Litigation Alert >> Enforcing Restrictive Covenants Against Employees Discharged Without Cause - Alert - 04/17/2017
A bright-line rule that an employer may not enforce restrictive covenants against an employee terminated without cause appears to be re-emerging in New York. But there are potential strategies for employers to secure enforceable post-employment restrictions against an involuntarily discharged employee, such as defining “cause” broadly in an employment agreement or agreeing to provide the employee benefits following termination to which the employee would not otherwise be entitled in exchange for the employee’s agreement to adhere to reasonable restrictions.
Davis & Gilbert LLP Elects Five New Partners and One Counsel - Press Release - 01/04/2017
Intellectual Property Litigation Alert >> U.S. Supreme Court Sets the Bar Higher for Obtaining Damages for Design Patent Infringement - Alert - 12/19/2016
The Supreme Court’s decision sets the bar higher for design patent holders to recover for infringement and opens the door to apportionment of damages. Parties looking to file for design patents will likely consider claiming their patents more broadly, in order to avoid the specter of reduced damages in the event the design patent is infringed. They may also consider alternative forms of protection, such as trade dress and copyright if appropriate. In addition, how damages should be apportioned will now be an important part of both side’s litigation strategy.
As the Court refused to delineate a test for determining the infringing article of manufacture, address whether there must be a causal link between the total profit made and the infringing article of manufacture, or explain how to apportion "total profits" by component, further Federal Circuit decisions on these issues are likely to follow.
PRWeek // Temporary Injunction Throws Wrench in Agencies' Overtime Plans - Press Mention - 11/23/2016
PR Council // New Overtime Rules Temporarily Blocked by Nationwide Preliminary Injunction - Press Mention - 11/23/2016
Law360.com // Natixis Asks Appeals Court to Toss Suit Over $877M In RMBS - Press Mention - 10/14/2016
Commercial Litigation Alert >> 'I Agreed to What?' – Federal Court Decision May Increase Scrutiny of Online Terms and Conditions - Alert - 09/13/2016
Well-crafted terms and conditions are critical for companies doing business over the Internet. Even the best terms and conditions are of little use, however, if consumers can avoid reading and agreeing to them. Online terms and conditions, and electronic arbitration agreements in particular, may be subject to increased scrutiny after the Meyer decision. Companies should make sure that their websites provide clear, conspicuous, up-front notice to consumers that they are agreeing to legal terms that impact their rights, and – ideally – include some way for consumers to actively manifest their agreement to those terms before they can continue browsing the sites.
Trademarks & Brands Online // UDRP Roundup: Wins for Brand Owners Against Bogus Domain Names - Press Mention - 08/10/2016
Law360.com // FIFA World Cup Ticket Suit Gets The Boot - Press Mention - 07/28/2016
Litigation Alert >> Internet Retailers Beware: NJ Truth-in-Consumer Contract, Warranty and Notice Act Impacts Online Terms and Conditions - Alert - 07/21/2016
New Jersey’s TCCWNA allows consumers to recover damages or civil penalties from retailers who use terms and conditions that violate the consumers’ clearly established legal rights. With the New Jersey courts’ generally broad, consumer-friendly construction of this act, and a statutory penalty of $100 per violation regardless of whether the consumer has suffered any actual harm, the act increasingly has become a favorite among plaintiffs’ class action counsel. Online retailers should actively review their terms and conditions, both to ensure compliance with New Jersey law and to be certain that those terms are constructed so as to afford the maximum protection available against these class action claims.
Commercial Litigation Alert >> New York High Court Rejects ‘Common Interest’ Protection of M&A Parties’ Communications - Alert - 07/18/2016
In New York, attorney-client communications are not protected as confidential if shared by the client with someone other than its lawyer, or by the lawyer with someone other than the client – except in the limited circumstance where the communication is shared to advance independent parties’ shared interest in connection with threatened or pending litigation. Parties to merger agreements under New York state law should proceed more carefully and not assume that communications with their respective attorneys, once shared with the other side during the negotiation of the transaction, will be protected should the merger be challenged later, or should litigants wholly unrelated to the merger seek to obtain that information for use in unrelated future litigation.
