Arbitr...
The DOL may dismiss the complaint without investigation only if the complaint fails to state a prima facie case or the employer demonstrates, by clear and convincing evidence, that the employer would have made the same personnel decision regarding the employee absent any protected activity by the employee. The affiliated firms, Sidley Austin Brown LLP, a Delaware limited liability partnership, Sidley Austin Brown an Illinois general partnership, Sidley Austin Brown an English partnership, and
Weil: Eligibility of Petitioning Creditors Determines Subject...
In Key Mechanical Inc. v. BDC 56 LLC (In re BDC 56 LLC), the Second Circuit affirmed the lower courts dismissal of an involuntary case where petitioning creditors failed to demonstrate that their claims were free from bona fide dispute. In so holding, the Second Circuit rejected the view endorsed by the Ninth Circuit, that the undisputed claim requirement is not jurisdictional, but goes to the merits of the case
Weil: Control Person Liability Under The Exchange Act; Possib...
2d 281 (S.D.N.Y. Feb. 19, 2003) and In re WorldCom, Inc. Securities Litigation, 2003 WL 21219049 (S.D.N.Y. May 19, 2003) are the most significant recent efforts by courts in the Second Circuit to determine whether a culpable state of mind is a prima facie element of a section 20(a) claim. Both Initial Public Offering and WorldCom in contrast to the majority of cases in the seven years preceding these cases hold that a plaintiff need not plead nor ultimately prove that a defendant acted with a
Weil: Assessment of Qualifications In Discriminatory Failure ...
Replace Font Tag Employer Update Assessment of Qualifications In Discriminatory Failure To Promote Cases October 2003 Download Newsletterby Jeffrey S. Klein, Nicholas J. Pappas and Indraneel Sur Employers frequently consider subjective criteria in selecting a candidate for promotion from among a field of qualified candidates. In the Fifth Circuit, for example, courts addressing summary judgment motions in promotion cases based solely on circumstantial evidence of the employees alleged
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Winston Strawn: Questions and Answers about the Sarbanes-Oxley Whistleb...
A. The primary provision in the Act that deals with whistleblowing is Section 806. Q. What is the primary focus of the new law s whistleblower protections
Bulletin 00-10
Bulletin 00-10
Bulletin 02-11
Bulletin 02-11
Employment & Labor Law Alert - August 15
The DOL may dismiss the complaint without investigation only if the complaint fails to state a prima facie case or the employer demonstrates, by clear and convincing evidence, that the employer would have made the same personnel decision regarding the employee absent any protected activity by the employee. The affiliated firms, Sidley Austin Brown LLP, a Delaware limited liability partnership, Sidley Austin Brown an Illinois general partnership, Sidley Austin Brown an English partnership, and
Employing the Law Volume 9
In this issue, we summarize five of these cases. Although the popular press is apt to categorize decisions as a "win" or "loss" for employers (a sin of which we are sometimes guilty as well), many cases are less easy to categorize
In the Absence of an Explanation for the Discrepancy
The Court specifically requested that Hidalgo provide an explanation for inconsistencies in the position he took before the Social Security Administration and the Workers' Compensation Board and the position he took in this case regarding his limitations. In addition, the Court set forth Hidalgo's burden of establishing a prima facie case of disability discrimination
Market Power
Some of these, including the Justice Department's case against Dentsply,1 have been litigated as traditional vertical exclusive dealing cases under Section 1 of the Sherman Act. As a disclaimer, Mr. Jacobson's role in two of the principal cases addressed below should be noted PepsiCo v. Coca-Cola Co. (representing Coca-Cola) and United States v. Visa rCard (representing American Express Company)
After the Verdict -- Different federal judges
" The moving party has a heavy burden to bear before a jury's decision will be overturned. Reeves' application of this standard to the facts of the case is also instructive. Plaintiff-appellant Roger Reeves, 57 years old, worked 40 years for defendant-respondent Sanderson Plumbing but was fired because of timekeeping errors and misrepresentations of employees he and 35-year-old Joe Oswalt directly supervised. Sanderson Plumbing did not terminate Oswalt. Reeves sued Sanderson Plumbing for age
May 28
Verizon argued that the subpoena power available under Section 512 of the Digital Millennium Copyright Act (DMC) and invoked by the plaintiff in this case was unconstitutional because it authorized courts to act outside a pending case or controversy in violation of Article III and violated the First Amendment rights of subscribers. 13230 Court holds that registrant established a prima facie case against domain registrar for violation of its duties of good faith and fair dealing in contractual
Employment
Complaints Must Set Forth a Prima Facie Violation of the Act: In order for the Director to commence an investigation into the allegations, the complaint must demonstrate a prima facie case of discrimination. Once the elements of a case are demonstrated, it becomes the employer’s turn to convince the Assistant Secretary, by “clear and convincing” evidence, that it would have taken the same action in the absence of the protected conduct
