Regions

Green Marketing Still Needs Support

Environmental concerns dominated the headlines throughout 2015. For marketers, this meant an increase in the development and supply of environmentally conscious products and services and a renewed focus on “green” attributes in their marketing. Not surprisingly, consumers and regulators responded by increasing their scrutiny of “green marketing” and their willingness to take legal action based on perceived “green washing.”

As in years past, the Federal Trade Commission (FTC) remained the most active regulator of environmental benefit marketing claims, seeking to ensure that all “green marketing,” regardless of media, complied with its Guides for the Use of Environmental Marketing Claims (Guides). It sent warning letters to manufacturers and retail sellers of certain “green” products and services, reminding them that it monitored the marketplace and would challenge advertising it deemed inconsistent with the Guides.

Read More

Read full article

Daily Fantasy Sports Poses Challenges for Players and Regulators

A new industry burst into the mainstream in 2015. At the beginning of 2015, daily fantasy sports was a nascent business taking advantage of gaps in federal regulation to find deep-pocketed backers among major media companies, professional leagues, and their owners. Flush with new investment, the major competitors in this business, FanDuel and DraftKings, blanketed sports media with advertising and discovered an audience aching for an opportunity to spend money. In one weekend in October of 2015 alone, FanDuel and DraftKings collected more than $45 million in entry fees. Daily fantasy sports had become a multi-billion dollar industry.

By the end of 2015, however, the industry seemingly faced every type of legal challenge imaginable. The State of Nevada ruled that daily fantasy sports was unlicensed and, therefore illegal, gambling. In the months that followed, states including Texas, Illinois, and Hawaii made similar rulings.

 

Read More

Read full article

Children’s Privacy at the Heart of Regulatory Action

Regulators and industry members continued to focus attention on children’s privacy, particularly in response to the rush of technology involving child-directed toys and child-directed apps.

Last year, Google launched YouTube Kids, which uses algorithms to filter and select age-appropriate content from YouTube. After the launch, consumer groups complained to the Federal Trade Commission (FTC) about blurred lines between advertising and content for children and the possibility of children discovering inappropriate content using the app’s search mechanism.

Read More

Read full article

NLRB Argues “Misclassification” of Independent Contractors Is Unfair Labor Practice

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the hospitality industry: “NLRB Argues ‘Misclassification’ as an Independent Contractor Is Unfair Labor Practice.”

Following is an excerpt:

In a further incursion into the area of the gig and new age economy, the Regional Director for the National Labor Relations Board’s Los Angeles office has issued an unfair labor practice complaint alleging that it is a violation of the National Labor Relations Act (the “Act”) for an employer to misclassify an employee as an independent contractor. …

Read full article

Employers Urged to Invest In Wellbeing of Employees

Employers are losing up to 27 days of productive time per employee each year as a result of high stress and lack of physical activity, new research has revealed.

The study, which was conducted by VitalityHealth, Mercer, the University of Cambridge and RAND Europe, found that productivity varies enormously between industries, with some sectors losing almost 27 days of productive time per employee compared to a national average of 23.5 days.

Read full article

Limitations on Motions to Dismiss in FINRA Arbitration

There are advantages to financial institutions in resolving disputes with investors through arbitration under the auspices of the Financial Industry Regulatory Authority (FINRA) rather than in court. These include streamlined procedures, reduced discovery costs, faster decisions, and finality. There are, however, important procedural issues to consider when approaching FINRA arbitrations, one of which is the near-total absence of a defendant’s ability to move for dismissal of claims before trial.

FINRA’s arbitration rules state that motions to dismiss prior to trial are discouraged. Although this mindset exists at many arbitration bodies, FINRA has codified this policy and, indeed, has taken it a step further.

Read More

Read full article

Weak HR Departments May Leave Startups Vulnerable to Lawsuits

We recently had the pleasure of being interviewed by Julianne Tveten of Motherboard, for her article “HR Comes Last at Startups, and Women Pay the Price.”

The article raises some important issues for startup founders and investors.  In particular, as we discuss, a delay in establishing HR policies may inadvertently draw claims of harassment in the workplace.

Read full article

Restrictive Covenant Keys: Choice of Law, Forum Selection Provisions

Because the law concerning the enforceability of post-employment restrictive covenants varies from state to state, a company’s ability to prevent a former employee from working for a competitor or soliciting the company’s customers or employees often turns on the law governing the agreement. In some states, such as California, non-compete agreements essentially are unenforceable outside the sale-of-business context because of the state’s strong public policy against such agreements. Other states, such as New York, are more willing to enforce post-employment restrictions to the extent they are necessary to protect an employer’s legitimate interests (for example, customer relationships), do not impose undue hardship on the employee, and are not injurious to the public.

Consequently, choice of law is often critical to the enforcement of a restrictive covenant. In 2015, however, New York’s highest court, the Court of Appeals, refused to enforce a choice of law provision in a restrictive covenant agreement because the chosen law offended New York public policy.

Read More

Read full article

The dangers of not accepting a Part 36 offer

The timing and content of a Part 36 offer will often form a crucial step in settlement discussions. A Part 36 offer will, even if not accepted, protect to some extent the offeror’s position on costs.  It will also force the recipient of the offer to focus their mind on settlement.

The recent decision of Edwards-Stuart J in the Technology and Construction Court in Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd[2016] EWHC 167 (TCC) provides a good illustration of the dangers of failing to accept a Part 36 offer.  More interestingly, the judgment confirmed that it was not necessary for a valid Part 36 offer to reflect an outcome that would be possible at trial. The decision dealt with a number of other issues, but this article will focus on the effect of the decision in relation to the commercial considerations parties face when presented with a well-timed Part 36 offer.

Read More

Read full article

Managing the Very Real Risks of FLSA Class Action Lawsuits

Class action lawsuits by employees and independent contractors asserting claims under the Fair Labor Standards Act (FLSA) continue to plague employers — and show no sign of leveling off, let alone decreasing. Moreover, some strategies that employers have relied upon for protection have become increasingly ineffective, making compliance even more important.

For example, arbitration policies requiring employees to waive their class action rights had been an effective tool in curbing employee class actions. However, the National Labor Relations Board (NLRB) has recently issued rulings that mandatory arbitration policies may violate the National Labor Relations Act (NLRA) — even if they have “opt-out” provisions allowing employees to preserve their class action rights outside of arbitration and to file administrative charges. When striking down mandatory arbitration policies, the NLRB has also ordered employers to notify current and former employees that the mandatory policy had been rescinded or revised and to provide a copy of any revised policy.

Read More

Read full article