Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Protecting Your Company – Trademark Basics You Need to Know

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Posted in Trademarks

On February 29, 2012

The Gibbons Women’s Initiative is hosting an upcoming program for in-house counsel entitled, “Protecting Your Company – Trademark Basics You Need to Know,” on Thursday, March 8 from 8:30 – 10:15 am at Gibbons Newark Office. This program will feature Catherine M. Clayton, a Director in the Gibbons Intellectual Property Department, who leads the firm’s trademark practice. Ms. Clayton has a broad range of experience in trademark and copyright law, and her practice encompasses litigation, licensing and prosecution.

The “Linsanity” Continues …..

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Posted in Trademarks

On February 24, 2012

The New York Knicks’ rising superstar point guard, Jeremy Lin, continues to wow fans around the world. Lin’s NBA ascent also has prompted a rush to the Trademark Office. Over 20 applications for word marks that bear the letters L-I-N already have been filed. These include LIN-SATIONAL; ALL LIN; LINSPIRATION; I’M A LINNER; LINSOMNIA: LINCREDIBLE; and other derivations using the star’s last name. The frenzy began with applications for the seemingly ubiquitous LINSANITY catch phrase, which were filed on February 7 and February 9, as the star’s career took off. Most of the applications to date have been filed on an intent to use basis, that is, the applicant has expressed a bona fide intent to use the mark in interstate commerce.

Second Circuit Holds That Concepcion Preemption Analysis Does Not Apply to Federal Statutory Claims, Rejecting Class Action Waiver in Arbitration Agreement Where Individual Plaintiffs Would Be Left Unable to Vindicate Their Rights

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Posted in Class Action Defense

On February 24, 2012

In In re: American Express Merchants’ Litigation (Feb. 1, 2012) (“AmEx III”), the Second Circuit refused to enforce American Express’s class action waiver where the “practical effect” would be to deprive plaintiffs of the ability to vindicate their federal statutory rights. By framing the issue in terms of the ability to vindicate federal statutory rights, the Second Circuit sidestepped the preemption analysis mandated by the United States Supreme Court in AT&T Mobility LLC v. Concepcion. But whether AmEx III is ultimately reversed, or deemed to carve out an exception to Concepcion where federal statutory rights are at issue, it brings into sharp focus the real question on everyone’s mind: Can companies bar class actions in both courts and arbitral forums in favor of bilateral arbitration, and if so, how?

Still No Cure for the Malady of Jurors’ Social Media Use During Trials and Deliberations

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Posted in Litigation Preparedness and Strategies

On February 24, 2012

Having recognized the challenges regarding jurors’ use of social media in the courtroom, the Committee on Court Administration and Case Management requested that the Federal Judicial Center (“FJC”) survey district court judges to identify effective mechanisms to curtail this growing problem. In response, the FJC queried 952 district judges and issued Jurors’ Use of Media During Trials and Deliberations, which demonstrates that despite the various strategies devised, it is virtually impossible to prevent jurors’ use of social media and is equally difficult to detect each and every impropriety. This issue is not novel; in fact, this blog has previously reported on instances where jurors’ use of social media had a significant impact on a proceeding as well as suggestions on how to avoid such pitfalls. Click here for those postings.

New York’s Appellate Courts Surface on Litigation Hold – First Department Confirms Reasonable Anticipation of Litigation Requires Implementation of Litigation Hold

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 21, 2012

New York’s First Department Appellate Division is the first New York state appellate court to expressly adopt the “reasonable anticipation trigger” articulated in Zubulake v. UBS Warburg LLC, 220 FRD 212 (S.D.N.Y. 2003): “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Id. at 218. On January 31, 2012, the First Department affirmed the November 9, 2010 Order of the Honorable Richard B. Lowe III which awarded an adverse inference sanction to plaintiff, Voom HD Holdings LLC (“Voom”) against defendant EchoStar Satellite, L.L.C. (“EchoStar”). Voom H.D. Holdings LLC v. EchoStar Satellite LLC, 2012 N.Y. Slip Op. 00658 (1st Dep’t 2012). The First Department found the Zubulake standard to be “harmonious” with existing New York precedent in the traditional discovery context and “provides litigants with sufficient certainty as to the nature of their obligations in the electronic discovery context and when those obligations are triggered.”