Information Law and Privacy Alert - October 27
In a case of first impression,the Federal Circuit has ruled that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C.§ 1201 et seq. The DMCA prohibits manufacturing or trafficking in technology or devices that are designed primarily for the purpose of circumventing technological measures used to control access to copyrighted works
Employing the Law Volume 9
CASE BACKGROUND The circumstances in which the case arose date back to 1987, when BEtruction Co., a nonunion firm, was awarded a contract to modernize a steel mill. In the recent case of Anderson v. Conrail, 17 Conrail workers alleged they were targeted for layoffs as part of an attempt by Contrail to deny them participation in the early retirement packages offered the following year and as part of an improper effort to thin its allegedly "aging workforce." BACKGROUND In July 1995, Conrail laid
Focusing: When Less Is More
Sometimes small cases teach big lessons. More than a decade ago I defended such a case
Summer 2003; Volume 5
As noted in our October 2002 Wetlands Update, a person who plowed wetlands without a permit violated Section 404 of the Clean Water Act because the plowing had discharged a "pollutant."The case involved the deep ripping of clay-lined soil with a plow. Unfortunately for the plaintiff in the case, his activity changed the hydrology of his property and impaired the flow of water
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
09-30-97: Antitrust Wire
By Chris Compton On Thursday, June 28, 2001, the United States Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the Justice Department's antitrust case against Microsoft Corporation. The case will not go back to Judge Thomas Penfield Jackson
: Perez v. County of Santa Clara (CA6 August
At trial, the Court found that Perez proved a prima facie case of racial discrimination; however, the County had established a legitimate non-discriminatory reason for the delay in promotion, which Perez could not rebut. Similarly, the Court found that Perez proved a prima facie case for retaliation; however, the County had established that there was no causal link between Perez's filing of EEO complaints and the acts upon which she premised her claim
: Jasmine Networks
...granted 7/21/04) The California Supreme Court accepts a case from the Sixth District that holds that client participation in an inadvertent disclosure of an attorney-client communication waives the privilege. There is no requirement in the statute, nor in the cases interpreting the statute, that the privilege holder intend to
: I Am Fifty
The Swierkiewicz Decision Mr. Swierkiewicz, a fifty-three year old Hungarian, was employed as an officer of Sorema N.A. ( Sorema ), a reinsurance company primarily held and controlled by a French parent corporation. The appellate court affirmed the dismissal, holding that Mr. Swierkiewicz was required to plead facts amounting to the prima facie case for discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
: In The Courts (campaign videotapes
The plaintiff’s case pointed out that the RIF affected only one person, herself. She met her burden for a prima facie case, the court said, and the company’s argument did not merit summary judgment
Akin Gump: Retaliation - The Suit of Choice
Circumstantial Evidence/Pretext Cases. "Mixed Motive" Cases
Ballard Spahr: Human Resources Focus: The ?New? OFCCP
The definition of an applicant is important with regard to two employment law issues: (1) only "applicants" may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes; and (2) employers must determine who qualifies as an "applicant" in order to ascertain whether hiring practices, policies or procedures have an "adverse impact" on minorities and/or women. As the OFCCP has not clearly defined the term "applicant,"
Davis Wright Tremaine: HIPAA and WIFI – Regulatory Tangles for Wireless H...
Possible penalties for USERRA violations include lost wages and benefits, liquidated damages in the case of willful violations, attorneys' fees, expert witness fees, and other litigation costs. OTHER LAWS Several other federal laws provide protections and grant special rights to members of the military, including the Soldiers and Sailors Civil Relief Act, 50 U.S.C. App
Epstein Becker & Green: PDF
NEW JERSEY REFINES ELEMENTS FOR PRIMA FACIE CASE OF DISCRIMINATION. In Zive v. Stanley Roberts, Inc., the New Jersey Supreme Court clarified the requirements for establishing a prima facie case of discriminatory discharge under the New Jersey Law Against Discrimination ("LAD")
Epstein Becker & Green: TEXT
In one case, a woman pilot complained of sex harassment and that she had been fired for complaining. Because the ultimate question in retaliation cases is the operation of the mind of the actor, the courts have approached this inquiry in much the same way as in discrimination cases — that is, a claim of retaliation can be proved either by offering direct evidence of retaliation or by offering circumstantial evidence under the burden-shifting model
Epstein Becker & Green: Butterworth: Positive Economic Effects Trump Antitrust ...
