Monthly Archives: August 2012

ILN Today Post

Ongoing adjudication – when can an application for a court declaration be made?

This recent case highlights that applications for the court to make a declaration in a dispute which is the subject of an ongoing adjudication will only be allowed in exceptional circumstances.

In 2007 WW Gear Construction Limited (WW) appointed McGee Group Limited (McGee) to carry out works for a development in south London under a JCT Trade Contract for £1.8 million.

In 2010 McGee claimed an entitlement to loss and expense caused by events materially affecting the progress of the works. WW sought and obtained a court declaration that this claim was time barred. McGee subsequently claimed additional costs for variations to the works, which in turn was referred to adjudication. More…

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Landmark Fifth Circuit Ruling Allows Private FLSA Settlements Without DOL/Court Supervision

By: Greta Ravitsky and Jordan Schwartz

On July 24, 2012, the Fifth Circuit became the first federal appellate court in over thirty years to enforce a private settlement of a wage and hour dispute arising under the Fair Labor Standards Act (“FLSA”) in Martin v. Spring Break ’83 Productions LLC.

For decades, federal courts have consistently held that FLSA wage and hour disputes may not be settled privately without approval from either the Department of Labor (“DOL”) or a federal district court.  This apparently “settled” area of law was based exclusively on the Eleventh Circuit’s decision in Lynn’s Food Stores, Inc. v. United States. As a result, courts and employment attorneys alike have cautioned employers to undertake a private resolution of an FLSA dispute at their own peril.  Until now, the Eleventh Circuit wasthe only court of appeals that had ruled on this issue. In this recent groundbreaking decision, the Fifth Circuit declined to apply Lynn’s Food Stores’ requirement of supervision and approval of private settlements, finding that a private settlement unapproved by either the DOL or federal district court can be enforceable under certain circumstances.

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Employees working too many extra hours

Workaholism is a growing addiction among Britain’s workforce, according to new research issued by Travelodge.

So big is the problem that one in ten British workers is cramming a whole extra week of unpaid work on top of their working schedules. Meanwhile a third of Britons are working an additional 16 hours per week, in order to manage their workload and keep their boss happy.

This overtime culture means the average worker puts in 9.1 extra unpaid hours every week, which translates into £5,276.18 in unpaid time every year. Across the working population, this means British workers give away £157.2bn in unpaid time.

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Oil and Gas Alert: Business opportunities abound in the Utica Shale supply chain

Oil and gas companies aggressively are transitioning from the exploration stage to the development stage in the Utica Shale play, creating business opportunities in the natural gas supply chain.

What is the Utica Shale play?

The Utica Shale play is a natural resource area comprised of shale formations deep underground that are proving to contain significant quantities of both natural gas and valuable natural gas liquids, such as ethane, butane and pentane. The development of the Utica Shale play has been focused in Eastern Ohio and Pennsylvania. Since December 2009, 321 permits for horizontal wells have been issued and 110 horizontal wells have been drilled in Ohio. According to the Ohio Department of Natural Resources, more than 4,000 additional wells are expected by 2015. The Ohio Oil & Gas Energy Education Program projects that this drilling activity will result in more than 204,500 jobs in Ohio, all directly or indirectly related to the natural gas supply chain. Given these projections, the development of shale gas will create enormous opportunities for Ohio businesses. Businesses wishing to participate in these expanding opportunities need to focus their attention on the natural gas supply chain now or face being left behind. 

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ILN Today Post


Under New York law, the courts interpret contracts to determine the intent of the parties. If the writing used in a contract is unambiguous, the agreement is generally enforced in accordance with its plain meaning. If the writing is ambiguous, the courts may look to evidence, outside of the four corners of the contract, to determine the parties’ intent.

