3.06.2015

The Jiminian Law PLLC News Clipboard - 3.6.15

The stories I found interesting as of 3.6.2015 in Media/Entertainment, Business, Intellectual Property and Nonprofits.

Media/Entertainment

  • Fox Can't Escape Lawsuit Alleging 'New Girl' Was Stolen
    • A judge has ruled that a rewrite of a lawsuit against 21st Century Fox over the sitcom New Girl should survive a motion to dismiss. The complaint comes from Stephanie Counts and Shari Gold, who allege New Girl derives from their proposals for a television show or movie that would have been titled Square One. The two plaintiffs are suing Fox, William Morris Endeavor, showrunner Liz Meriwether and executive producer Peter Chernin for allegedly lifting their materials after they shopped their script through WME and proposed Zooey Deschanel for the lead.
  • Hollywood Producer Is Still Paying for the 1846 U.S.–Mexican War
    • Time for some American history: Between 1846 to 1848, the United States of America and Central Republic of Mexico were engaged in armed conflict over territory. The war came to end upon ratification of the Treaty of Guadalupe Hidalgo, whereby the Americans paid millions for land in the Southwest including a large portion of New Mexico. Many years later, Peter Berg's Lone Survivor needed a place to shoot the story of a Navy SEALS team ambushed in the mountains of Afghanistan. They settled on a spot in New Mexico after reaching agreement with the Chilili Land Grant, run by Juan Sanchez. After the filming was done, however, a local landowner named Patrick Elwell wrote a letter to Lone Survivor producers. "I have no idea who authorized your Production Company to use my property for the filming of the 'Lone Survivor,' nor have I personally authorized any person or organization to act in my absence." For the bombing of his land, Elwell demanded $160,000, comprised of $75,000 for 19 days of filming on the property and $85,000 for "reclamation costs due to destruction of natural erosion preventing vegetation."
  • NFL’s $765 Million Concussion Pact Blocked as Insufficient
    • The National Football League’s $765 million settlement over concussions came up short a second time as a judge said she wants more changes before she’ll approve it. U.S. District Judge Anita Brody in Philadelphia, in an order the day after the New England Patriots defeated the Seattle Seahawks in Super Bowl XLIX, said the NFL should expand payment for some claims made by the more than 5,000 players who sued the league seeking damages for head injuries. Brody was swayed by the objections of dozens of former players and their families who said the deal wasn’t good enough, especially for those with symptoms of chronic traumatic encephalopathy, or CTE, a brain disease diagnosed only after death. The settlement should allow payment to retired players who died from the disease after the agreement’s July 7 preliminary approval date and before its final approval, Brody said in Monday in the order, in which she suggested several changes.
  • 'Blurred Lines' Trial Reveals How Much Money Robin Thicke's Song Made
    • Both sides agree with an accounting statement that attributes $16,675,690 in profits for "Blurred Lines," which was the biggest hit of 2013. According to testimony, $5,658,214 went to Thicke, $5,153,457 was given to Williams and $704,774 came to T.I. The record companies (Interscope, UMG Distribution and Star Trak) took home the rest, with an executive at Universal Music testifying that overhead costs on the creation of "Blurred Lines" accounted for $6.9 million.
  • T-Mobile's Legere again opens door to partnering with Dish
    • T-Mobile US (NYSE:TMUS) CEO John Legere reiterated his willingness to work with satellite TV provider and spectrum powerhouse Dish Network (NASDAQ: DISH) in some fashion. Speaking during parent Deutsche Telekom's capital markets day, Legere said that "Dish and we, that makes some sense." "It makes sense from the standpoint of integrating that spectrum and capability and deploying it at our network," he said, referring to the spectrum Dish won in the AWS-3 auction, according to Reuters. Dish, via designated entity bidding partners, secured 25 MHs of AWS-3 spectrum for $10 billion when discounts are factored in. 
