Gibbons Law Alert

Gibbons Law Alert Blog

On January 26, 2015

In Pero v. Norfolk Southern Railway, Co., No. 14-cv-16 (E.D. Tenn. Dec. 1, 2014), the United States District Court for the Eastern District of Tennessee concluded that a party cannot use a video software license to block a party from obtaining relevant evidence. Pero, an employee of Norfolk, sued after he was injured while operating a locomotive. The train was equipped with a camera and recorded the events leading to Pero’s injuries. Pero moved to compel production of the video, which could only be viewed using a proprietary software program. Norfolk moved for a protective order, arguing that providing a copy of the video would exceed the scope of its software license. Norfolk took the position that Pero had to pay $500 to purchase his own license or Pero could view the video in Norfolk’s counsel’s office.

5th Circuit Rules that Sale of Chemical is Not Disposal

by David J. Freeman

Posted in Environmental and Green Issues

On January 26, 2015

On January 14, the U.S. Court of Appeals for the 5th Circuit ruled that the sale of a useful chemical did not make the seller an “arranger for disposal” under Superfund, even where seller knew that some of that chemical would be spilled during its use. Vine Street LLC v. Borg Warner Corp., 2015 BL 8885, involved the sale of dry cleaning machines and PCE, a dry cleaning fluid, by Norge, a predecessor of Borg Warner. Norge equipped the machines with water separators, which it knew were not 100% effective. It continued to work with the dry cleaner to reduce spillage by modifying the separators’ design. Nonetheless, contamination resulted, and Vine Street, a successor landowner, sued Borg Warner for contribution to the cost of cleanup. The District Court held Borg Warner liable for 75% of the cost of cleanup based on its knowledge that some contamination resulted from these sales.

Hana Financial, Inc. v. Hana Bank: Tacking Priority of Earlier Trademarks

by Paolo A. Strino

Posted in Trademarks / USPTO

On January 22, 2015

The U.S. Supreme Court does not get to tackle trademark law issues very often. The decision in Hana Financial, Inc. v. Hana Bank, (No. 13-1211; January 21, 2015) is the first pronouncement of the highest Court on trademark matters in more than a decade, and it deals with the issue known as tacking. Trademarks often experience changes in appearance and overall look in the course of many years. These changes can take various forms, such as a modification in lettering style, a rearrangement in the order of words, the dropping of a background design, or the addition of new stylized elements. The tacking doctrine allows a party to claim the earlier priority date of an old mark for a new trademark, if the later involves slight changes over the prior version. The U.S. Supreme Court’s decision in Hana Financial addresses narrowly the question as to whether tacking is a matter of law reserved to a judge, or a matter of fact decided by a jury.

Gibbons Employment Article Featured on Cover of The Metropolitan Corporate Counsel

by Gibbons P.C.

Posted in Employee Benefits / Employment Agreements / Family Leave

On January 22, 2015

“Five New Year’s Resolutions for Employers,” written by Employment & Labor Law Department Directors Kelly Bird and Carla Dorsi, was the featured cover story in this month’s Metropolitan Corporate Counsel. The article outlines the following five employment practices for clients to focus on in 2015. Resolution #1: I will review my company’s arbitration agreements. Resolution #2: I will examine my company’s hiring practices, from job postings through background checks. Resolution #3: I will ensure my company’s paid time off policies and practices are compliant with paid sick leave laws. Resolution #4: I will rethink my company’s policies and practices concerning pregnant employees. Resolution #5: I will equip my employees with the knowledge and ability to comply with and enforce my company’s policies and our legal obligations.

Pennsylvania Supreme Court Holds the UTPCPA’s “Ascertainable Loss” Requirement Cannot Be Manufactured by Voluntarily Hiring Counsel and Incurring Litigation Costs

by Michael R. McDonald

Posted in Class Action Defense

On January 20, 2015

In Grimes v. Enterprise Leasing Co. of Phila., LLC, the Pennsylvania Supreme Court held that the retention of counsel to institute suit alone does not constitute “ascertainable loss” under the state’s consumer protection statute. The plaintiff in Grimes had rented a car from an Enterprise branch in Philadelphia and apparently declined to purchase Collision Damage Waiver or Loss Damage Waiver coverage.

Keep Your Eyes Open: Protecting Trademarks Through Active Litigation

by Gibbons P.C.

Posted in Trademarks

On January 20, 2015

Industry-specific trade shows offer manufacturers the opportunity to market their products and keep tabs on trends in their industry. However, these shows also provide an opportunity for manufacturers to identify counterfeit models of its products offered on the market. Bond Manufacturing (“Bond”), which produces outdoor heating units, arrived at the 2013 National Hardware Show in Las Vegas and discovered counterfeit versions of its products being exhibited at a nearby booth. Bond’s president was assisting with setting up the company’s booth when he noticed goods bearing Bond’s trademark at an exhibition booth operated by Bond’s previous business partner, Xiamen Hwaart Composite Material. The counterfeit goods included various products, including patio heaters, fire pits, and fireplaces. Combating counterfeiters is part of the daily routine for manufacturers like Bond, but identifying the sources of counterfeit products is typically challenging in the age of Internet commerce as counterfeiters are rarely bold enough to market their ersatz products out in the open in the light of day, particularly when the counterfeiter is your former business partner.

Businesses Look to Slam Brakes on “Quickie” Election Rule

by Gibbons P.C.

Posted in Labor

On January 15, 2015

The United States Chamber of Commerce, Coalition for a Democratic Workplace, National Association of Manufacturers, and Society for Human Resource Management have filed a lawsuit in federal court against the National Labor Relations Board seeking to enjoin a final “quickie” election rule that the Board issued last month. The rule, which seeks to expedite the union election process, will negatively impact businesses that do not have proactive labor relations programs in place by effectively stripping them of their statutory and constitutional rights to speak to their workers about labor unions before an election. Absent a postponement, injunction, or some legislative action that trumps the rule, the rule will take effect April 15.

Federal Appeals Court Directs FDA to Treat Reissue Patents as Separate and Distinct When Determining Eligibility for Pre-MMA 180-Day Exclusivity

by Wendy R. Stein

Posted in Pharmaceuticals

On January 13, 2015

In Mylan Pharm., Inc. v. FDA, generic drug manufacturer Mylan Pharmaceuticals, Inc. (“Mylan”) challenged an FDA letter decision describing the agency’s treatment of original and reissue patents as “a single bundle of patent rights” when determining eligibility for 180-day exclusivity under the Hatch Waxman Act (pre-MMA). The United States District Court for the Northern District of West Virginia deferred to the FDA’s interpretation of the statute under step 2 of Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc..

E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends

by Gibbons P.C.

Posted in Technology Developments and Issues

On January 12, 2015

On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.

New Jersey’s Permit Extension Act Extended One Year

by Howard D. Geneslaw and Andrew J. Camelotto

Posted in Development/Redevelopment

On January 7, 2015

On Friday, December 26, Governor Christie signed into law a one year extension of New Jersey’s Permit Extension Act (“PEA”). As noted in our recent blog, the PEA previously was set to expire on December 31, 2014. Initially enacted in 2008 in response to “the crisis in the real estate finance sector of the economy,” the purpose of the PEA was to toll the expiration of various approvals necessary for development through the end of 2012. The PEA was later amended to extend the tolling of the expiration of those approvals through the end of 2014. The further amendment enacted on December 26, designated as P.L.2014, c.84, tolls the expiration of those approvals through December 31, 2015, thereby providing projects with permits set to expire another year in which to move forward.