Gibbons Law Alert

Gibbons Law Alert Blog

Trademark Parody? Ben & Jerry’s Doesn’t Think It’s So Funny ….

On September 20, 2012

Ben & Jerry’s Homemade, Inc. (“Ben & Jerry’s”), the Vermont-based ice cream maker, recently filed a lawsuit in SDNY against adult video company Rodax Distributors, Inc. d/b/a Caballero Video, et al (“Defendants”). The complaint alleged trademark and trade dress dilution and infringement, and related claims arising from Defendants’ production and distribution of a series of hardcore pornographic DVDs whose titles and packaging play upon the names and trade dress of some of Ben & Jerry’s federally registered and famous marks.

Leveling the E-Discovery Playing Field: Court Shifts Costs to Putative Class Action Plaintiffs Prior to Class Certification

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 19, 2012

In a case of first impression, a federal judge in Pennsylvania shifted the costs of e-discovery to the plaintiffs in a putative class action before deciding the issue of class certification. Addressing concerns of fairness to defendants in class actions, particularly given that the parties’ respective discovery burdens are “asymmetrical,” the Court held that the plaintiffs should bear the costs arising from their extensive discovery requests. The Court also considered the role of plaintiffs’ counsel as a participant in the process, noting that the plaintiffs are represented by a “very successful and well regarded” class action law firm and reasoning that if the plaintiffs “have confidence in their contention that the Court should certify the class, then plaintiffs and their lawyers should have no objection to making an investment.” Boeynaems v. LA Fitness Int’l, LLC.

Department Co-Chair, Russell Bershad, to Speak at the 11th Annual RealShare New Jersey Conference

by Gibbons P.C.

Posted in Transactional Real Estate and Leasing

On September 18, 2012

Russell Bershad, Co-Chair of the Gibbons Real Property & Environmental Department, will be a featured panelist at the 11th Annual RealShare New Jersey Conference taking place on Wednesday, September 19, in New Brunswick, NJ. This year’s RealShare New Jersey Conference brings together industry leaders who will provide insight into the latest trends within the commercial real estate market.

Between A Rock and Hard Place: Twitter’s Back Now Against The Wall In Harris Case

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 17, 2012

That didn’t take long. A panel of the Appellate Division, First Department in People of the State of New York v. Harris, Index No. 080152/2011 has denied Twitter’s motion for a stay of enforcement of the Trial Court’s order requiring the production of Mr. Harris’s tweets. On Tuesday September 11, the Trial Court warned Twitter during a hearing on the District Attorney’s motion to hold Twitter in contempt that Twitter must produce the information in question by Friday September 14 or face a finding of contempt. Manhattan Criminal Court Judge Sciarrino further warned that he would review Twitter’s most recent quarterly financial statements in determining the appropriate financial penalty if Twitter does not obey the order. Denial of the stay and the Trial Court’s expected insistence on compliance puts Twitter in a difficult position as production of the tweets will effectively moot their appeal of Judge Sciarrino’s order. Twitter’s next move should be interesting. We will continue to keep you apprised.

EEOC v. United Airlines, Part II — Denying a Disabled Employee’s Request to Fill a Vacant Position as an Accommodation Because More Qualified Candidates are Available Remains Problematic Under the ADA

by Richard S. Zackin

Posted in Disability

On September 12, 2012

Four months ago we reported on the decision of the United States Court of Appeals for the Seventh Circuit upholding United Airlines’ position in a lawsuit brought by the Equal Employment Opportunity Commission (EEOC) that United did not violate the Americans with Disabilities Act (ADA) by its policy of filling vacant positions with the most qualified candidate even though another employee, unable to perform his own job because of a disability, had applied for the vacant position as a reasonable accommodation. The three-judge panel of the Seventh Circuit that issued that decision has now vacated its opinion and has decided the case in favor of the EEOC. The panel’s reversal of its position is not that surprising. The panel originally ruled in favor of United because it felt bound by a Seventh Circuit ruling in a similar case decided in 2000, EEOC v. Humiston-Keeling. The panel, however, questioned that earlier decision in light of the Supreme Court’s 2002 decision in US Airways, Inc. v. Barnett and thus recommended that the issue be considered by the court en banc (i.e. by the entire membership of the Seventh Circuit). The EEOC promptly moved for reconsideration en banc. Each member of the court expressed the view that EEOC v. Humiston-Keeling should be overruled and, in lieu of formally rehearing the case en banc, simply directed the original panel to vacate its decision and issue a new opinion.

Crucial Issues in Investigations

by Gibbons P.C.

Posted in Discrimination

On September 12, 2012

Does your company conduct internal investigations? If so, you should be asking yourself these four crucial questions: Is the right person conducting the investigation? Is the investigation thorough? Is it taking too long? Is the company following through? Click here to read more about these important internal investigation concerns in an article recently written by Kelly Ann Bird and published by The Metropolitan Corporate Counsel.

Twitter Appeals Order to Produce Tweets

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On September 11, 2012

We previously reported on the New York District Attorney’s attempts to obtain tweets by a criminal defendant in People of the State of New York v. Harris, Index No. 080152/2011 and the corresponding challenges asserted by the individual user/defendant and Twitter itself on May 23 and June 7. Defendant is accused of disorderly conduct for allegedly having blocked traffic during an Occupy Wall Street protest. The District Attorney has sought defendant’s simultaneous tweets that allegedly will undermine his defense that he was forced onto the street by police officers. The trial court first denied defendant’s motion to quash the subpoena served on the social networking site Twitter and then denied Twitter’s own motion to quash.

The Gibbons Institute of Law, Science & Technology presents “Views from the Bench”

by Gibbons P.C.

Posted in Intellectual Property

On September 11, 2012

Please join us Tuesday, October 16, as the Gibbons Institute of Law, Science & Technology welcomes the Honorable Kathleen M. O’Malley, Circuit Judge, U.S. Court of Appeals for the Federal Circuit, to present Views from the Bench at the Newark Club. The lecture will begin at 6:00 pm followed by a Networking Reception at 7:30 pm. CLE credits for NJ and NY are offered.

Good for the Gander: New NY Pilot Program Shows E-Discovery Is Also On State Courts’ Radar

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On September 10, 2012

New York state court practitioners need to be increasingly mindful about their e-discovery obligations. Although Congress and the federal courts have largely blazed the e-discovery trail to date, e-discovery issues are slowly but surely being addressed at the state level as well. Recently, New York’s Electronic Discovery Working Group selected Part 48 of the Commercial Division of the State Supreme Court in New York County (currently run by Justice Jeffrey K. Oing) to participate in a pilot program to utilize a new Electronic Discovery Order (“EDO”) form.

Akamai and McKesson: Inducement Liability for Infringement by Multiple Actors

by Thomas J. Bean

Posted in Patent

On September 10, 2012

In August, we reported that a decision in the en banc Federal Circuit rehearings of Akamai Technologies, Inc. v. Limelight Networks, Inc., 629 F.3d 1311 (Fed. Cir. 2010) and McKesson Techs. Inc. v. Epic Sys. Corp. , 98 U.S.P.Q.2d 1281 (Fed. Cir. 2011) appeared to be imminent. As predicted, on August 31, 2012, the Federal Circuit issued an en banc, per curiam opinion deciding both cases.