Gibbons Law Alert

Gibbons Law Alert

Author: Gibbons P.C.

Wage and Hour Guidance: IRS and Department of Labor Focus on Worker Misclassification

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Posted in Wage and Hour

On September 27, 2011

Employers should be aware of two recent announcements from the U.S. Department of Labor (“DOL”) and the Internal Revenue Service (“IRS”) regarding the misclassification of workers as independent contractors or non-employees. First, the DOL on September 19, 2011 signed a memorandum of understanding with the IRS that is designed to improve the DOL’s efforts to curtail employee misclassification by employers by sharing information with both the IRS and participating states. Second, the IRS announced on September 21, 2011 the launch of a new program, the Voluntary Classification Settlement Program (“VCSP”), that will enable employers to resolve prior misclassification of employees as independent contractors. The VCSP significantly limits past taxes for misclassified workers if an employer comes forward voluntarily in an attempt to comply with the tax laws.

If the Creek Don’t Rise — Montana’s Right to Rental for Riverbeds Used by Power Company’s Dams Now Before the U.S. Supreme Court – PPL Montana, LLC v. State of Montana

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Posted in Environmental and Green Issues / Transactional Real Estate and Leasing

On September 23, 2011

The U.S. Supreme Court will take up another Montana river case. The case involves a dispute between the State of Montana and a power company that purchased dams on several Montana rivers, which are licensed under the Federal Power Act by the Federal Energy Regulatory Commission. The last time Montana visited the U.S. Supreme Court, it lost to Wyoming in a dispute over water usage under the Yellowstone River Compact. This time Montana stands to gain $41,000,000 as fair market rental for its river beds granted on summary judgment and upheld by the Montana Supreme Court.

Twombly, Iqbal and Heightened Pleading Standards in Patent Infringement

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Posted in Patent

On September 22, 2011

Two cases decided last month highlight the somewhat disparate pleading standards in patent infringement actions among districts after Twombly and Iqbal. In The Nielsen Co. v. comScore, Inc., a plaintiff in the Eastern District of Virginia overcame a motion to dismiss infringement claims. Case No. 11-cv-168 (E.D.Va. Aug. 19, 2011) (Davis, J.). The court held that the claims for direct infringement met the lenient pleading standard of Form 18 provided under the Federal Rules. While in Medsquire LLC v. Spring Med. Sys. Inc., the district court for the Central District of California granted the defendant’s motion to dismiss. 2-11-cv-04504 (C.D. Cal. August 31, 2011) (Nguyen, J.). The court held the plaintiff’s Form 18 pleading resulted in conclusory statements that failed to include any facts identifying the relevant aspect of the [accused product] that infringed the patents and the complaint was insufficient to meet the “plausibility” standard set forth in Twombly and Iqbal.

FINRA Issues Regulatory Notice 11-39: Social Media Websites and the Use of Personal Devices for Business Communications

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Posted in Corporate Information and Records Management Policies

On September 21, 2011

In August 2011, FINRA, the self-regulatory agency of the securities industry, issued Regulatory Notice 11-39, offering additional guidance concerning the use of social media and supplementing its first notice on the subject–Regulatory Notice 10-06, issued in January 2010. Notice 11-39 focuses on issues relating to FINRA members’ use of social media, including record-keeping, supervision and responding to third-party posts and links. The Notice includes 14 “Q&As,” which provide instruction on the practical application of a firm’s and “associated person’s” (i.e., FINRA members) obligations under applicable laws and regulations when it comes to social media. With respect to record-keeping requirements, social media websites raise new complications because member firms do not themselves typically sponsor or host the content on those websites. The Notice, however, clarifies that record retention requirements continue to apply to content on social media sites and that the controlling question is whether the communications on those sites relate to the firm’s “business as such.” Any business communication made via Facebook, for example, must be “retained, retrievable and supervised.”

New Jersey Adopts Federal White-Collar Overtime Exemptions

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Posted in Wage and Hour

On September 20, 2011

The New Jersey Department of Labor and Workforce Development (“NJDOL”) has adopted the so-called “white collar” exemptions for Administrative, Executive, Professional, Outside Sales, and Computer employees as contained within the Federal Fair Labor Standards Act (“FLSA”). The adoption of these changes – which are considered by many to be long overdue – was announced in the New Jersey Register on September 6, 2011. The new regulations became effective immediately upon publication. As explained below, these changes will benefit employers and provide clarity and consistency to the wage and hour landscape in New Jersey.

