Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Caveat Author: Understanding Copyrights, Revisited ….

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Posted in Copyright

On January 11, 2012

We previously reviewed a copyright case involving Marvel and a comic book author’s relinquishment of any copyrights in the iconic characters Hulk, Spiderman, the X-Men and others because the works were determined to be “for hire.” Marvel Worldwide v. Kirby. In an unrelated action, Judge Forrest of the Southern District of New York recently found in favor of Marvel, in Gary Friedrich Enters., LLC v. Marvel Enters., Inc. The court ruled that the plaintiff writer, Gary Friedrich, although he indisputably conceived of the character, “Ghost Rider,” and wrote the initial comic book, had ceded all rights in the character to Marvel.

IP Law 2012: A Look Ahead . . . .

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Posted in Patent / Pharmaceuticals / Trademarks / USPTO

On January 4, 2012

Coming off a year that included the Smith-Leahy “America Invents Act,” 2012 portends to have some significant developments in IP law. Decisions for IP practitioners and industry to watch for include: the Supreme Court’s decision in Caraco Pharm. Labs. Ltd. v. Novo Nordisk A/S, regarding “use codes” and section viii carve-outs under the Hatch-Waxman Act; the Supreme Court’s decision in Mayo v. Prometheus, regarding patentable subject matter, post-Bilski; and the Federal Circuit’s upcoming en banc decisions in McKesson and Akamai, regarding joint infringement liability.

Third Circuit Holds That Plaintiffs Lack Standing to Sue for Data Breach Where Alleged Harm is Only Speculation That Personal and Financial Information May Be Misused

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Posted in General Litigation

On January 3, 2012

The Third Circuit in Reilly v. Ceridian Corp. affirmed the district court’s dismissal of a putative class action against payroll processing company Ceridian for a data breach, holding that the plaintiffs lacked standing because their alleged injuries were too speculative. In December 2009, an unidentified hacker breached Ceridian’s Powerpay system and potentially gained access to personal and financial information belonging to approximately 27,000 employees at 1,900 companies. It was unknown, however, whether the hacker read, copied, or understood the data. Two individual plaintiffs filed suit on behalf of all individuals whose information was exposed in the security breach, alleging that they (1) had an increased risk of identity theft, (2) incurred costs to monitor credit activity, and (3) suffered emotional distress.

GPX Intl. Tire Corp. v. U.S: Federal Circuit Affirms ITC

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Posted in International Trade Commission

On December 30, 2011

Last week in GPX Intl. Tire Corp. v. U.S., the Federal Circuit decided whether both antidumping and countervailing duties may be imposed on a non-market economy (“NME”) country like China. The Federal Circuit affirmed the International Court of Trade’s (“ITC”) ruling that countervailing duty law does not apply to an NME country, but for different reasons than the ITC. Earlier, the ITC had reasoned that the U.S. Department of Commerce’s (“Commerce”) 2007 interpretation of the law was “unreasonable” because of the high probability of “double counting.” Alternatively, the Federal Circuit came to its decision by looking at the statute’s Congressional intent. Specifically, when Congress amended and reenacted countervailing duty law in 1988 and 1994, the Federal Circuit concluded that government payments could not be characterized as “subsidies” in an NME context. Therefore, countervailing duty law does not apply to NME countries.

Computer Fraud and Abuse Act Continues to be “Employer Friendly”

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Posted in Policies and Handbooks

On December 29, 2011

The Computer Fraud and Abuse Act (“CFAA”) is a federal law that, in part, makes it a crime to access a computer in an unauthorized manner. In the employment context, the statute has proven valuable in protecting confidential and proprietary information that employees can access on their employers’ electronic systems. Recent decisions by the United States Courts of Appeals for the Ninth and Third Circuits emphasize the breadth of the CFAA’s application to the workplace.

NLRB Postpones Effective Date of Workplace Posting Requirement – Again

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Posted in Labor

On December 28, 2011

We previously reported that the National Labor Relations Board (the “Board” or “NLRB”) issued a final rule requiring most private-sector employers to post a notice of employee rights to unionize in their workplaces. In a follow-up report, we explained that the Board delayed the posting’s effective date from November 14, 2011 until January 31, 2012 in the wake of lawsuits filed by business and industry organizations (including the United States Chamber of Commerce, the National Association of Manufacturers and the National Federation of Independent Business challenging the NLRB’s authority to issue such a rule. The Board recently announced that it once again is postponing the effective date of the posting — this time until April 30, 2012 — in order to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” We continue to encourage employers to take advantage of this additional time to assess the potential impact that the required posting may have on their workplaces, and the manner in which they may want to communicate with employees regarding their positions on unions (if any). Attorneys in Gibbons Employment and Labor Law Department have extensive experience counseling both union and non-union employers regarding labor relations issues. If you have any questions regarding the impact that this rule may have on your business, please feel free to contact any of the attorneys in the Department.

Southern District of New York Implements Pilot Program to Require Early Identification & Resolution of E-Discovery Issues in Complex Cases

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Posted in E-Discovery: Legal Decisions and Court Rules / Litigation Preparedness and Strategies

On December 22, 2011

The Judicial Improvements Committee of the Southern District of New York issued a report announcing the initiation of a Pilot Project Regarding Case Management Techniques for Complex Civil Cases (the “JIC Report”) in October 2011. The pilot project, which became effective on November 1, 2011, is designed to run for 18 months and for now, applies only to specific matters designated as “complex cases.” The project, which seeks to enhance the caliber of judicial case management, arose out of recommendations from the May 2010 Duke Conference on Civil Procedure and E-Discovery. This blog posting focuses on that portion of the pilot program devoted to the discovery of electronically stored information (“ESI”).

Claims Handling Manuals Discoverable in Bad Faith Insurance Actions

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Posted in Insurance

On December 16, 2011

In Platt v. Fireman’s Fund Insurance Company, the Eastern District of Pennsylvania held that an insurer sued for insurance coverage benefits and for bad faith under Pennsylvania law was required to produce any material which pertains to instructions and procedures given to the adjuster for adjusting the plaintiff’s claims.

Chief Judge Finds That Alteration of Facebook Page Can Lead to Spoliation Inference

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Posted in E-Discovery: Legal Decisions and Court Rules

On December 16, 2011

In a trademark infringement case involving two restaurants, Katiroll Company, Inc. v. Kati Roll and Platters, Inc. et al., Plaintiff sought a spoliation inference, alleging various discovery abuses involving several types of evidence including social media. Specifically, Plaintiff requested sanctions for the individual Defendant’s failure to preserve his Facebook pages in two different ways. Recognizing that Facebook users change their pages frequently given the nature of the media at issue, Chief Judge Brown of the District of New Jersey crafted a creative remedy, which was based in large part on the level of prejudice to Plaintiff.

Update: IPXI Gains Momentum as Five More Entities Join and $10 Million is Secured from Investors

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Posted in Patent

On December 14, 2011

Gibbons published an IP Law Alert this summer describing the forthcoming Intellectual Property Exchange International (“IPXI”). Along with providing background information about how the IPXI will monetize patents, and the process for listing an IP asset on the IPXI, this post discussed the growing pains associated with starting a financial exchange pegged to IP.

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