Critics of antitrust jurisprudence have suggested that much of the case law has been generated from such a formulaic, insufficiently-empirical economic viewpoint. A more practical, though somewhat novel, stance is that embodied in the recent decision by the United States District Court for the Western District of Michigan, in the case of Federal Trade Commission v. Butterworth Health Corporation and Blodgett Memorial Medical Center, 1996-2 Trade Cases ¦ 71,571; 1996 QL 570479 (W.D. Mich, Sept.
Epstein Becker & Green: PDF
Specifically, the Supreme Court removed the requirement in mixed-motive cases that a plaintiff present some form of "direct evidence" that an employment decision was motivated by an illegal reason (e. As one circuit cautioned, this could essentially "swallow whole the traditional McDonnell Douglas analysis." Mixed-Motive vs. McDonnell Douglas Cases In a typical mixed-motive scenario, a Title VII plaintiff alleges that an employment decision was motivated by an illegitimate reason (e
Honigman Miller: Sexual Harassment - Your Ticking Bomb
Cases in which employers and their employees are being sued by other employees (most often former employees) for sexual harassment have increased exponentially in the last four or five years. The vast majority of sexual harassment cases are filed by terminated female employees against their male former coemployees and the company which employed them
Hughes Hubbard: Antitrust Update
MARKETING STRATEGIES Based on the evidence of market concentration, the district court found that the FTC had established a prima facie case of unlawfulness. The court went on to hold, however, that Heinz and Beech-Nut had rebutted the FTC’s prima facie case
Littler Mendelson: E-Hiring Practices
A plaintiff need only prove that he or she was qualified to perform the coveted job in order to establish a prima facie case, not that he or she would have been the most qualified applicant. Several recent news stories have covered cases involving unauthorized use of personal information, such as social security numbers and email addresses, by employees
Littler Mendelson: An Employment Lawyer's "Top 40" Counseli...
Publications: An Employment Lawyer's Top 40 Counseling Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights -- Insight Newsletters Media Quote Book Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Lawyer's "Top 40" Counseling Cases Reprinted with permission by Aspen Publishers, Inc. 25 Empl
Littler Mendelson: An Employment Lawyer's "Top 40" Litigati...
Publications: An Employment Defense Lawyer's Top 40 Litigation Cases 0t. getDate() + ", " + theYear); // -- Articles A.S.A.P. Newsletters Global Insights -- Insight Newsletters Media Quote Book Public School Newsletters Texas E-Lert Newsletters White Papers News & Press Order Products Request Information An Employment Defense Lawyer's "Top 40" Litigation Cases Reprinted with permission by Aspen Publishers, Inc. 26 Empl
Lowenstein Sandler: "Anonymous 'Posters' Complicate Discover...
These cases teach that, in general, a strong prima facie case of defamation must be established at the outset of the lawsuit in the absence of any viable claim that confidential information has been posted in violation of a non-disclosure or secrecy obligation. In the first case, Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super
McGlinchey Stafford: We're Not Talking About Baseball (SOX claims)
Once the employee establishes a prima facie case, then the burden shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same adverse personnel action in the absence of the employee’s whistleblowing activity. Initially, at least until the Department of Labor issues specific regulations interpreting the SOX whistleblower provisions, the Office of Administrative Law Judges is taking the position that SOX proceedings will be conducted in
Vorys Sater: Ohio First to Put Reins on Out-of-Control Asbestos Liti...
Widespread use of asbestos stopped in the 1970s, and the number of mesothelioma cancer claims from asbestos has hovered at about 2,000 cases a year for the past decade, according to a 2000 study by Sebago Associates. Currently, there are approximately 1,000 silica-related cases pending in Ohio courts
Weil: Eligibility of Petitioning Creditors Determines Subject...
