Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Blurred Lines: Third Circuit’s Lanham Act Attorneys’ Fees Analysis Follows Recent Supreme Court Ruling in Patent Case

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Posted in Patent / Trademarks

On September 29, 2014

The Court of Appeals for the Third Circuit recently decided that the U.S. Supreme Court’s April decision on attorneys’ fees in a patent case, Octane Fitness, LLC v. Icon Health & Fitness, Inc., should also be applied in trademark cases under the Lanham Act. See Fair Wind Sailing, Inc. v. Dempster, Nos. 13-3305 & 14-1572 (3d Cir. Sept. 4, 2014). Defendant Dempster had successfully moved to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure and was awarded its attorneys’ fees under § 35(a) of the Lanham Act and the Virgin Islands Code. Plaintiff Fair Wind Sailing appealed the fee award. The Third Circuit ultimately vacated the District Court’s fee award and remanded, instructing the court below to utilize an inquiry consistent with the Supreme Court’s decision in Octane Fitness.

Classwide Arbitration is a Gateway Issue That Must Be Decided by Courts Not Arbitrators

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Posted in Class Action Defense

On September 25, 2014

In Opalinski v. Robert Half International Inc., the Third Circuit recently tackled the question of whether a district court— rather than an arbitrator—should decide if an agreement to arbitrate between two parties also authorizes the arbitration of unidentified individuals’ claims on a classwide basis. Concluding that the district court should decide this question, the Third Circuit joined the Sixth Circuit as the only Courts of Appeals to squarely confront the “who decides” inquiry.

Rule Amendments Update: Judicial Conference Approves Proposed Changes

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 25, 2014

On September 16, 2014, the Judicial Conference approved, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments and the approval process, see our previous blog posts from June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013.) The proposed amendments, which include changes to the definition of the scope of discovery in Rule 26(b)(1) and the applicable standard courts should apply when considering sanctions for ESI spoliation under Rule 37(e), will now be submitted to the U.S. Supreme Court for consideration and approval. If adopted by the Supreme Court before May 1, 2015, and Congress does not intervene, the proposed amendments will take effect on December 1, 2015.

Unified Patents Petitions for IPR to Counter Patent Troll PanTaurus’ Patent Litigation Assault

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Posted in Patent / USPTO

On September 25, 2014

Much debate has centered on patent reform and efforts to curtail the litigious activities of patent assertion entities (PAEs) also referred to as “patent trolls.” However, and as underscored for example by the number of patent lawsuits filed by Texas-based PAE PanTaurus, LLC this past year, PAEs continue to present a significant patent litigation presence.

NJDEP Document Review Process Curtailed: More Autonomy for LSRPs

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Posted in Development/Redevelopment / Environmental and Green Issues

On September 22, 2014

Unable to keep up with submittals from Licensed Site Remediation Professionals (LSRP) and with the resulting increase in review times, the New Jersey Department of Environmental Protection (NJDEP) has recently decided to defer the review of non-Response Action Outcome (RAO) documents until an RAO is submitted. This announcement comes four years into the LSRP program, which as designed, has begun to eliminate the backlog of contaminated sites awaiting attention. However, the very success of the LSRP program has created its own backlog as NJDEP finds itself falling behind in review of submittals.

Supreme Court Limits EPA’s Authority to Regulate Carbon Emissions from Stationary Sources

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Posted in Environmental and Green Issues

On September 18, 2014

Since the Supreme Court’s 2007 decision in Massachusetts v. EPA, it has been clear that the U.S. Environmental Protection Agency (“EPA”) has the authority under the Clean Air Act (“CAA”) to regulate emissions of greenhouse gases (“GHGs”) from mobile sources because GHGs fall within the CAA’s definition of an “air pollutant.” When EPA sought to regulate GHG emissions from stationary sources (mainly power plants and factories), however, the Court sang a slightly different tune. In Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”), the Court rejected EPA’s attempt to regulate GHG emissions from stationary sources under two regulatory programs based solely on those emissions, while affirming the agency’s ability to regulate such emissions from so-called “anyway” sources that are already undergoing regulatory review because of emissions of other pollutants.

Attempting to Shoot for the Moon and Settle For the Stars During the Meet and Confer Process May Result in Obtaining Neither

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 8, 2014

A recent decision out of the Northern District of California provides a sobering reminder that a party’s obligation to meet and confer must be undertaken in good faith. If a party is overly aggressive – and therefore perceived not to be acting in good faith – it may wind up with nothing. Boston Scientific Corporation v. Lee, was a fairly typical case involving a former employee’s alleged theft of trade secrets. Defendant Dongchul Lee (Lee) left Plaintiff Boston Scientific Corp. (Boston) and began working for a competitor, nonparty Nevro Corp. (Nevro). Shortly thereafter, Boston sued Lee, claiming theft of trade secrets and violation of a confidentiality agreement.

Pennsylvania Supreme Court Holds that General Contractor was Immune from Suit by Employee of Subcontractor Under Workers’ Compensation “Statutory Employer” Doctrine

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Posted in Construction / Construction Litigation / Contract Claims

On September 2, 2014

In a case which has attracted a great deal of attention from construction and insurance industry groups, and prodded the filing of numerous amici curiae briefs, the Pennsylvania Supreme Court in Patton v. Worthington Associates, overturned a $1.5 million jury verdict and ruled in favor of the defendant general contractor based on the “statutory employer” immunity doctrine under Pennsylvania’s Workers’ Compensation Act (the “Act”).

Changes to FLSA Overtime Exemption for Domestic Service Workers are Coming

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Posted in Labor / Wage and Hour

On August 22, 2014

Effective January 1, 2015, the Fair Labor Standards Act overtime exemption for “domestic service workers” will change, having significant ramifications for employers of these employees. Until this change, domestic service workers generally have been exempt from overtime compensation, which means they need not be paid at the rate of time and a half for hours worked in excess of 40 per workweek. The U.S. Department of Labor has issued a Fact Sheet to summarize the changes.

Sixth Circuit Becomes Latest Federal Appeals Court to Rule That CERCLA’s Contribution and Cost Recovery Provisions Provide Mutually Exclusive Remedies to PRPs

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Posted in Environmental and Green Issues

On August 20, 2014

The United States Court of Appeals for the Sixth Circuit became the latest federal court of appeals to weigh in on the dichotomous nature of Superfund claims made under Sections 107 and 113 in the wake of the United States Supreme Court’s decision in United States v. Atlantic Research Corp., 551 U.S. 128 (2007). In Hobart Corp. v. Waste Management of Ohio, Inc., the Sixth Circuit held that Sections 107(a)(4)(B) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, “provide mutually exclusive remedies,” an issue left open in Atlantic Research.

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