The Gibbons Institute of Law, Science & Technology presents “The 2011 Federal Circuit Year in Review”

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Posted in Patent

On September 19, 2011

On October 3, The Gibbons Institute of Law, Science & Technology will host its annual “Federal Circuit Year in Review” event at Seton Hall Law School. Ralph A. Dengler, Counsel to the Gibbons Intellectual Property Department, along with a panel of practitioners and jurists, including Chief Judge Brown and District Judge Simandle of the District of New Jersey, will review and discuss the Federal Circuit’s key decisions from 2011, and their practical and future implications for the bar. These discussions will include cases involving damages; inequitable conduct; jurisdiction and venue; licensing; patentability of business methods; and preservation of ESI in anticipation of litigation, among other topics.

Clock Ticking for Trademark Registrants Seeking to Block Registration of Their Marks on .XXX Domain

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Posted in Trademarks

On September 15, 2011

As has been widely reported by the mainstream press and most legal publications, the Internet Corporation for Assigned Names and Numbers (ICANN) has approved a new “.XXX” top-level domain expected to be utilized by the adult entertainment industry. Given the connotation of the .XXX domain, companies and individuals around the globe are considering how best to protect their trademarks from the potential harms of registry misuse, including cyber squatters targeting this new domain to register well known trademarks. Although the creation of the .XXX domain will be a boon to those in the adult entertainment industry and domain registrars, it raises serious threats of infringement, brand dilution or tarnishing for trademarks uninvolved in those industries. If they have not already, all trademark owners should be considering the potential impact of the .XXX domain to their marks and determining whether to take the necessary steps to “opt-out” of .XXX domain registration by the October 28, 2011 deadline for doing so.

Patent Reform Act of 2011 on the Horizon

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Posted in Biotech / Patent / Pharmaceuticals / USPTO

On September 7, 2011

On Tuesday, September 6, 2011, the Senate invoked cloture on H.R. 1249, also known as the America Invents Act, making it almost a done deal for passage of this Act. One reason that this bill has succeeded over its predecessors is that, with one major exception, there is little difference between the House and Senate versions. The passage of H.R. 1249 will mark the culmination of a 6-year process to pass patent reform legislation that started with H.R. 2795

DuPont v. Kolon: A Lesson In How To Avoid Sanctions For Spoliation Of Evidence

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Posted in E-Discovery: Legal Decisions and Court Rules

On September 6, 2011

Two recent decisions in the same case illustrate that, when it comes to imposing sanctions for spoliation of evidence, what matters is not simply whether you’ve intentionally deleted relevant evidence, but how you go about deleting it, and what the record reflects about your intentions. Although both the plaintiff and the defendant in E.I. du Pont De Nemours and Co. v. Kolon Industries, Inc., Civil Action No. 3:09cv58, demonstrated that the other intentionally destroyed relevant evidence, as is detailed below, the Court sanctioned only defendant Kolon Industries, Inc. (“Kolon”) based on its manifest bad faith (read the decision here). As is discussed in an earlier post on Gibbons’ E-Discovery Law Alert (which you can read here), plaintiff E.I. du Pont de Nemours and Company (“DuPont”) escaped a similar fate based on its demonstrable good faith. In short, this case teaches that the intentional deletion of relevant evidence does not per se lead to sanctions. Rather, the parties’ conduct — or misconduct, as the case may be — must be judged contextually.

Placement on PIP Without Change to Job Status Not Adverse Employment Action

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Posted in Discrimination

On August 30, 2011

Joining several of its sister courts, the Third Circuit has held that, unless accompanied by a change in pay, benefits, or employment status, placement on a performance improvement plan (“PIP”) does not amount to an adverse employment action for purposes of the Age Discrimination in Employment Act (“ADEA”). Noting concerns over “naked claims of discrimination and greater frustration for employers seeking to improve employees’ performance,” the Reynolds v. Department of Army Court reinforces the notion that employers can utilize PIPs as a means to improve employee performance and conduct with decreased apprehension that the employee will initiate legal action based on the presence of the PIP alone.

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