Monthly Archives: May 2016

Will Sad Facts Make Bad Law?

Despite popular opinion, lawyers and judges are human and sometimes the facts of a case make it near impossible for judges to play the role of the modest umpire calling balls and strikes described by Chief Justice Roberts in his confirmation hearing.  Sometimes, bad facts make bad law because the plaintiff is so sympathetic that the just ruling may not be the “right” one.  Fachon v. U.S. Food and Drug Administration et al., appears to be the epitome of this.

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Defend Trade Secrets Act of 2016 Signed Into Law – Employment Law This Week

David Clark, contributor to this blog and Senior Counsel at Epstein Becker Green, is featured on Employment Law This Week, discussing the Defend Trade Secrets Act of 2016 (DTSA).

Under the DTSA, employers can now sue in federal court for trade secret misappropriation. Though there is some overlap with the Uniform Trade Secrets Act—adopted in some version by 48 states—the DTSA marks a notable change in how these cases are litigated, creating a federal civil cause of action. The new law contains broad whistleblower protections and new requirements for employers to give notice of these protections.

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ILN Today Post

Supershuttle Loses Rebuttal – Canadian Registration Scuttled

In a recent Federal Court of Canada (the “FC”) decision, 2015 FC 1259, the FC dismissed an appeal by Supershuttle International, Inc. (“Supershuttle”) to overturn a decision of the Registrar of Trade-marks (the “Registrar”), expunging its Canadian trade-mark registration for SUPERSHUTTLE (the “Mark”) for non-use.

Supershuttle provides ground transportation services to and from airports in cities that are all located outside of Canada.  Canadians wanting to utilize Supershuttle’s services can and do book tickets and make reservations through their website, which is accessible to persons who are physically in Canada.  In December 2003, Supershuttle registered the Mark in Canada for use with “airport passenger ground transportation services” (the “Registered Services”).

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ILN Today Post

Sickness absence

Two recent court decisions have highlighted issues surrounding sickness absence, which provide some very useful guidance for employers when dealing with this issue. The first of these concerned the contractual status of absence procedures and the second a situation in which an employee was exaggerating the severity of an injury.

Absence policy incorporated in contract

In Department of Transport v Sparks and Others, the Court of Appeal upheld a finding that procedures in a staff handbook regarding absence management had been incorporated into the employees’ contracts of employment.

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Maryland Expands State Equal Pay Act and Broadens Employees’ Right to Discuss Wages

Maryland has now joined New York and several other states that have recently passed legislation expanding state equal pay laws and/or broadening the right of employees to discuss their wages with each other (often called “wage transparency”). The Equal Pay for Equal Work Act of 2016 (“Act”), signed by Governor Hogan on May 19, 2016 and set to take effect October 1, 2016, amends Maryland’s existing Equal Pay law (Md. Code, Labor and Employment, §3-301, et seq.), which applies to employers of any size, in several significant aspects.

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Lidings’ Partner Sergey Kislov Appointed as an Arbitrator of the Arbitration Court before Independent Arbitration Chamber

Lidings’ dispute resolution practice partner Sergey Kislov has been appointed as an arbitrator of the Arbitration Court before Independent Arbitration Chamber in Moscow.

Sergey Kislov is a seasoned Russian dispute resolution expert. He has extensive experience in bankruptcy and insolvency proceedings, as well as advising clients on corporate conflict prevention, business restructuring and sales of distressed asset. His professional portfolio boasts over 150 successful cases in arbitrazh courts and courts of general jurisdiction. Sergey authored multiple articles on dispute resolution, and frequently acts as expert at key legal events in Russia and abroad.

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New State Legislation Seeks to Curb “Drive By” Lawsuits and Service Animal Fraud

Service DogDespite the noble purpose for Title III of the ADA, businesses have long been frustrated by the ease in which Title III and its state and local equivalents can be exploited by serial plaintiffs/attorneys looking to make money instead of enforce the law.  Similar feelings arise from the inability of businesses to combat fraud tied to accessibility.   In an effort to address these concerns, recent developments at the state law level are ushering in a welcome change in the way certain accessibility issues are addressed.  California is strengthening its existing limitations on the ability of a plaintiff to file a “drive by” litigation alleging inaccessible structural elements under state law.  Colorado may soon adopt criminal penalties for individuals found to have fraudulently misrepresented an animal as a service dog.  While both of these measures are relatively modest in scope, they reflect a positive trend in legislation to try and limit accessibility litigations to legitimate claims.  Businesses can only hope these initiatives (and ones with even greater scope) gain traction in other states across the country and, ultimately, at the federal level.

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Week of May 16, 2016 on ILNToday – A Roundup!

roundupWe’re in the final stages of getting ready for our Annual Conference, which is in less than two weeks! So let’s jump right into the roundup!

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ILN Today Post

Collateral warranties: getting the best support!

Many occupiers still fail to sufficiently protect their interests by ensuring that the appropriate paperwork is in place when construction works are carried out in or adjacent to their premises.  Whilst many defects continue to be identified and remedied when a contractor is on site, significant problems can and do arise with latent or hidden defects.  Issues such as water ingress, damp or fire stopping works, among others, may not become apparent in some cases until many years after the original works were carried out.

When defects do arise from construction works, tenants should not assume that they will always be able to recover from their landlord under the terms of the lease.  This point can be illustrated by the well-known case of an upmarket lingerie company in a dispute with its landlord over damp-proofing works to basement premises[1].

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ILN Today Post

Employers Face Significant Increase in Required Salary Level for Overtime-Exempt Employees

The U.S. Department of Labor (DOL) recently issued its Final Rule addressing the minimum salary requirements for employees who are classified as exempt from overtime pay.

Under the Fair Labor Standards Act (FLSA), employees who are exempt from overtime under the commonly utilized executive, administrative and professional exemptions must: (1) be paid a predetermined and fixed salary that cannot be reduced based on variations in the quantity or quality of work performed; (2) be paid at a specified minimum salary level; and (3) perform primarily executive, administrative or professional duties, as defined in the FLSA regulations.

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