Monthly Archives: November 2012

ILN Today Post

C. K. Kwong elected President of the Asian Patent Attorneys Association

We have the pleasure to inform you that C. K. Kwong, a Senior Partner of our firm, was elected as President of the Asian Patent Attorneys Association (“APAA”) for the term 2012-2015 in an open election which was conducted at the 61st Council Meeting of the APAA in Chiang Mai, Thailand on 31st October 2012.

Since its establishment 43 years ago in 1969, the APAA has grown into a broad based professional organization with over 2,300 intellectual property practitioners as its members from 24 jurisdictions and 18 Recognized Groups (Australia, Bangladesh, Hong Kong, India, Indonesia, Japan, Korea, Macau, Malaysia, Myanmar, New Zealand, Pakistan, Philippines, Singapore, Sri Lanka, Taiwan, Thailand and Vietnam).

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ILN Today Post

More flexibility on development, but not as much as originally proposed

New laws that require councils and planning panels to take a more flexible approach to development control plans have passed through the NSW parliament.  However, the proposals have been amended.  Some of the key reforms that we previously praised have been dropped.

The bill

The Environmental Planning and Assessment Amendment Bill 2012 passed through both houses of Parliament on Thursday last week (15 November 2012).   More…

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Watching Your Watchman: A Cautionary Tale

By William Stein

In rolling out arbitration policies, retail employers should heed the recent California Court of Appeal decision Gorlach v. The Sports Club Co. That case gives employers reason to be cautious when asking employees to sign agreements requiring them to arbitrate any disputes arising out of their employment.  In that case, the trial court found the former Director of Human Resources, who was responsible for obtaining employees’ signatures on a mutual agreement to arbitrate claims, intentionally misled the company into believing that had signed the agreement when she had not.  Nevertheless, it denied the company’s motion to compel.  The Court of Appeal affirmed, holding that, even though she misled the company, she was not bound by the arbitration agreement because she did not sign it. 

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Judith L. Grubner publishes article in The Intellectual Property Strategist on trademark licensees in bankruptcy court

Arnstein & Lehr Attorney Judith L. Grubner

Judith Grubner

Arnstein & Lehr Chicago Partner Judith L. Grubner published an article in the November issue of The Intellectual Property Strategist titled “Seventh Circuit Protects Trademark Licensees in Bankruptcy Court.” The article discusses Section 365(a) of the Bankruptcy Code, which allows a bankruptcy trustee to reject the executory portion of contracts made with the debtor, and the conflict between the Circuits caused by the recent Seventh Circuit decision in Sunbeam Products, Inc. v. Chicago American Manufacturing, LLC, rejecting the Fourth Circuit’s position that when a trustee rejects an executory trademark license, the licensee loses all rights to use the licensed trademarks. The 7th Circuit concluded that rejection of a trademark license was similar to rejection of a lease, which does not end the tenant’s right to possession of the premises.

To read the article in full, please click here.

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Webinar Recording: Employment Practices Facing NLRB Scrutiny

Steve M. SwirskyOn Friday, November 16, I participated in a free 75-minute webinar discussion with Lafe E. Solomon, Acting General Counsel of the National Labor Relations Board.  The webinar was moderated by Terence H. McGuire of the Practical Law Company.  We discussed:

  • Factors that the NLRB considers when deciding whether to prosecute unfair labor practices based on these employment practices.
  • Legal considerations surrounding these employment practices besides compliance with the National Labor Relations Act.
  • The NLRB’s stance on what is and is not a lawful at will disclaimer.
  • Social Media and communications policies.
  • The NLRB’s position on employer requirements for confidentiality in connection with workplace investigations.
  • Waivers of the right to pursue claims in class actions.
  • What’s next on the NLRB’s prosecutorial agenda and how employers can prepare.

Click here to view this complimentary webinar, “Employment Practices Facing NLRB Scrutiny.”

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Get the Door; It’s a Vicarious Liability Lawsuit

By Amy Messigian

On October 11, 2012, the California Supreme Court granted review of Patterson v. Domino’s Pizza to address the circumstances in which a defendant franchisor may be held vicariously liable for tortious conduct by a supervising employee of a franchisee.

Like many fast food chains, Domino’s Pizza (“Domino’s”) is a franchising operation in which individual franchisees operate storefronts under the Domino’s name.

In Patterson, the plaintiff, a sixteen-year-old employee of a Sui Juris, a Domino’s Pizza franchisee (“Sui Juris”), alleged that she was sexually harassed and assaulted at work by an assistant manager of the store.  She filed a lawsuit against various Domino’s-related entities, including Sui Juris and Domino’s, as well as the assistant manager, alleging causes of action under the California Fair Employment and Housing Act, along with assault, battery and intentional infliction of emotional distress.  She claimed that Domino’s was vicariously liable for the supervisor’s actions. 

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The Role Of The Heeding Presumption In Failure To Warn Litigation

In many jurisdictions, a product liability plaintiff is not permitted to testify concerning what he or she would have done had there been an adequate warning on a product; such testimony is considered both self-serving and speculative. In the absence of such testimony, some states have adopted the Heeding Presumption.

This rebuttable presumption instructs the jury that had an adequate warning accompanied the product, they are to presume that plaintiff would have “heeded” or followed the warning. This presumption establishes causation by permitting the inference that an adequate warning would have altered plaintiff’s conduct.  

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Wisconsin shootings remind employers to address domestic violence in the workplace

Workplace situations involving domestic violence are fact-intensive and the liability an employer faces will likely be complex

Arnstein & Lehr Chicago Partner Mark Spognardi and Milwaukee Associate Jesse Dill recently published the article “Wisconsin shootings remind employers to address domestic violence in the workplace” in Inside Counsel magazine. The article discusses the fatal shooting of a Milwaukee employee by her husband at the wife’s place of employment on October 21; and the necessity for employers to prepare themselves for situations involving domestic violence in the workplace.

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A Whole New World of Religious Discrimination

By Amy Messigian

On September 8, 2012, California Governor Jerry Brown signed the Workplace Religious Freedom Act into law.  The law, which becomes effective on January 1, 2013, amends the California Fair Employment and Housing Act (the “Act”) to include a religious dress practice or a religious grooming practice as a belief or observance covered under the Act’s protections against religious discrimination.

The new law also specifies that it is not reasonable to segregate an employee from the public or other employees as an accommodation of the individual’s religious dress practice or religious grooming practice.  Inasmuch, retail employers may not limit such employees to the back of the store due to their religious attire or grooming practice.

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Mark A. Spognardi and Jesse R. Dill write article for Inside Counsel on workplace situations that involve domestic violence

Arnstein & Lehr Attorney Mark A. Spognardi

Mark Spognardi

Arnstein & Lehr Attorney Jesse R. Dill

Jesse Dill

Arnstein & Lehr Chicago Partner Mark A. Spognardi and Milwaukee Associate Jesse R. Dill have co-authored an article for Inside Counsel, titled “Labor: Wisconsin shootings remind employers to address domestic violence in the workplace.” The article discusses the fatal shooting of a Milwaukee employee by her husband at the wife’s place of employment on October 21, and the necessity for employers to prepare themselves for situations involving domestic violence in the workplace. Mr. Spognardi and Mr. Dill discuss the various rights of employees who are victims of domestic violence, as well as the liability an employer may face if there is a hostile work environment. Mr. Spognardi and Mr. Dill comment that to prevent claims of discrimination for discharging an employee, the employer should implement and enforce a zero-tolerance policy that applies to acts of violence. Also employers should become knowledgeable on state and federal employment laws to navigate any employer requirements and help keep employees safe.

To read the article in full, please click here.

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