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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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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.

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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.

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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.

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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.

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The American Lawyer // Cyberattack! - Press Mention - 07/01/2015

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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.



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