In Key Mechanical Inc. v. BDC 56 LLC (In re BDC 56 LLC), the Second Circuit affirmed the lower courts dismissal of an involuntary case where petitioning creditors failed to demonstrate that their claims were free from bona fide dispute. In so holding, the Second Circuit rejected the view endorsed by the Ninth Circuit, that the undisputed claim requirement is not jurisdictional, but goes to the merits of the case
Weil: Control Person Liability Under The Exchange Act; Possib...
2d 281 (S.D.N.Y. Feb. 19, 2003) and In re WorldCom, Inc. Securities Litigation, 2003 WL 21219049 (S.D.N.Y. May 19, 2003) are the most significant recent efforts by courts in the Second Circuit to determine whether a culpable state of mind is a prima facie element of a section 20(a) claim. Both Initial Public Offering and WorldCom in contrast to the majority of cases in the seven years preceding these cases hold that a plaintiff need not plead nor ultimately prove that a defendant acted with a
Weil: Assessment of Qualifications In Discriminatory Failure ...
Replace Font Tag Employer Update Assessment of Qualifications In Discriminatory Failure To Promote Cases October 2003 Download Newsletterby Jeffrey S. Klein, Nicholas J. Pappas and Indraneel Sur Employers frequently consider subjective criteria in selecting a candidate for promotion from among a field of qualified candidates. In the Fifth Circuit, for example, courts addressing summary judgment motions in promotion cases based solely on circumstantial evidence of the employees alleged
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Winston Strawn: Questions and Answers about the Sarbanes-Oxley Whistleb...
A. The primary provision in the Act that deals with whistleblowing is Section 806. Q. What is the primary focus of the new law s whistleblower protections
Pharmaceutical Industry Alert - October 14
B. Burden of Proof on Manufacturer A prima facie case of "excessive pricing" exists when "the wholesale price of the patented prescription drug in the District is over 30 percent higher than the comparable price in any high income country in which the product is protected by patents or other exclusive marketing rights." When a prima facie case is made out, a defendant bears the burden of showing that the price is not excessive. To meet this burden, the manufacturer must rely upon the
Bulletin 00-10
Bulletin 00-10
Bulletin 02-11
Bulletin 02-11
Employment & Labor Law Alert - August 15
The DOL may dismiss the complaint without investigation only if the complaint fails to state a prima facie case or the employer demonstrates, by clear and convincing evidence, that the employer would have made the same personnel decision regarding the employee absent any protected activity by the employee. The affiliated firms, Sidley Austin Brown LLP, a Delaware limited liability partnership, Sidley Austin Brown an Illinois general partnership, Sidley Austin Brown an English partnership, and
Employing the Law Volume 9
In this issue, we summarize five of these cases. Although the popular press is apt to categorize decisions as a "win" or "loss" for employers (a sin of which we are sometimes guilty as well), many cases are less easy to categorize
In the Absence of an Explanation for the Discrepancy
The Court specifically requested that Hidalgo provide an explanation for inconsistencies in the position he took before the Social Security Administration and the Workers' Compensation Board and the position he took in this case regarding his limitations. In addition, the Court set forth Hidalgo's burden of establishing a prima facie case of disability discrimination
guedes
4 At summary judgment, Hughes argued both that Hernandez had failed to establish a prima facie case of discrimination and that he had failed to rebut the company s proffered nondiscriminatory reason for not rehiring him, namely, the company s policy prohibiting the rehire of employees who were previously terminated for violation of company rules and regulations. 5 The Ninth Circuit s Prima Facie Analysis In addressing whether Hernandez had stated a prima facie case, the Ninth Circuit observed
Market Power
Some of these, including the Justice Department's case against Dentsply,1 have been litigated as traditional vertical exclusive dealing cases under Section 1 of the Sherman Act. As a disclaimer, Mr. Jacobson's role in two of the principal cases addressed below should be noted PepsiCo v. Coca-Cola Co. (representing Coca-Cola) and United States v. Visa rCard (representing American Express Company)
Employment
Complaints Must Set Forth a Prima Facie Violation of the Act: In order for the Director to commence an investigation into the allegations, the complaint must demonstrate a prima facie case of discrimination. Once the elements of a case are demonstrated, it becomes the employer’s turn to convince the Assistant Secretary, by “clear and convincing” evidence, that it would have taken the same action in the absence of the protected conduct
Information Law and Privacy Alert - October 27
