Gibbons Law Alert

Gibbons Law Alert Blog

Getting in on the Action: FTC Files Its First Pay-for-Delay Lawsuit

On April 11, 2016

In the increasingly crowded field of pay-for-delay litigation, the FTC blazed a new trail last week when – for the first time – it sued a branded drug maker for agreeing not to launch its own “authorized generic” in competition with a generic competitor. The so-called “no-AG commitment” was part of a deal struck by Endo Pharmaceuticals Inc. in exchange for a promise by Impax Laboratories to postpone by 2½ years its release of a lower-cost generic version of Endo’s lucrative Opana ER painkiller. That deal, according to the Complaint filed on March 30 in federal court in the Eastern District of Pennsylvania, let Endo prolong its alleged monopoly and, with it, the supracompetitive profits it earned from Opana. Meanwhile, the lower prices that come with the entry of a generic were delayed.

EEOC to Release Respondent Position Statement to Charging Party Upon Request

by Gibbons P.C.

Posted in Policies and Handbooks

On April 7, 2016

The Equal Employment Opportunity Commission (“EEOC”) has issued new, nationwide procedures allowing a Charging Party or his/her representative to request copies of Respondent employer’s position statement and non-confidential attachments during the investigation of his/her charge of discrimination. The new procedures apply to all position statements submitted after January 1, 2016. Employers must be cognizant of this new rule and strategically craft positions statements with an eye towards disclosure. Specifically, employers need to carefully separate confidential information into separately labeled attachments to avoid inadvertent disclosure to the Charging Party.

Alabama District Court Orders TTAB to Vacate Precedential Decision

by Paolo A. Strino

Posted in Trademarks / USPTO

On April 6, 2016

Last year’s Supreme Court’s decision in B&B Hardware raised the stakes in opposition proceedings when it stated that TTAB rulings may have preclusive effects in subsequent federal district court litigation. As litigants and practitioners are still assessing the consequences of that landmark decision, an unexpected confrontation took place between the Board and the Federal District.

Interesting Trends in Establishing Personal Jurisdiction in Hatch-Waxman/ANDA Litigations

by Charles H. Chevalier

Posted in Patent / Pharmaceuticals

On April 5, 2016

Last week the Federal Circuit handed down one of its more anticipated decisions regarding jurisdiction in cases brought under 35 U.S.C. § 271(e)(2) (aka Hatch-Waxman or ANDA litigation). In its holding, the Federal Circuit stated that a “[defendant’s] ANDA filings and its distribution channels” are enough to “establish that [the defendant’s] plans to market its proposed [ANDA product in the forum state]” are enough to meet the minimum-contacts requirement to establish jurisdiction. It further held “there is no substantial argument that considerations of unfairness override the minimum-contacts basis for [the forum state’s] exercise of specific personal jurisdiction over” the defendants. This holding is much broader than the underlying district court rulings and limited the analysis to specific jurisdiction without addressing the underlying general jurisdictional questions.

Long Lost Wright Brothers’ Patent File Found

by Christopher H. Strate

Posted in Patent

On April 4, 2016

On Sunday, The Washington Post published an interesting article explaining how the long lost Wright brothers’ patent file for the “Flying Machine” was finally found in March. The government had been searching for this file for the last 16 years. The file, which was last seen in 1980, was thought to be stored in a vault at the National Archives. But, in 2000, when an official commemoration was being planned, they realized it was missing. Ultimately, they were able to locate it in a limestone storage cave in Lenexa, Kansas. Although there was concern that the important record was stolen, the conclusion now is that it was probably just misfiled. The article indicates that the National Archives was able to identify this file as a part of a larger effort to locate missing documents.

U.S. Copyright Office Seeks Public Comment and Holds Public Roundtables Concerning DMCA Safe Harbor Provisions

by Wendy R. Stein

Posted in Copyright

On March 31, 2016

The United States Copyright Office recently published a notice in the Federal Register (“the Notice”) seeking public comment in connection with a study it is conducting to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. § 512 (“Section 512”). Comments, due on Friday April 1, 2016, could pave the way for a Congressional amendment to the DMCA and in particular, to the safe harbors relied upon by service providers to avoid liability for copyright infringement by users.

Department of Labor’s New “Persuader” Rule Requires Employers and Labor Relations Consultants to Publicly Disclose Arrangements

by Gibbons P.C.

Posted in Labor

On March 31, 2016

On March 24, the United States Department of Labor (“DOL”) published a final rule imposing new reporting requirements under the Labor-Management Reporting and Disclosure Act (“LMRDA”) that could impede employers’ communications with their workers about unions. The rule will take effect on April 25, and will cover arrangements, agreements, and payments between employers and their labor relations consultants – including their attorneys – beginning July 1, 2016.

Republicans Propose Bill Invalidating DOL’s Proposed Final Rule Regarding Overtime Exemptions

by Elizabeth Cowit

Posted in Wage and Hour

On March 30, 2016

Senate and House Republicans pushed back on the DOL’s proposed final rule on the “white-collar” overtime exemptions by proposing a new bill, the Protecting Workplace Advancement and Opportunity Act, seeking to invalidate the DOL rule. Under current regulations, employees must satisfy certain tests regarding the job duties they perform and be paid at least $23,660 per year, on a salary basis to be considered exempt under the FLSA’s “white-collar exemptions.” The DOL’s proposed final rule, however, seeks to more than double the minimum salary level from $23,660 to $50,440 per year and provides for automatic annual increases to the minimum salary threshold. Although the proposed final DOL rule does not include any specific changes to the “job duties” component of the exemptions, such changes may be included in the final rule.

Plainfield Becomes 12th New Jersey Municipality to Approve Paid Sick Leave

by Gibbons P.C.

Posted in Policies and Handbooks

On March 29, 2016

On March 14, 2016, Plainfield became the 12th New Jersey municipality to approve paid sick leave. The Plainfield ordinance, which will take effect on July 14, 2016, requires that, with certain exceptions, employees working in Plainfield for at least 80 hours per year accrue at least one hour of paid sick time for every 30 hours worked. Employers with ten or more paid employees must provide employees with up to 40 hours of paid sick time per calendar year, and employers with less than ten paid employees must provide sick time up to 24 hours, except for employees who are child care workers, home health care workers and food service workers who are entitled to up to 40 hours of paid sick time. Employees begin to accrue sick time on the first day of their employment and are entitled to begin using their accrued time on the 100th calendar day of their employment. Additionally, employees are permitted to carry over up to 40 hours of paid sick leave to the next calendar year, but employers are not required to carry over more than 40 hours.

Ban the Box Law Amendments Are Now Effective in Philadelphia

by Gibbons P.C.

Posted in Policies and Handbooks

On March 28, 2016

On March 14, 2016, the amendments to Philadelphia’s “ban the box” law went into effect. The amendments to the city’s Fair Criminal Record Screenings Standards Ordinance (the “Ordinance”), signed into law by Philadelphia’s then Mayor, Michael Nutter, on December 15, 2015, create additional restrictions under the Ordinance on how and when an employer may consider a prospective employee’s criminal background during the application process (beginning when an applicant makes an employment inquiry and ending when the employer has extended a conditional offer of employment).