Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

NLRB Vacates Recent Joint Employer Decision

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Posted in Labor

On March 12, 2018

On February 26, 2018, the National Labor Relations Board (NLRB) rescinded its recent 3-2 decision in Hy-Brand Indus. Contractors, Ltd., 365 NLRB No. 156 (2017), which had restored the traditional standard for determining when multiple entities are joint employers under the National Labor Relations Act (NLRA). The Board’s action stemmed from a determination by the NLRB’s Designated Agency Ethics Official that one of the Board Members who voted in favor of the Hy-Brand decision should not have participated in that decision. The vacatur of the Hy-Brand decision is a setback for the business community. As we previously reported, the Hy-Brand decision overruled the NLRB’s controversial joint employer decision in Browning-Ferris Indus. of Cal., Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) and restored the decades-old standard that required an entity to actually exercise direct and immediate control over another entity’s essential employment conditions and terms to be a joint employer. In Browning-Ferris, the Board decided that two or more entities could be jointly liable under the NLRA if one of the entities merely reserves the right to indirectly control essential employment conditions and terms of another entity. Once again, this funky joint employer standard as set forth in Browning-Ferris is NLRB law. In a memorandum dated February 9, 2018, the Board’s Inspector General, David P....

Ninth Circuit Reverses $200 Million Settlement and Class Certification For Lack of Proper Choice of Law Analysis

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Posted in Class Action Defense

On February 14, 2018

In a decision that may make it harder to settle cases on behalf of nationwide classes, the Ninth Circuit recently overturned a $200 million class action settlement and vacated the certification of a nationwide class of consumers, finding the district court failed to examine whether different states’ laws applied to the class members’ claims and whether Rule 23’s predominance requirement was satisfied. The dispute was rooted in a 2012 investigation which found that Hyundai and Kia deviated from U.S. Environmental Protection Agency fuel economy testing protocols and overstated the fuel efficiency estimates in advertisements and car window stickers for certain 2011, 2012, and 2013 vehicles. A California federal court approved the settlement in June 2015. However, in In re Hyundai and Kia Fuel Economy Litigation, a split three-judge panel of the Ninth Circuit vacated the District Court’s approval order and certification of a nationwide class of consumers. Five objectors appealed from the class settlement arguing, among other things, that the settlement violated consumer rights in states other than California. The Ninth Circuit held that the District Court erred by failing to apply California’s choice of law rules to determine whether California law could apply to all plaintiffs in a nationwide class or, alternatively, if the court had to apply the law of each state. According to...

David Freeman to Speak at New York University Brownfields Program

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Posted in Development/Redevelopment / Environmental and Green Issues

On February 6, 2018

David J. Freeman, a Director in the Gibbons Environmental Department, will participate in an upcoming program entitled “New Opportunities in Brownfield Urban Redevelopment.” The event will be hosted by the NYU School of Professional Studies (NYUSPS) Schack Institute of Real Estate on February 22 from 9:00 to 11:00 a.m. This event is free to attend, but registration is required. Mr. Freeman will discuss recent developments in the federal, New York State, and New York City brownfield programs, including the controversial proposal in Governor Cuomo’s budget bill to defer payment of certain tax credits earned under the New York State program. In addition to Mr. Freeman, panelists will include Barry Hersh, Clinical Associate Professor, NYUSPS Schack Institute of Real Estate; Jean Hamerman, Deputy Director, Center for Creative Land Recycling; Michael Taylor, President, Vita Nouva LLC; and Daniel Walsh, Director, New York City Mayor’s Office of Environmental Remediation.

A Cloud of Confusion: The EDPA Compels Google to Disclose Data Stored Abroad Under the Stored Communications Act

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Posted in E-Discovery: Legal Decisions and Court Rules