In a case of first impression,the Federal Circuit has ruled that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C.§ 1201 et seq. The DMCA prohibits manufacturing or trafficking in technology or devices that are designed primarily for the purpose of circumventing technological measures used to control access to copyrighted works
Employing the Law Volume 9
CASE BACKGROUND The circumstances in which the case arose date back to 1987, when BEtruction Co., a nonunion firm, was awarded a contract to modernize a steel mill. In the recent case of Anderson v. Conrail, 17 Conrail workers alleged they were targeted for layoffs as part of an attempt by Contrail to deny them participation in the early retirement packages offered the following year and as part of an improper effort to thin its allegedly "aging workforce." BACKGROUND In July 1995, Conrail laid
Focusing: When Less Is More
Sometimes small cases teach big lessons. More than a decade ago I defended such a case
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
09-30-97: Antitrust Wire
By Chris Compton On Thursday, June 28, 2001, the United States Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the Justice Department's antitrust case against Microsoft Corporation. The case will not go back to Judge Thomas Penfield Jackson
: Perez v. County of Santa Clara (CA6 August
At trial, the Court found that Perez proved a prima facie case of racial discrimination; however, the County had established a legitimate non-discriminatory reason for the delay in promotion, which Perez could not rebut. Similarly, the Court found that Perez proved a prima facie case for retaliation; however, the County had established that there was no causal link between Perez's filing of EEO complaints and the acts upon which she premised her claim
: Jasmine Networks
...granted 7/21/04) The California Supreme Court accepts a case from the Sixth District that holds that client participation in an inadvertent disclosure of an attorney-client communication waives the privilege. There is no requirement in the statute, nor in the cases interpreting the statute, that the privilege holder intend to
: September 2003
Once an employee establishes that the employer discriminates against the majority, he must then establish the following three elements of his prima facie (or initial) case: He was qualified for the job, he was rejected despite his qualifications, and after the rejection, the employer continued to seek applications from persons with his qualifications. Furthermore, Murphy failed to establish the remaining elements of his prima facie case
: In The Courts (campaign videotapes
The plaintiff’s case pointed out that the RIF affected only one person, herself. She met her burden for a prima facie case, the court said, and the company’s argument did not merit summary judgment
: guedes
The Tenth Circuit s interpretation that automatic reassignment3 is required under the ADA, regardless of the comparative qualifications of the disabled employee, is an unnecessarily broad interpretation that is fraught with peril and ignores an entire body of case law relating to when an employer may legitimately terminate a protected employee. The Solution The primary explanation given by the Tenth Circuit for concluding that comparative employee qualifications are immaterial to an employer s
Akin Gump: Retaliation - The Suit of Choice
Circumstantial Evidence/Pretext Cases. "Mixed Motive" Cases
Ballard Spahr: Human Resources Focus: The ?New? OFCCP
The definition of an applicant is important with regard to two employment law issues: (1) only "applicants" may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes; and (2) employers must determine who qualifies as an "applicant" in order to ascertain whether hiring practices, policies or procedures have an "adverse impact" on minorities and/or women. As the OFCCP has not clearly defined the term "applicant,"
Davis Wright Tremaine: HIPAA and WIFI – Regulatory Tangles for Wireless H...
Possible penalties for USERRA violations include lost wages and benefits, liquidated damages in the case of willful violations, attorneys' fees, expert witness fees, and other litigation costs. OTHER LAWS Several other federal laws provide protections and grant special rights to members of the military, including the Soldiers and Sailors Civil Relief Act, 50 U.S.C. App
Epstein Becker & Green: PDF
NEW JERSEY REFINES ELEMENTS FOR PRIMA FACIE CASE OF DISCRIMINATION. In Zive v. Stanley Roberts, Inc., the New Jersey Supreme Court clarified the requirements for establishing a prima facie case of discriminatory discharge under the New Jersey Law Against Discrimination ("LAD")
Epstein Becker & Green: TEXT
In one case, a woman pilot complained of sex harassment and that she had been fired for complaining. Because the ultimate question in retaliation cases is the operation of the mind of the actor, the courts have approached this inquiry in much the same way as in discrimination cases — that is, a claim of retaliation can be proved either by offering direct evidence of retaliation or by offering circumstantial evidence under the burden-shifting model
Epstein Becker & Green: Butterworth: Positive Economic Effects Trump Antitrust ...