  • ‘Wendy Williams Show’ Lawsuit Update: Interns Could Get Millions
    • Months ago it was reported a group of former interns were suing NBCUniversal because they feel like they were overworked while they interned at the “Wendy Williams Show,” and they feel they should have been compensated since they were responsible for such mundane tasks. Now there’s an update on the suit, and it’s being reported that a settlement is in the works.
  • Iowa Supreme Court turns down tax credit money for documentary linked to ‘Field of Dreams’
    • The Iowa Supreme Court has sided with the district court in denying film tax credits to a company which shot a documentary linked to the “Field of Dreams” movie site in Dyersville. The company that produced the documentary “Field of Dreams Ghost Player” about the lives of the men who portrayed the ghost players who come out of the cornfield in the movie “Field of Dreams,” were seeking around $400,000 under a 2009 contract through the now defunct film tax credit program. The Iowa Department of Economic Development figured they were only eligible for $59,000, and the investors in the project sued. The district court dismissed the lawsuit, saying the company did not go through all the needed administrative appeals before taking the legal action.
  • Viacom Sues Operators of Online Channel Playing "Classic" Nickelodeon
    • The parent company of Nickelodeon filed a lawsuit against the anonymous operators of the site for allegedly violating copyrights "willfully, maliciously and with wanton disregard" and for violating trademarks "by creating the false and misleading impression that Defendants’ pirated Viacom Works are produced, distributed, endorsed, sponsored, approved, or licensed." NickReboot offers free 24/7 streaming plus a premium on-demand service with a tab of $35.99 for a year. According to NickReboot's Twitter feed, the site has played shows like SpongeBob SquarePants, Jimmy Neutron, The Adventures of Pete & Pete and Rugrats in the past 24 hours. Viacom doesn't know who's behind NickReboot — otherwise it wouldn't be going to court against "John Does" — but it's not going to stand idly by on an unlicensed service, especially as it's about to launch its own over-the-top channel. The operators of NickReboot have done a square pants with Viacom lawyers these past couple years.
  • Gannett Says Carl Icahn Has Withdrawn Nominees to Its Board
    • A little over a month ago, Carl C. Icahn seemed poised for a fight at the Gannett Company. Now, the veteran activist investor is backing down. Gannett disclosed on Monday that Mr. Icahn had withdrawn his two nominees for its board, as well as his corporate governance proposals that would have made it easier to sell the media company. The billionaire owns roughly 6.6 percent of Gannett’s stock. The announcement came as Gannett outlined the corporate governance for its newspaper publishing business, which will be spun off as an independent public company later this year. Many of the rules fit the general principles that Mr. Icahn had advocated: annual elections for directors, a limited life span for anti-takeover “poison pill” plans, special meetings that can be called with the support of 20 percent of the company’s shares. Those rules appear to have persuaded Mr. Icahn that Gannett would not build up fearsome defenses to ward off potential suitors for either the newspaper or the remaining broadcast businesses. (Some compromises appear to have been struck, because Mr. Icahn initially sought a 10 percent threshold for special elections.)
  • U.S. Supreme Court should reconsider Major League Baseball's antitrust exemption, Stanford experts say
    • The evidence calls for America's high court to revisit Major League Baseball's antitrust exemption, according to two Stanford scholars. Baseball is unique among major American professional sports in that it enjoys an antitrust exemption that the others do not. Supporters of the exemption say MLB can prevent sudden franchise relocations, while critics say the exemption prevents team shifts when they are necessary. MLB's more than 90-year-old protection, however, may be at risk, due to a lawsuit winding its way through federal court. And Stanford Professors Emeriti William Gould IV and Roger Noll say the U.S. Supreme Court should reconsider baseball's antitrust exemption, which dates back to a 1922 case, the Federal Baseball Club v. National League, which found that baseball is not involved in interstate commerce or trade as defined by the Sherman Antitrust Act. In an interview, Gould said, "I'm in favor of rolling it back. Baseball has never really made the case that it is different and unique from other professional sports."