Commercial Litigation: Procedural Issues >> Best Practices for Legal Hold Notices - Alert - 04/05/2016
Consumer Class Actions >> Our Best Offer: Rule 68 and TCPA Class Actions - Alert - 04/05/2016
Employment >> Managing the Very Real Risks of FLSA Class Action Lawsuits - Alert - 04/05/2016
Financial Services >> Limitations on Motions to Dismiss in FINRA Arbitration - Alert - 04/05/2016
Intellectual Property >> Expanding Reach of the Copyright Fair Use Defense - Alert - 04/05/2016
Intellectual Property >> Strategies and Tactics to Battle Online Cyber-Defamation - Alert - 04/05/2016
Intellectual Property >> Can the First Amendment Trump the Right of Publicity? - Alert - 04/05/2016
Real Estate >> How Best to Ensure Enforceability of Rent Acceleration Clauses - Alert - 04/05/2016
Courthouse News Service // Bar Exam Prep Course Case Headed to Trial - Press Mention - 03/29/2016
Law360.com // FIFA Wants A Timeout In Suit Over World Cup Ticket Prices - Press Mention - 03/02/2016
Artnet.com // Hasted and Kraeutler Sue Each Other over Claims of Lavish Expenses and Missing Artwork - Press Mention - 11/04/2015
Litigation Alert >> AAA Now Requires Pre-Approval and Registration of Arbitration Clauses in Consumer Agreements, including Website Terms & Conditions - Alert - 09/14/2015
To ensure that consumer disputes will be arbitrated before the AAA, companies that have AAA arbitration clauses in their consumer agreements, including in website Terms & Conditions, should submit their clauses to the AAA as soon as possible for approval and registration. Otherwise companies risk paying additional fees, and having the AAA decline to administer a dispute.
Labor & Employment Alert >> New York City Human Rights Law Restricts Credit Checks of Job Applicants and Employees - Alert - 09/01/2015
Employers that require job applicants in New York City to undergo background checks should assess if their background checks include credit history or could result in the retrieval of background information related to credit history. In addition, companies that regularly conduct credit checks are advised to consult with counsel and to review if any credit check policy or practice may need to be modified or discontinued for certain positions.
World Intellectual Property Review // Five Things We Learned This Week: PTAB Changes, 'Dismaland' and More - Press Mention - 08/28/2015
Davis & Gilbert Secures 10 Lawyer Recognitions in 2016 Best Lawyers Rankings - Press Release - 08/19/2015
Labor & Employment Alert >> Department of Labor Issues Guidance on Misclassification of Employees as Independent Contractors - Alert - 07/23/2015
While the DOL’s guidance is not a formal rule and is not binding, it represents the latest effort to deal with what DOL Wage and Hour Division Administrator David Weil has called the “growing problem” of misclassification. Employers should keep this guidance in mind and consult counsel when making decisions about the classification of certain workers. Decisions about classification will be impacted by several relevant factors, including the company’s business, the type of work being performed, and the extent to which the worker provides services to other companies.
Litigation Alert >> Restrictive Covenants for New York Employees Must Be Tailored to Comply with New York Law - Alert - 07/06/2015
The Court of Appeals decision in Brown & Brown v. Johnson is an important reminder to New York employers that they must act with care to receive the benefits of an enforceable restrictive covenant. In particular, the decision emphasized the need for employers to tailor restrictive covenant agreements with New York-based employees to New York law and to present the agreements to employees in a non-coercive fashion.
Corporate Counsel // When Bloggers Attack and Companies Fight Back - Press Mention - 06/17/2015
Law360.com // Abbott and Costello Heirs Sue Play Over 'Who's on First'" - Press Mention - 06/05/2015
New York Post // Abbott & Costello Heirs Sue Play Over 'Who's on First?' Routing - Press Mention - 06/05/2015
Deadline Hollywood // Abbott & Costello Heirs Sue Tony Nominee 'Hand to God' Over 'Who's On First? - Press Release - 06/05/2015
The New York Times // 'Hand to God' Play Sued by Abbott and Costello Heirs Over Use of 'Who's on First?' - Press Mention - 06/04/2015
Litigation Alert >> Commercial Lease Rent Acceleration Clauses: For How Long Will They Be Enforceable? - Alert - 05/11/2015
The Court of Appeals’ holding in Van Duzer raises questions as to the future enforceability of rent acceleration clauses in commercial leases that do not account for net present value and that give the landlord both the right of possession during the lease term and the right to immediately recover all rents due under the lease. Because a landlord has no duty to mitigate its damages, most acceleration clauses (even those that discount for net present value) allow a landlord the potential to recover more than what it might receive, but for the breach. Thus, the decision in Van Duzer may signify the beginning of a trend toward unenforceability of these acceleration clauses.
Trademarks & Brands Online: The Power Of A Poor Review - Published Article - 04/13/2015
Marc J. Rachman; Brandie J. Lustbader