On January 29, 2018

The Eastern District of Pennsylvania, in a departure from the Second Circuit’s Microsoft ruling, recently required Google to comply with search warrants issued pursuant to the Stored Communications Act (“SCA”), and produce data stored on servers abroad. The Eastern District joins other district courts, including the Northern District of California and the Eastern District of Wisconsin, in requiring technology companies to comply with subpoenas or warrants issued pursuant to the SCA and produce internationally-stored data. See In re Two Email Accounts Stored at Google, Inc., No. 17-1234, 2017 U.S. Dist. LEXIS 101691 (E.D. Wis. June 30, 2017); In re Search of Content that is Stored at Premises Controlled by Google, No. 16-80263, 2017 U.S. Dist. LEXIS 59990 (N.D. Cal., Apr. 19, 2017). In In re Google Search Warrants, the court found that Google’s compliance with the government’s warrants required a domestic application of the SCA because the relevant conduct, data retrieval and production, took place at Google’s headquarters in California. In support of its holding, the court distinguished Google’s method of data storage from Microsoft: whereas Microsoft stored its data in different centers abroad, Google breaks its data into “shards,” and “stores the shards in different network locations in different countries at the same time.” These data shards “only become comprehensible when the file is fully...

President Trump Nominates Fifth Board Member to Round Out NLRB

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Posted in Labor

On January 19, 2018

Earlier this month, President Donald Trump nominated management-side labor attorney, John F. Ring, to the National Labor Relations Board (NLRB). This is a significant nomination because, if Mr. Ring receives Senate approval, the Board will once again be poised to revisit pro-union actions that the NLRB took under the prior administration. This is good news for the business community. Last month, a fully-constituted five member Board took several actions that began a much anticipated releveling of the playing field between Big Labor and Corporate America in the aftermath of profound pro-union actions. Last month’s actions included decisions restoring traditional standards for deciding what constitutes an “appropriate collective bargaining unit” and when two or more entities are “joint employers.” These changes were welcomed by the business community because they provide a more balanced approach to deciding these issues. Shortly after the NLRB’s actions last month, the term of then-Chairman Philip A. Miscimarra expired, leaving one seat at the Board open and the NLRB presumably split two-to-two on a host of additional controversial pro-union actions taken by the Board under the prior administration. (Those actions include the propriety of the NLRB’s “quickie” election rule and a decision giving employees a presumptive right to use their employers’ email systems for non-business purposes.) Two of the current Board Members, Mark Gaston Pearce and Lauren...

Gov. Murphy’s First Executive Order Prohibits State Government from Asking Applicants about Salary History

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Posted in Discrimination / State Legislation

On January 18, 2018

Governor Phil Murphy has signed an executive order which bars state workers from asking job applicants seeking positions with the state about their previous salaries in his first official act after his swearing-in on January 16, 2018. State entities may now only inquire as to an applicant’s past salary history after the entity has made a conditional offer of employment, which includes an explanation of the compensation package being offered to the applicant. The goal of the executive order is to eliminate wage inequalities that result from female employees who accept lower starting salaries and then remain on a lower compensation track, with pay disparities compounding over time. Significantly, at the signing ceremony, the Governor stated that he would sign a bill that extended these same provisions to private sector employers which the legislative sponsors vowed to move quickly to his desk. In fact, legislation has already been introduced that prohibits an employer from inquiring about the salary history of an applicant. Assembly Bill 1094 was introduced on January 9, 2018 by Assemblywoman Joanne Downey (D-11) and referred to the Assembly Labor Committee. Senate Bill 559 was introduced by Senator Nia Gill (D-34) on January 9, 2018 and referred to the Senate Labor Committee. The legislation, described by legislative sponsors as an effort to promote...

DOL Adopts Primary Beneficiary Test to Determine Intern Status Under Wage Hour Law

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Posted in Wage and Hour

On January 16, 2018

On January 5, 2018, the Department of Labor (DOL) withdrew its six-factor test, established by a 2010 DOL guidance, used to determine whether interns and students are considered employees and, thus, covered by the Fair Labor Standard Act (FLSA), and, in its place, adopted a seven-factor test – listed in Fact Sheet 71 – applied by the Second Circuit in Glatt v. Fox Searchlight Pictures, Inc. The abandoned six-factor test, issued under the Obama Administration, required that all of the criteria be met in order to find that an intern is not an employee under the FLSA. In 2015, the Second Circuit disregarded the DOL test in the Glatt ruling. In deciding against the unpaid interns at Fox Searchlight, the Second Circuit held that the six-factor test was too rigid. Subsequently, the Second Circuit ruled that in determining whether interns are classified as employees under the FLSA, the “economic reality” between the intern and the employer should be evaluated to determine which party is the “primary beneficiary” of the relationship. The Second Circuit applied a non-exhaustive list of seven factors to use in the “primary beneficiary” test, but cautioned that “[a]pplying these considerations requires weighing and balancing all of the circumstances” and “[n]o one factor is dispositive.” Importantly, the new DOL guidance announcing the adoption...