Critics of antitrust jurisprudence have suggested that much of the case law has been generated from such a formulaic, insufficiently-empirical economic viewpoint. A more practical, though somewhat novel, stance is that embodied in the recent decision by the United States District Court for the Western District of Michigan, in the case of Federal Trade Commission v. Butterworth Health Corporation and Blodgett Memorial Medical Center, 1996-2 Trade Cases ¦ 71,571; 1996 QL 570479 (W.D. Mich, Sept.
Epstein Becker & Green: PDF
Specifically, the Supreme Court removed the requirement in mixed-motive cases that a plaintiff present some form of "direct evidence" that an employment decision was motivated by an illegal reason (e. As one circuit cautioned, this could essentially "swallow whole the traditional McDonnell Douglas analysis." Mixed-Motive vs. McDonnell Douglas Cases In a typical mixed-motive scenario, a Title VII plaintiff alleges that an employment decision was motivated by an illegitimate reason (e
Honigman Miller: Sexual Harassment - Your Ticking Bomb
Cases in which employers and their employees are being sued by other employees (most often former employees) for sexual harassment have increased exponentially in the last four or five years. The vast majority of sexual harassment cases are filed by terminated female employees against their male former coemployees and the company which employed them
Hughes Hubbard: Antitrust Update
MARKETING STRATEGIES Based on the evidence of market concentration, the district court found that the FTC had established a prima facie case of unlawfulness. The court went on to hold, however, that Heinz and Beech-Nut had rebutted the FTC’s prima facie case
Lowenstein Sandler: "Anonymous 'Posters' Complicate Discover...
These cases teach that, in general, a strong prima facie case of defamation must be established at the outset of the lawsuit in the absence of any viable claim that confidential information has been posted in violation of a non-disclosure or secrecy obligation. In the first case, Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super
McGlinchey Stafford: We're Not Talking About Baseball (SOX claims)
Once the employee establishes a prima facie case, then the burden shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same adverse personnel action in the absence of the employee’s whistleblowing activity. Initially, at least until the Department of Labor issues specific regulations interpreting the SOX whistleblower provisions, the Office of Administrative Law Judges is taking the position that SOX proceedings will be conducted in
Winston Strawn: Questions and Answers about the Sarbanes-Oxley Whistleb...
A. The primary provision in the Act that deals with whistleblowing is Section 806. Q. What is the primary focus of the new law s whistleblower protections
Pharmaceutical Industry Alert - October 14
B. Burden of Proof on Manufacturer A prima facie case of "excessive pricing" exists when "the wholesale price of the patented prescription drug in the District is over 30 percent higher than the comparable price in any high income country in which the product is protected by patents or other exclusive marketing rights." When a prima facie case is made out, a defendant bears the burden of showing that the price is not excessive. To meet this burden, the manufacturer must rely upon the
Bulletin 00-10
Bulletin 00-10
Bulletin 02-11
Bulletin 02-11
guedes
4 At summary judgment, Hughes argued both that Hernandez had failed to establish a prima facie case of discrimination and that he had failed to rebut the company s proffered nondiscriminatory reason for not rehiring him, namely, the company s policy prohibiting the rehire of employees who were previously terminated for violation of company rules and regulations. 5 The Ninth Circuit s Prima Facie Analysis In addressing whether Hernandez had stated a prima facie case, the Ninth Circuit observed
Market Power
Some of these, including the Justice Department's case against Dentsply,1 have been litigated as traditional vertical exclusive dealing cases under Section 1 of the Sherman Act. As a disclaimer, Mr. Jacobson's role in two of the principal cases addressed below should be noted PepsiCo v. Coca-Cola Co. (representing Coca-Cola) and United States v. Visa rCard (representing American Express Company)
Employment
May 28
Verizon argued that the subpoena power available under Section 512 of the Digital Millennium Copyright Act (DMC) and invoked by the plaintiff in this case was unconstitutional because it authorized courts to act outside a pending case or controversy in violation of Article III and violated the First Amendment rights of subscribers. 13230 Court holds that registrant established a prima facie case against domain registrar for violation of its duties of good faith and fair dealing in contractual
Information Law and Privacy Alert - October 27
In a case of first impression,the Federal Circuit has ruled that the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C.§ 1201 et seq. The DMCA prohibits manufacturing or trafficking in technology or devices that are designed primarily for the purpose of circumventing technological measures used to control access to copyrighted works
