Gibbons Law Alert

Gibbons Law Alert Blog

Supreme Court Recognizes “Ministerial Exception” to Anti-Discrimination Laws

On January 18, 2012

On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.

Non-Party E-Discovery Obligations in New York – A Question of Proportionality

by Paul E. Asfendis

Posted in E-Discovery: Legal Decisions and Court Rules

On January 17, 2012

In a rare New York State appellate decision concerning e-discovery, the First Department took the opportunity to address claims by a subpoenaed nonparty of inaccessibility of electronically stored information (ESI). The case, Tener v. Cremer, 2011 N.Y. Slip op. 6543 (1st Dep’t 2011), involved an alleged defamatory post originating from one of New York University’s computers. Plaintiff served NYU with a subpoena seeking identification of persons who accessed the Internet on a certain date via a certain IP address.

NLRB Rules That Class Action Waivers in Employment Agreements Violate the NLRA

by Gibbons P.C.

Posted in Employment Agreements

On January 17, 2012

On January 3, 2012, The National Labor Relations Board issued its decision in, D.R. Horton, Inc. Case No. 12-CA-25764. This is a significant decision for all employers as it prohibits the use of class action waivers in employment arbitration agreements. Specifically, the Board held that arbitration agreements that contain provisions that prohibit employees from filing joint, class or collective claims addressing their wages, hours or other working conditions against their employer, in any forum, violate Section 8(a)(1) of the National Labor Relations Act (NLRA).

Caveat Author: Understanding Copyrights, Revisited ….

by Gibbons P.C.

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.

New Jersey Trade Secrets Act Becomes Law

by Thomas J. Bean

Posted in Trade Secrets

On January 10, 2012

Yesterday, Governor Chris Christie signed into law the New Jersey Trade Secrets Act, A-921/S-2456 providing state law protection against trade secret misappropriation. Prior to enactment, New Jersey was one of only four states (including New York, Massachusetts and Texas) that had not adopted some form of the Uniform Trade Secrets Act.

New Jersey’s New Trade Secrets Act

by Richard S. Zackin

Posted in Restrictive Covenants

On January 10, 2012

New Jersey employers should be aware that yesterday Governor Chris Christie signed into law the New Jersey Trade Secrets Act (“the Act”), which for the first time codifies the law in New Jersey concerning the misappropriation of trade secrets. The new law is derived largely from, although is not identical to, the Uniform Trade Secrets Act, variations of which have been adopted in the great majority of states. New Jersey companies who are concerned about potential trade secret misappropriation by current or former employees should study the new law carefully.

Lease Extension Notices – New York Appellate Division Ignores Lease Text in Name of Equity

by Shepard A. Federgreen

Posted in Transactional Real Estate and Leasing

On January 4, 2012

New York’s Appellate Division, First Department, in 135 East 57th Street LLC v. Daffy’s Inc. was faced with the following facts. A retail chain had occupied high profile space for about 15 years. The tenant had the right to renew by notice to the Landlord to be delivered by January 31, 2010, a year prior to lease expiration. For no reason other than a mistake by the tenant’s controller, notice was not timely given. However an email and fax was sent (dated January 30, 2010) on February 4, 2010, purporting to exercise the option. The landlord on February 5, 2010, rejected the notice as being late, and accused the Tenant of back-dating the notice for its own purposes.

IP Law 2012: A Look Ahead . . . .

by Gibbons P.C.

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

by Gibbons P.C.

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

by Gibbons P.C.

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.