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Intellectual Property Litigation Alert >> When Does “Copying” a Photograph of a Building Constitute Copyright Infringement?  - Alert - 10/25/2018

Companies that use pre-existing photographs of buildings for reference in advertising or other materials may subject themselves to copyright infringement lawsuits. Even though there is generally no copyright protection for a building itself, there may be protection for a rendering of a building in the form of a photograph or illustration, and the use of that rendering for inspiration to create a new work, without obtaining authorization from the copyright owner, may lead to copyright infringement claims. Whenever a company seeks to use a pre-existing photograph or other rendering of a building or skyline as reference material, or an actual photograph, it should consult with legal counsel to help identify and avoid potential copyright, trademark and related issues.

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Employment Litigation Alert >> Employers May be Required to Accommodate Employees Who Request to Work Part Time Due to a Disability, Even if They had Previously Worked in Full-Time Roles - Alert - 09/06/2018

The fact that less than half of disabled individuals of typical working age report having jobs, despite protective laws like the ADA, means that courts are increasingly sympathetic to the requests of the disabled for accommodations. The Hostettler decision highlights a common problem for employers: namely how do they say "yes" to what other employees will characterize as "special treatment" for one employee, especially if the accom­modation is working from home and part-time, without having the remainder of their workforce becoming resentful or asking for similar treatment. Yet, the ADA, and many state statutes, make clear that the employer's priority, and legal obligation, is to make exceptions to company policies and practices for employees with disabilities, if such an accommodation is reasonable and will allow an otherwise disabled person to be able to do their job. Employers should resist "no" as a default answer to an accommodation request, even if they are otherwise tempted to dismiss a request to work part-time and remotely as out of the question.

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Intellectual Property Litigation Alert >> Street Art, Copyright Infringement, and De Minimis Use - Alert - 09/04/2018

When considering using graffiti or street art as part of a commercial production, including in advertising, social media or other marketing efforts, the same considerations addressed when clearing the use of other copyrighted or trademarked materials should be taken into account. Even though de minimis or fleeting use of graffiti or street art in another work will not give rise to an actionable claim, it is still advisable to seek the advice of counsel to determine whether a de minimis use defense is available.

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Litigation Alert >> New York Appellate Court Enforces Lease Provision Waiving Commercial Tenants’ Right to Seek Yellowstone Injunction, Strengthening Landlords’ Right to Evict - Alert - 06/28/2018

Commercial tenants entering into new leases should review draft agreements carefully for explicit waivers of the right to seek Yellowstone relief and less obvious waivers of that right that are drafted more vaguely, such as provisions that:

  • waive a tenant's right to seek "declaratory" relief,
  • waive a tenant's right to seek "injunctive" relief, or
  • state that the parties "intend that their disputes be adjudicated through summary proceedings."

Any of these or similar provisions will waive an important right New York law has afforded to commercial tenants for decades: the right to dispute a landlord’s assertion of an event of default while maintaining the option to cure that default if upheld.

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Litigation Alert >> New York Courts Reaffirm That They Will Not Consider Extrinsic Evidence When Interpreting Unambiguous Contracts - Alert - 06/25/2018

While parties to a contract may develop an understanding of their agreement based on discussions during contract negotiations, under New York law, a court should not consider evidence of that understanding if the ultimate agreement is unambiguous. As reaffirmed by the recent appellate court decisions, it is, therefore, critical that contracts accurately set forth the parties' agreement as courts are likely to limit their consideration to the "four corners" of the agreement and enforce the agreement according to its clear terms.

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Litigation Alert >> "Dialing It Back?" Federal Courts Weigh in on "Autodialers" After Appeals Court Strikes Down FCC Interpretation of TCPA - Alert - 06/20/2018

In the aftermath of the DC Circuit's ruling striking down the FCC's interpretations of what constitutes an ATDS under the TCPA, ambiguity abounds. While the Herrick ruling represents a very positive development for marketers and their agencies, the Reyes ruling demonstrates that those companies still need to exercise caution in complying with the TCPA. Until the FCC issues further guidance – and likely even after it does so – marketers and agencies must continue to consult counsel to ensure any telemarketing or texting campaigns comply with the TCPA’s requirements.