TC Heartland Changed Controlling Law for Waiver of the Right to Object to Venue Under Rule 12

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Posted in Intellectual Property

On January 12, 2018

The Federal Circuit recently decided In re Micron, in which the panel resolved a district court split, holding that TC Heartland v. Kraft Foods changed controlling law for the purposes of Rule 12 waiver. Micron petitioned the Federal Circuit for a writ of mandamus to set aside the district court’s denial of Micron’s post-TC Heartland motion to dismiss or to transfer the case for improper venue. The district court held that Micron had waived its venue objection under Rule 12(g)(2) and (h)(1)(A) by failing to object to venue in its initial motion to dismiss, concluding that TC Heartland was not a change of law that would make waiver inappropriate. The Federal Circuit granted the petition for mandamus, vacated the district court order, and remanded. A defendant objecting to venue may file a motion to dismiss for improper venue under Rule 12(b)(3). The ability to file a Rule 12(b)(3) motion, however, is constrained by Rule 12(h)(1)(A), which says a venue defense under Rule 12 is waived if it is omitted from an earlier filed motion to dismiss under Rule 12, in which the venue defense was “available to the defendant.” The question before the Federal Circuit was “whether the [TC Heartland] venue defense was available to Micron in August 2016.” The panel answered in the negative because...

Recent Federal Circuit Decision Illustrates Challenges in Proving Obviousness

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Posted in Patent / USPTO

On January 11, 2018

This non-precedential decision is of interest not for any new exposition of patent law but merely as a convenient marker to demonstrate how far the pendulum has swung away from the recent loose standards allowing disparate references to be combined to support an obvious rejection of a patent claim. In the district court below, a bench trial on a Hatch-Waxman infringement suit brought against defendants Dr. Reddy’s and Teva by Genzyme and Sanofi resulted in a decision for the plaintiffs. The court held that the defendants had failed to prove that the sole claim in issue (claim 19) was invalid for obviousness and as infringement was not disputed the verdict of infringement was entered. The technology in the case related to a method for mobilizing and harvesting stem cells in a subject by first treating the subject with G-CSF and then with plerixafor thereby increasing the number of stem cells available for harvesting from the blood for use in treating leukemia by transplantation. The defendants had relied on a combination of references to effectuate an obviousness defense. In a first combination, a paper by Hendrix et al. was cited to show that plerixafor produced increased white blood cells (WBCs) in the circulation. The authors suggested that the action of this agent may cause “release of...

Wendy Stein Promoted to Director in Intellectual Property Department

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Posted in Intellectual Property

On January 5, 2018

Gibbons P.C. is pleased to announce that Wendy R. Stein has been named a Director in the Intellectual Property Department in the firm’s New York office, effective January 2, 2018. “We are extremely proud of Wendy and we look forward to working with her in her new role,” said Patrick C. Dunican Jr., Chairman and Managing Director of Gibbons. At Gibbons, Ms. Stein focuses her practice on intellectual property disputes, primarily in the patent and trademark areas. She has extensive experience litigating a broad variety of patent infringement and other matters in the pharmaceutical and life sciences arenas, including matters related to a variety of medications, and SABAs used to treat asthma and/or COPD. Ms. Stein also has substantial experience litigating patent infringement disputes in the non-pharma area, including matters related to GPS devices, gaming, hand-held devices, and packaging. In addition, Ms. Stein has litigated trademark ownership and infringement/counterfeiting disputes involving perfume, apparel, electronics, real estate, and gaming. Ms. Stein has appeared before federal and state courts throughout the United States including New York, New Jersey, Delaware, California, Florida, Texas, District of Columbia, Illinois, and Nebraska, and before the Court of Appeals for the D.C. and Federal Circuits, recently obtaining a Rule 36 affirmance of five separate summary judgments concerning alleged patent infringement, false patent...

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