Gibbons Law Alert
The Supreme Court has raised the class certification stakes yet again, holding in Halliburton v. Erica P. John Fund that defendants in securities class actions may rebut the fraud-on-the-market presumption of reliance at the class certification stage. Over the objections of Justices Thomas, Scalia, and Alito, the Court declined to toss out the presumption altogether.
Human Resource Executive® magazine has featured John C. Romeo, a Director in the Employment & Labor Law Department at Gibbons P.C., on its list of the “Nation’s Most Powerful Employment Attorneys,” in the “Up-and-Comers” category. This is the seventh edition of the “Nation’s Most Powerful Employment Attorneys,” a collaboration between Human Resource Executive® and Lawdragon, a media company that has issued “best of” lawyer lists since 1989. This guide is intended to offer corporate counsel and human resource professionals a guide to finding lawyers who can help resolve difficult employment situations and comply with workplace-related laws and regulations. This year’s list of 210 employment lawyers featured 40 up-and-comers (who have been in practice for less than 20 years) recommended by corporate counsel.
Last week, in what appeared to be one of the first pharmaceutical based cases brought to a decision under the IPR regime, the Patent Trial and Appeals Board (PTAB) of the US Patent and Trademark Office held that the majority of claims in a series of vitamin supplement patents were invalid. This decision turns the welcoming lights on for the generic drug industry to utilize the inter partes review (IPR) procedures under the America Invents Act to challenge proprietary pharmaceutical patents. In this matter, the challenger Gnosis, a defendant in an infringement action brought by Merck & Cie, South Alabama Medical Science Foundation and Parmlab, which was stayed pending the IPR decision, successfully defended against the four patents in issue: United States Patent Nos. 5,997,915, 6,011,040, 6,673,381 and 7,172,778 which are directed to compositions and methods of use involving chiral reduced natural folate compounds used as food supplements to prevent or treat folate deficiency diseases.
On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.
We have previously posted our analysis of the oral arguments held before the Supreme Court in American Broadcasting Companies, Inc., et al., v. Aereo, Inc., No. 12-451, this past April. On June 25, 2014, the Supreme Court announced its decision in the case, holding that Aereo performs the television broadcasting companies’ copyrighted works publicly through the function of their service/system within the meaning of the Transmit Clause of the Copyright Act of 1976. The Court tried to carefully limit its holding to only the facts particular to Aereo’s system in order to avoid precluding the development of “cloud computing,” a still burgeoning field of technological and economical promise.
The Equal Employment Opportunity Commission (“EEOC”) — the federal agency responsible for the enforcement of federal anti-discrimination laws — recently issued guidance on religious accommodation under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically focusing on religious dress and grooming practices. The publication, entitled “Religious Garb and Grooming in the Workplace: Rights and Responsibilities,” along with its accompanying Fact Sheet, are designed to assist employers to comply with their legal responsibilities under Title VII.
The New Jersey Department of Environmental Protection has more formally confirmed the scope of the responsibility to address historic pesticide use on commercial and industrial properties: namely that a party need not remediate historic pesticide use unless there is a land use change to residences, schools, child care centers and playgrounds. On June 20, 2014, the NJDEP published an additional notice for Response Action Outcomes, the written determination by a Licensed Site Remediation Professional that a remediation is complete, which specifically permits completion of a remediation without investigation of contamination from historic pesticide use. The notice would only apply to contamination from the application of such pesticides to, for example, a former orchard or farm, but not contamination from a discharge caused by the mixing, manufacturing or other handling of such chemicals. NJDEP approval is not required for an LSRP to use this notice.
We have previously posted on proposed federal and state legislation aimed at addressing the toll of patent troll litigation on the U.S. economy. To date, twenty-five states have passed or are considering legislation aimed at curbing bad-faith patent assertion through state law, either based in consumer protection or through laws directed at bad business practices. From Vermont, one of the first states to adopt such legislation, MPHJ Technology Investments LLC (“MPHJ”), an alleged patent troll, seeks the opinion of the Court of Appeals for the Federal Circuit on the issue of federal patent law preemption.
On May 29-30, 2014, the Judicial Conference’s Standing Committee on Rules of Practice and Procedure (the “Standing Committee”) met and approved the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from May 27, 2014, February 10, 2014, and May 6, 2013.) The Standing Committee approved the entire slate of proposed amendments, including changes to the scope of discovery, as defined in Rule 26(b)(1), and changes to the standard to be applied by courts when imposing curative measures or sanctions for the spoliation of electronically stored information, as per Rule 37(e). Before approving the proposed amendments, the Standing Committee made several minor revisions, including changes to the proposed Committee Notes to Rules 26 and 37 (the meeting minutes setting forth the precise changes were not available as of writing). The Agenda Book from the Standing Committee’s meeting is available.
Earlier today, six trademark registrations for the Washington Redskins football team were cancelled on the basis that they are disparaging. In the long-awaited decision of Blackhorse v. Pro-Football, Inc., the Trademark Trial and Appeal Board (“TTAB”) found that the petitioners had shown “by a preponderance of the evidence that a substantial composite of Native Americans found the term REDSKINS to be disparaging in connection with [the football team’s] services” during the time period when registration was sought.