Litigation Alert >> Employees Who Don’t Affirmatively “Opt-Out” of Employer’s Arbitration Policy May Be Bound to Arbitrate Disputes - Alert - 11/25/2013
By Neal H. Klausner and Rachel A. Owens
A recent decision by the Sixth Circuit Court of Appeals concerning an employment discrimination lawsuit filed in Michigan is a significant victory for employers seeking to compel their employees to arbitrate employment disputes. In Tillman v. Macy’s, Inc., the court held that an employee was bound to an agreement to arbitrate her employment-related claims, even though she never signed the agreement, because she had failed to “opt-out” of the agreement and continued her employment.
Litigation Alert >> Clemens Strikes Out In Bid To Extend Privilege To Public Relations Team - Alert - 10/31/2013
by: Ina B. Scher and Jami E. Holland
The United States District Court for the Eastern District of New York in McNamee v. Clemens ordered former baseball great Roger Clemens to produce emails and other communications with his public relations team in the defamation case brought by Brian McNamee, Clemens’ longtime former trainer.
Robotics Business Review // Robotics Developers Beware: Truth in Advertising has a Purpose - Press Mention - 10/18/2013
Law360.com // Pre-1972 Safe Harbor Fight Has High Stakes For Web Cos. - Press Mention - 10/09/2013
Perfect Ten: Best Lawyers Honors Ten Davis & Gilbert Partners in the Areas of Advertising, Employment, Litigation, and Real Estate - Press Release - 08/15/2013
Davis & Gilbert is pleased to announce that ten of the firm’s partners have been named to the 2014 edition of The Best Lawyers in America, the oldest and most venerable peer-review publication in the legal profession.
Litigation Alert >> RMBS Put-back Decision Regarding Timeliness is at Odds with Prevailing Case Law - Alert - 06/27/2013
By Joseph Cioffi and James R. Serritella
In a controversial decision potentially opening the door to more "put-back" actions based on alleged breaches of representations and warranties involving residential mortgage-backed securities (RMBS), Justice Shirley Kornreich of the New York Supreme Court in ACE Sec. Corp. v. DB Structured Products, Inc. (DBSP) disagreed with prevailing federal case law and held that under New York law, the statute of limitations does not start to run on a put-back claim until the defendant refuses to satisfy a put-back (i.e., repurchase) demand.
Intellectual Property Litigation Alert >> Supreme Court To Decide If False Advertising Claims Are Limited To Just Direct Competitors - Alert - 06/27/2013
By Marc J. Rachman and David S. Greenberg
The United States Supreme Court recently agreed to hear an appeal concerning the requirements for who has the right to assert a federal claim for false advertising. The outcome of the case could have significant implications for false advertising claims in the future. Currently, there is a split among the federal circuit Courts of Appeal, with three circuits requiring that a party be a direct competitor to have standing to bring a false advertising claim and six circuits allowing false advertising claims to be brought by parties who are not direct competitors under certain conditions.
New York Law Journal // Florida Location May Be False, But It Was Not Defamatory, Judge Rules - Press Mention - 05/23/2013
Law360.com // YouTube Set For Copyright Rematch As Judge Defies 2nd Circ. - Press Mention - 04/19/2013
Litigation Alert >> Service of Documents via Facebook? One Judge “Likes” It - Alert - 04/10/2013
By Neal H. Klausner; Rachel A. Owens
When litigators think about service of process in a federal case, they generally recall the traditional methods of service in Rules 4 and 5 of the Federal Rules of Civil Procedure. For service on individuals, these methods include personally handing documents to an individual or leaving them at the individual’s residence with someone of suitable age and discretion.
New York Law Journal: Are Restrictive Covenants Enforceable Against Employees Terminated Without Cause? - Published Article - 04/01/2013
By Neal H. Klausner; David Fisher
In doing so, these courts relied on Post v. Merrill Lynch, Pierce, Fenner & Smith, a case in which the New York Court of Appeals held that when an employee is terminated without cause, and thereafter enters into competition with his or her former employer, it would be unreasonable as a matter of law to enforce an agreement providing that the employee forfeit previously earned pension benefits based on such competition. But the Second Circuit’s recent decision in Hyde v. KLS Prof’l Advisors Grp., suggests that the lower courts have extended the ruling in Post beyond its intended limitation to the forfeiture-of-benefits-for-competition context, and may indicate an end to the automatic rule that restrictive covenants are unenforceable when an employment relationship is terminated without cause.
Law360.com // 9th Circ. Ruling Brings Consensus on DMCA Safe Harbor - Press Mention - 03/18/2013
New York County Lawyer: Recent Cases Demonstrate the Effectiveness of First Amendment Defenses to Claims of Intellectual Property Infringement - Published Article - 03/11/2013
By: Marc J. Rachman and Dominick R. Cromartie
There have been a number of recent cases reported in the press that have raised defenses un-der the First Amendment in response to claims of intellectual property infringement or right of publicity violations. For example, in February of 2012, an app developer sought First Amend-ment protection for its parody app called "Joustin Beaver" by filing a lawsuit seeking a declara-tion that the game did not violate Justin Bieber’s right of publicity because, among other things, it was protected speech. Similarly, in December of 2012, Sony Pictures moved to dismiss on fair use grounds a copyright infringement lawsuit concerning the use of William Faulkner’s famous quote, "The past is not dead! Actually, it’s not even past," in the Woody Allen film, Midnight In Paris. And in a matter that was not litigated, but widely reported, Paramount Pictures Corp. re-fused Anheuser Busch’s request that it remove the Budweiser logo from the film Flight, in which Denzel Washington portrayed a highly functional alcoholic airplane pilot, on the grounds that such use was protected under the First Amendment. This article will discuss the origins of these defenses and how several recent court decisions have upheld their application in connection with a reference to Lindsay Lohan in a rap song, the use of biographical information about Olympic athletes in a Facebook app, the appearance of a Louis Vuitton knockoff bag in the film Hangover II, the depiction in paintings and prints of the University of Alabama’s football team, and the lampooning of a viral video in an episode of the television show South Park.
CommPRO.biz // Independent Contractors: Why and How to Hire Them - Press Mention - 03/11/2013
Litigation Alert >> Recent Class Action Settlement Underscores Employer Obligations under Wage and Hour Laws - Alert - 03/04/2013
By Michael C. Lasky; Shira Franco; Jason A. Roth
A recent multimillion dollar wage and hour class action settlement by major investment bank Merrill Lynch serves as an important reminder to employers of their obligations under federal law to properly classify, and pay overtime wages to, all eligible employees who work more than 40 hours per week.
PRWeek: Incentives for Higher Performance - Published Article - 02/11/2013
The beginning of the year is a good time for a PR firm, like any business, to think carefully about its strategic initiatives. It is an equally opportune time to consider what initiatives really mean to revenue growth and how an agency’s key team is compensated.
Intellectual Property Litigation Alert >> Olympians’ Right of Publicity Claims Over a Facebook App Trumped by First Amendment - Alert - 02/04/2013
By Marc J. Rachman and Dominick R. Cromartie
A California state court recently dismissed a lawsuit brought by former Olympians, including Mark Spitz and Greg Louganis, against Samsung for right of publicity violations over a Facebook app that used their names, images and biographical information without their consent.
Litigation Alert >> Protect Your Tweets: A Cautionary Tale Regarding Social Media Account Ownership - Alert - 01/08/2013
By Jennifer Tafet Klausner and Jason A. Roth
A recent case from the Northern District of California demonstrates the increasing importance for businesses using social media to establish clear policies notifying employees that social media accounts used in connection with their employment are company, not employee, property.