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Litigation Alert >> New Jersey Supreme Court Rejects No-Harm TCCWNA Claims, Dealing Blow to Consumer Class Actions Under the Act - Alert - 05/16/2018

The New Jersey Supreme Court's recent holding is expected to eliminate no-harm class actions under the TCCWNA. Violations of the statute, unaccompanied by any injury to the consumer, will no longer be sufficient to support a claim. The need for class action plaintiffs to prove that class members have suffered actual injury presents an individualized issue that should make many TCCWNA claims inappropriate for class-wide resolution.

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Intellectual Property Litigation Alert >> Are APIs No Longer Safe To Use When Creating Mobile And Other Software Applications? - Alert - 05/03/2018

Based on the decision of the Court of Appeals, software developers and programmers should understand that there is risk in using any copyrighted code, including API packages and code, without first obtaining authorization from the owner of the API or otherwise adhering strictly to the API terms and conditions. The safest course for software developers and programmers is to ensure that they have a license or are otherwise authorized to use the code in accordance with the rights owner’s terms and conditions, even if that code is being used in a different device or environment.

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Litigation Alert >> Recent Cases Highlight "Digital Assets" As A New Frontier in Estate Planning and Litigation - Alert - 05/01/2018

New York State's EPTL now includes a provision that clarifies how matters involving digital assets are handled in estate administration. The full scope of the Act’s implications has yet to play out, but digital assets will undoubtedly affect estate planning and litigation matters for years to come. While the need to plan for digital assets is clearly important, fiduciaries of estates should also be mindful of those assets in potential estate administration and litigation issues that may arise.

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Commercial Litigation Alert >> Enhancing the Likelihood of Enforcement of a Forum Selection Clause in an Online Contract - Alert - 03/26/2018

Companies that include a forum selection clause in an online contract should make sure that they reasonably communicate the forum selection clause to their customers and vendors. Best practices include: (i) providing on an uncluttered screen a direct hyperlink to the terms and conditions that contain the forum selection clause on an uncluttered screen, where the hyperlink is visible without having to scroll down; (ii) formatting the hyperlink in a clear manner, such as by having the phrase "Terms and Conditions" in blue, underlined text against a bright white background; (iii) setting off the forum selection clause within the terms and conditions, such as with a heading in bold text; and (iv) requiring customers to affirm that they agree to the terms and conditions before they can continue using the website.

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Litigation Alert >> No Harm, No Foul? Individualized Consent Issues Sink TCPA Class Action  - Alert - 01/16/2018

The Northern District of Illinois' practical approach to analyzing whether lack of consent gives rise to actionable harm under the TCPA, and whether this issue can truly be determined on a class-wide basis, may represent a significant victory for businesses that rely heavily on telephone and text interactions with their customers. Companies should nonetheless be sure they are following best practices in both their dialing procedures and their agreements with call centers and other dialing vendors.

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Litigation Alert >> Battling the Real "Fake News": FTC Reaches Multi-Million Dollar Settlement with Internet Marketers for False Celebrity Endorsements - Alert - 11/30/2017

The FTC's settlement with the Defendants allegedly engaged in these deceptive marketing practices serves as a reminder that the parties responsible for online advertising using public figures’ names and images without authorization can be identified and stopped, and that those parties may include the operators of large marketing networks. In other words, the FTC did not just find the parties responsible for the unlawful advertising practices; it also found parties within the United States with assets significant enough to disgorge millions of dollars in deceptively-acquired profits.

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Commercial Litigation Alert >> Appeals Court Enforces Arbitration Clause in Hyperlinked Terms & Conditions - Alert - 11/02/2017

The Second Circuit’s Meyer decision reaffirms the importance of well-crafted terms and conditions for companies interacting with consumers over the Internet and via mobile apps, and that for those terms to be enforceable, access to them must be presented in a manner clear and conspicuous enough for a reasonably prudent user to understand that he or she can access and review the terms and is also agreeing to be bound by them. Best practices include: linking to the terms on the same screen on which consumers enter payment or registration information; placing the link in close proximity to the "continue" or "register" button, visible without the need to scroll down; including an explicit statement that the user is agreeing to the terms by registering or paying; and formatting the link and associated statement in a prominent, high-contrast font, distant from any other text on the screen.