Issues may arise when the language in the contract is facially unambiguous, but does not reflect the intent of the parties. In those cases, rules of contract interpretation would generally not permit courts to use extrinsic evidence because that is only allowed when the contractual language is ambiguous. However, courts are naturally reluctant to enforce provisions that were not intended by the parties, and may resort to the equitable remedy of reformation (or a rewriting of the contract) to avoid an unintended or otherwise absurd result. Two recent appellate decisions in New York help answer the question, what may the courts do if interpretation of a contract provision is unsupported by extrinsic evidence as to intent and reformation has not been requested? More…

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ILN Today Post


Google’s AdWords program, which allows a marketer to use a competitor’s trademark as a trigger for its own online advertisements when consumers run a Google search, has been subject to numerous legal challenges, as we have previously reported (see April 2011 Intellectual Property Litigation Alert here).

The most recent development is a decision by the Fourth Circuit Court of Appeals, in a case
brought by Rosetta Stone, the language learning company. The appellate court reversed the lower court’s earlier dismissal of Rosetta Stone’s claims for trademark infringement and dilution. The Fourth Circuit’s decision, like other recent ones, presents no easy answer to the question of whether the use of trademarks as keywords is infringement. Rather, these types of challenges will have to be addressed on their individual merits, case by case. More…

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ILN Today Post


In a recent decision that limits the scope of retaliation claims under Title VII, the
Second Circuit found that an employee who merely participates in a company’s
internal sexual harassment investigation does not engage in “protected activity”
under Title VII.

In Townsend v. Benjamin Enterprises, Inc., the Second Circuit rejected a retaliation claim brought by an HR director, who alleged that her employment was terminated because
she participated in an investigation of a fellow employee’s sexual harassment allegations concerning a vice president of the company. The employee reporting harassment had not
filed a charge with the Equal Employment Opportunity Commission (EEOC) and therefore, the HR director had participated in only the company’s internal investigation. Based on these facts, the Second Circuit ruled that the HR director’s participation was not protected activity within the meaning of Title VII. More…

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Judging attribution

As I’ve remarked before, court judgments in art cases are always a good read for anyone interested in art.  The background in Mr Justice Newey’s 43 page judgment, in the much awaited Vekselberg case, is no exception, and it will be a useful source for students of the works of Russian artist Boris Kustodiev. 
The court held that the painting called Odalisque, bought by Victor Vekselberg’s company Avrora for £1.7m at Christies, was not attributable to Kustodiev, and so was a fake.  It did so applying the civil law burden of proof, which is “on the balance of probability”. That means at least 51% sure.  It has been reported that Avrora alone spent over £1m on lawyers and experts to get that result, and no doubt Christies’ costs were similar.  I’m not sure what alternatives there could be, but litigation is a very expensive way to determine attribution, and even then it is only based on a judge’s best guess, based on the evidence before him.
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New Type of Breach – Hackers Encrypting PHI & Holding for Ransom

Typical breach scenarios often include a stolen laptop or other device and the extraction of medical records by those thieves.  Now a new type of breach has occurred, hackers breaking into systems and holding PHI for ransom.  Bloomberg recently reported a breach in which hackers burrowed into the computer network of a surgical practice in Illinois.  Rather than stealing the data and using it for identity theft purposes, the hackers encrypted the PHI and held it for ransom.  To read the full article click here.

This type of incident would most likely be considered a “breach” under the HITECH Act, requiring breach notification to the affected individuals, unless the NIST encryption standards were already employed providing a safe harbor.  However, other HIPAA requirements are also implicated including obligations under the Security Rule to have technical and physical safeguards, which may include building secure firewalls to prevent such hackers.      Along with maintaining a secure system, it is also advisable to back-up all PHI.

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Women’s Initiatives Need to Focus on Greater Effectiveness

by Anisha Mehta

“As I recently reported, some folks are getting tired of those gender diversity initiatives, questioning whether they are time-suckers or irrelevant.” —Vivia Chen, Careerist

Women’s initiatives have become commonplace as companies have implemented programs designed to attract and retain female talent, create pathways to leadership, and increase employee satisfaction. Despite the prevalence of such initiatives, many people question their utility. Are they creating the opportunities they were intended to? Are they elevating more women into management, or merely adding time-consuming tasks to the plates of already stretched-too-thin corporate women? In other words, are women’s initiatives achieving their laudable goals?

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