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
08-01-00: IP Update
Hermes National v. Lederer de Paris 5th Avenue Inc., Case Nos. In remanding the case, the Second Circuit noted that although the District Court did not find evidence of point-of-sale confusion, it should consider the issue of post-sale confusion among the general public where the knock-off may be perceived as the genuine article
09-30-97: Antitrust Wire
By Chris Compton On Thursday, June 28, 2001, the United States Court of Appeals for the District of Columbia Circuit issued its long-awaited decision in the Justice Department's antitrust case against Microsoft Corporation. The case will not go back to Judge Thomas Penfield Jackson
: Perez v. County of Santa Clara (CA6 August
At trial, the Court found that Perez proved a prima facie case of racial discrimination; however, the County had established a legitimate non-discriminatory reason for the delay in promotion, which Perez could not rebut. Similarly, the Court found that Perez proved a prima facie case for retaliation; however, the County had established that there was no causal link between Perez's filing of EEO complaints and the acts upon which she premised her claim
: Jasmine Networks
...granted 7/21/04) The California Supreme Court accepts a case from the Sixth District that holds that client participation in an inadvertent disclosure of an attorney-client communication waives the privilege. There is no requirement in the statute, nor in the cases interpreting the statute, that the privilege holder intend to
: I Am Fifty
The Swierkiewicz Decision Mr. Swierkiewicz, a fifty-three year old Hungarian, was employed as an officer of Sorema N.A. ( Sorema ), a reinsurance company primarily held and controlled by a French parent corporation. The appellate court affirmed the dismissal, holding that Mr. Swierkiewicz was required to plead facts amounting to the prima facie case for discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
: In The Courts (campaign videotapes
The plaintiff’s case pointed out that the RIF affected only one person, herself. She met her burden for a prima facie case, the court said, and the company’s argument did not merit summary judgment
: guedes
The Tenth Circuit s interpretation that automatic reassignment3 is required under the ADA, regardless of the comparative qualifications of the disabled employee, is an unnecessarily broad interpretation that is fraught with peril and ignores an entire body of case law relating to when an employer may legitimately terminate a protected employee. The Solution The primary explanation given by the Tenth Circuit for concluding that comparative employee qualifications are immaterial to an employer s
Akin Gump: Retaliation - The Suit of Choice
Circumstantial Evidence/Pretext Cases. "Mixed Motive" Cases
Ballard Spahr: Human Resources Focus: The ?New? OFCCP
The definition of an applicant is important with regard to two employment law issues: (1) only "applicants" may establish a prima facie case of unlawful discrimination regarding hiring decisions under state and federal discrimination statutes; and (2) employers must determine who qualifies as an "applicant" in order to ascertain whether hiring practices, policies or procedures have an "adverse impact" on minorities and/or women. As the OFCCP has not clearly defined the term "applicant,"
Davis Wright Tremaine: HIPAA and WIFI – Regulatory Tangles for Wireless H...
Possible penalties for USERRA violations include lost wages and benefits, liquidated damages in the case of willful violations, attorneys' fees, expert witness fees, and other litigation costs. OTHER LAWS Several other federal laws provide protections and grant special rights to members of the military, including the Soldiers and Sailors Civil Relief Act, 50 U.S.C. App
Epstein Becker & Green: PDF
THIRD CIRCUIT LOWERS THRESHOLD FOR ESTABLISHING PRIMA FACIE CASE UNDER TITLE VII On December 19, 2006, the Court of Appeals for the Third Circuit held that an employer that hires an individual who lacks objective qualifications for the position cannot rely on the absence of those same qualifications in another applicant as justification for rejecting that other applicant. An unqualified individual may establish a prima facie case of gender discrimination under Title VII of the Civil Rights Act
Epstein Becker & Green: PDF
NEW JERSEY REFINES ELEMENTS FOR PRIMA FACIE CASE OF DISCRIMINATION. In Zive v. Stanley Roberts, Inc., the New Jersey Supreme Court clarified the requirements for establishing a prima facie case of discriminatory discharge under the New Jersey Law Against Discrimination ("LAD")
Epstein Becker & Green: TEXT
In one case, a woman pilot complained of sex harassment and that she had been fired for complaining. Because the ultimate question in retaliation cases is the operation of the mind of the actor, the courts have approached this inquiry in much the same way as in discrimination cases — that is, a claim of retaliation can be proved either by offering direct evidence of retaliation or by offering circumstantial evidence under the burden-shifting model
Epstein Becker & Green: Butterworth: Positive Economic Effects Trump Antitrust ...