Lester v. Allied Part 2: “Clean Up” of Compromising Social Media Evidence Can Result in Severe Sanctions

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Posted in E-Discovery: Legal Decisions and Court Rules

On February 21, 2012

Though some practitioners might be in denial, the follow-up sanctions orders in Lester v. Allied Concrete Co. et al. dated May 27, 2011 and September 23, 2011 should leave no room for doubt that preservation of social media is as important as any other electronic data or discovery. Similarly, the penalty for intentionally destroying such evidence may reach beyond the purse strings.

IP Licenses in Bankruptcy Webinar!

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Posted in Intellectual Property

On February 17, 2012

The recently announced Kodak bankruptcy has focused much needed attention on the intersection of bankruptcy law with IP rights. Gibbons P.C., with robust bankruptcy and IP practices, will be participating in a live webinar on Tuesday, February 21, 2012 from 1:00 – 2:30 pm to address the impact of the Bankruptcy Code on IP licenses. The webinar will feature an update on case law developments and practical tips for dealing with IP licenses in a bankruptcy. Participants will be invited to a live Q & A session with the speakers at the end of the panel discussion. CLE credit will be available.

New Jersey District Court Enjoins Former Financial Services Employee from Taking Customer Information

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Posted in Restrictive Covenants

On February 17, 2012

In a case to be noted by financial services entities that are signatories to the “Protocol for Broker Recruiting,” a New Jersey District Court issued a preliminary injunction to a financial services employer, Ameriprise Financial Services, Inc. (“plaintiff”) to prevent a former financial advisor employee from retaining certain client information that he downloaded from his computer prior to his departure from plaintiff. Plaintiff was a party to the “Protocol for Broker Recruiting” that prescribes a method for a departing employee to retain certain client information when leaving for another financial services institution. To grant the injunction, the Court found that plaintiff showed it likely would succeed on its underlying breach of contract claim, it would suffer immediate irreparable harm absent the injunction, defendant would not suffer harm if enjoined, and the injunction favors the public’s interest. The Court essentially decided that if the Protocol is not followed in the first instance, a departing financial representative’s subsequent compliance is tainted and insufficient to withstand subsequent legal challenge.

Third Circuit, En Banc, Approves Settlement Class Containing Members Who Lack “Viable Claim”

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Posted in Class Action Defense

On February 14, 2012

The U.S. Court of Appeals for the Third Circuit has issued an en banc opinion in Sullivan v. DB Investments, Inc. affirming a District Court’s certification of two nationwide settlement classes. In sum, though the multiplicity of states’ laws would affect the predominance inquiry in a litigated nationwide class action, in the settlement context, the Circuit eased the burden somewhat by declining to require a showing that each class member possess “a viable claim” based upon what would have been the applicable state statute or law.

NJDEP Clarifies Impact of Site Remediation Reform Act on Requirements of Administrative Consent Orders and Remediation Agreements

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Posted in Environmental and Green Issues

On February 14, 2012

With full implementation of the Site Remediation Reform Act on the horizon, the New Jersey Department Environmental Protection (NJDEP) recently clarified that for parties currently proceeding with remediation under NJDEP oversight pursuant to an Administrative Consent Order (ACO) or Remediation Agreement (RA), such parties will be expected to engage a Licensed Site Remediation Professional no later than May 7, 2012. Any ACO/RA requirements to obtain NJDEP pre-approval of reports and workplans will be held in abeyance. Likewise, any ACO/RA specific timeframes will also be held in abeyance. Instead, responsible parties must meet all regulatory and mandatory timeframes prescribed in applicable rules. However, the ACO/RA will otherwise remain in effect until the remediation is complete or covered by a remedial action permit and parties will be subject to, among other requirements, the remediation funding source requirements and stipulated penalties.

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