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Litigation Alert >> ADA Requires Online Businesses To Make Their Websites Usable By The Disabled - Alert - 09/27/2017

Businesses with an online presence, and those agencies designing and building websites for businesses who sell goods and/or services online, should review their websites for ADA compliance. Companies should further explore technology available to make their websites accessible to potential customers with disabilities, or risk being party to a class action brought by a class of disabled plaintiffs who can allege that they are deprived of a full and fair opportunity to buy the goods and/or services online.

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Advertising, Marketing & Promotions Alert >> First Circuit Requires Identifiable Injury for Claims Asserting Deceptive Retailer "Compare At" Prices - Alert - 09/18/2017

Recent decisions from the First Circuit reign in consumers' ability to bring actions alleging false advertising in retailers' "Compare At" pricing, unless a consumer can demonstrate actual, identifiable harm separate from the mere purchase of a good in order to claim damages. However, even with the recent First Circuit opinions, many courts have left open the possibility of alleging injury based on theories of overpayment or price premiums, and therefore it is still critical for retailers to review their pricing policies and disclosures both online and in their stores to avoid future actions alleging that their pricing practices are deceptive.

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Litigation Alert >> Possibility Defeats Practicality: Federal Court of Appeals Limits Class Action Defense Regarding Infeasibility of Ascertaining Class Members - Alert - 08/30/2017

Given the split among several courts of appeal, Petrobras will not be the last word on ascertainability in class action suits. Indeed, this fall, the U.S. Supreme Court will consider a petition for certiorari regarding the certification of a plaintiff class allegedly lacking administrative feasibility. In the interim, however, plaintiffs within the Second Circuit may face one less hurdle in obtaining class certification.

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Litigation Alert >> Aiding and Abetting Discrimination — Not Just For Employers and Supervisors Anymore - Alert - 06/19/2017

The Griffin opinion paves the way for plaintiffs to assert an "aiding and abetting" theory to sue their employer's corporate customers, clients and vendors for participating in conduct or decision-making alleged to be unlawful under the NYSHRL, even if such participation is limited to having a contract, policy or protocol that runs afoul of New York law. At a minimum, companies operating in New York should confirm that any contracts, policies or protocols that apply to individuals in New York do not violate New York law.

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Litigation Alert >> When Is a “Firm Offer” Really Firm When Negotiating Talent Agreements? When the Term Sheet Says So - Alert - 06/01/2017

Using words like “firm” and “binding” in emails or other documentation when sending over a term sheet to the other side does not necessarily create a firm offer, especially if there is contradictory language in the body of the actual term sheet. Contracting parties who wish to rely on a term sheet as a firm offer should make sure that it contains language establishing its binding nature or else risk a court’s determination that a valid contract was never entered. Further, even if a firm offer is made, the recipient of that offer must be sure to accept it. A party who purports to accept only a portion of the offer, asks for more information, or imposes conditions on the deal risks being viewed as having rejected the offer or made a counteroffer.

 

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Intellectual Property Litigation Alert >> The Days of Patent Plaintiff Forum Shopping May be Over - Alert - 05/23/2017

The Supreme Court’s decision in TC Heartland establishes that just having sold goods in the judicial district is now insufficient on its own to establish jurisdiction. Patent holders bringing suit must do so in either the judicial district where the defendant resides, or the judicial district where the defendant has a regular and established place of business. The decision will likely discourage patent trolls from filing suit in the Eastern District of Texas and other jurisdictions with little to no connection to the defendant.

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Intellectual Property Litigation Alert >> Breach Of Contract Claims Allowed For Alleged Open Source License Violations - Alert - 05/18/2017

A recent California decision allowed breach of contract claims for GPL violations in connection with the use of open source software. As the decision shows, reliance on arguments that the GPL is not a contract or that corresponding contract claims are preempted by copyright law may prove misplaced. Accordingly, businesses should carefully consider contract law implications when licensing and using GPL-governed code.

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Litigation Alert >> Courts Begin to Rein in Scope of New Jersey Truth in Consumer Contract, Warranty and Notice Act - Alert - 05/10/2017

As the barrage of TCCWNA-related class actions continues, courts are beginning to rein in the scope and applicability of New Jersey’s consumer protection statute. Claims by consumers who allege technical violations without any separate, identifiable harm may finally begin to diminish. Nonetheless, the TCCWNA remains a significant weapon for class action counsel, and companies should have their terms and conditions reviewed for compliance with the Act.

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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.

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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.

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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.

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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.

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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.



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