Critics of antitrust jurisprudence have suggested that much of the case law has been generated from such a formulaic, insufficiently-empirical economic viewpoint. A more practical, though somewhat novel, stance is that embodied in the recent decision by the United States District Court for the Western District of Michigan, in the case of Federal Trade Commission v. Butterworth Health Corporation and Blodgett Memorial Medical Center, 1996-2 Trade Cases ¦ 71,571; 1996 QL 570479 (W.D. Mich, Sept.
Epstein Becker & Green: PDF
Specifically, the Supreme Court removed the requirement in mixed-motive cases that a plaintiff present some form of "direct evidence" that an employment decision was motivated by an illegal reason (e. As one circuit cautioned, this could essentially "swallow whole the traditional McDonnell Douglas analysis." Mixed-Motive vs. McDonnell Douglas Cases In a typical mixed-motive scenario, a Title VII plaintiff alleges that an employment decision was motivated by an illegitimate reason (e
Honigman Miller: Sexual Harassment - Your Ticking Bomb
Cases in which employers and their employees are being sued by other employees (most often former employees) for sexual harassment have increased exponentially in the last four or five years. The vast majority of sexual harassment cases are filed by terminated female employees against their male former coemployees and the company which employed them
Hughes Hubbard: Antitrust Update
MARKETING STRATEGIES Based on the evidence of market concentration, the district court found that the FTC had established a prima facie case of unlawfulness. The court went on to hold, however, that Heinz and Beech-Nut had rebutted the FTC’s prima facie case
McGlinchey Stafford: We're Not Talking About Baseball (SOX claims)
Once the employee establishes a prima facie case, then the burden shifts to the employer to demonstrate, by clear and convincing evidence, that the employer would have taken the same adverse personnel action in the absence of the employee’s whistleblowing activity. Initially, at least until the Department of Labor issues specific regulations interpreting the SOX whistleblower provisions, the Office of Administrative Law Judges is taking the position that SOX proceedings will be conducted in
Sidley Austin: Supreme Court Paves Way For Broad Enforcement Of Arbitr...
The DOL may dismiss the complaint without investigation only if the complaint fails to state a prima facie case or the employer demonstrates, by clear and convincing evidence, that the employer would have made the same personnel decision regarding the employee absent any protected activity by the employee. The affiliated firms, Sidley Austin Brown LLP, a Delaware limited liability partnership, Sidley Austin Brown an Illinois general partnership, Sidley Austin Brown an English partnership, and
Weil: Eligibility of Petitioning Creditors Determines Subject...
In Key Mechanical Inc. v. BDC 56 LLC (In re BDC 56 LLC), the Second Circuit affirmed the lower courts dismissal of an involuntary case where petitioning creditors failed to demonstrate that their claims were free from bona fide dispute. In so holding, the Second Circuit rejected the view endorsed by the Ninth Circuit, that the undisputed claim requirement is not jurisdictional, but goes to the merits of the case
Weil: Control Person Liability Under The Exchange Act; Possib...
2d 281 (S.D.N.Y. Feb. 19, 2003) and In re WorldCom, Inc. Securities Litigation, 2003 WL 21219049 (S.D.N.Y. May 19, 2003) are the most significant recent efforts by courts in the Second Circuit to determine whether a culpable state of mind is a prima facie element of a section 20(a) claim. Both Initial Public Offering and WorldCom in contrast to the majority of cases in the seven years preceding these cases hold that a plaintiff need not plead nor ultimately prove that a defendant acted with a
Weil: Assessment of Qualifications In Discriminatory Failure ...
In the Fifth Circuit, for example, courts addressing summary judgment motions in promotion cases based solely on circumstantial evidence of the employees alleged qualifications have ruled that the worker must present evidence indicating that his or her qualifications are so much stronger than the employer s candidate that any finder of fact could reasonably infer discrimination from the discrepancy in qualifications to avoid dismissal. In this article, we examine cases involving claims for
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
Weil: Recent Amendments To New York City Human Rights Law
The Council enacted this broadened definition of gender primarily to protect transgendered individuals from employment discrimination. These two cases held that transsexual employees could state a claim for gender discrimination under the NYCHRL. In Maffei v. Kolaeton Industry, Inc., 164 Misc