  • UFC antitrust lawsuit: Inside Bellator’s contracts and the effect on plaintiff fighters
    • ny media and fight fans know that Eddie Alvarez's 2012 UFC contract is in the public domain as part of Bellator's lawsuit against him in January 2013. Bellator's contractual match is effectively public as well, since its attorney admitted in an e-mail, "...we copied the Zuffa contract..." There are even court filings of a draft contract with "UFC" and "Zuffa" simply crossed out at every occurrence and replaced by "Bellator." Bellator's initial complaint contained Alvarez's complete UFC contract and, for obvious reasons, only limited excerpts of his Bellator contract. But only a few short weeks later Bellator needed to prevent Alvarez from obtaining an injunction which would free him to fight for the UFC that coming April. Bellator filed a brief and, low and behold, one of the appendices contained Alvarez's complete 2008 contract. Why does this matter? First, to my knowledge it's the first time a complete Bellator fighter contract has been made public. It didn't get picked up by the media a couple years ago like Alvarez's UFC contract, I'm guessing, because the filing was somewhat under the radar and not central to the case. Second, the UFC is presently being sued by current and former fighters for anticompetitive practices via "an illegal scheme to eliminate competition from would-be rival MMA Promoters by systematically preventing them from gaining access to resources critical to successful MMA Promotions, including by imposing extreme restrictions on UFC Fighters' ability to fight for would-be rivals during and after their tenure with the UFC." Put in English, they claim strict UFC contract terms keep fighters away from rival MMA promotions, thereby foreclosing other promoters and enabling the UFC to maintain and enhance its monopoly/monopsony power. As someone who's provided expert witness support for antitrust cases before (including what was at the time the largest antitrust case in U.S. history), one of the things we often see in these situations is the two sides checking if other competitors have undertaken similar actions to the ones that are allegedly anticompetitive.
  • Republicans’ “Internet Freedom Act” would wipe out net neutrality
    • US Rep. Marsha Blackburn (R-TN) this week filed legislation she calls the "Internet Freedom Act" to overturn the Federal Communications Commission's new network neutrality rules. The FCC's neutrality rules prohibit Internet service providers from blocking or throttling Internet traffic, prohibit prioritization of traffic in exchange for payment, and require the ISPs to disclose network management practices. These rules "shall have no force or effect, and the Commission may not reissue such rule in substantially the same form, or issue a new rule that is substantially the same as such rule, unless the reissued or new rule is specifically authorized by a law enacted after the date of the enactment of this Act," the Internet Freedom Act states. Comcast, AT&T, and Verizon are a bit miffed too. The legislation has 31 Republican cosponsors.
  • Jury Smacks Wu-Tang Label With $200K Copyright Verdict
    • A Manhattan jury on Wednesday hit Soul Temple, a record label with ties to the Wu-Tang Clan, with a $200,000 copyright infringement verdict for willfully grabbing two images of boomboxes produced by Lyle Owerko from the Internet for use on Wu-Tang rapper U-God's 2013 solo album “The Keynote Speaker” and related merchandise. The civil jury consisting of four men and two women needed only about 40 minutes to find against Soul Temple, which conceded it infringed the images in a trial before Manhattan U.S. Magistrate Judge Ronald L. Ellis but contested the issue of willfulness. ...Soul Temple's former general manager Bob Perry told the jury Tuesday that the label grabbed the images from thousands available on the Web without realizing that they were copyrighted. Owerko sued in September after seeing the album art on iTunes. Perry, who is not a defendant, apologized on behalf of the company after the verdict for any damage to the value of Owerko's copyrighted images. "I will certainly be more diligent when it comes to sourcing and selecting images for inclusion in my album packaging in the future," he said (a lesson for all ~ DaJi). Noting among other things that Soul Temple is not a going concern, Chin was granted a previous request to withdraw from the litigation immediately after the verdict. It was unclear how Owerko would collect on the judgment. Wu-Tang rapper U-God, whose real name is Lamont Jody Hawkins, was dismissed — albeit without prejudice — from the litigation in January. Wu-Tang rapper RZA, whose real name is Robert Fitzgerald Diggs, founded Soul Temple. He refused to participate in the litigation. Owerko's counsel, Dan A. Nelson of Nelson & McCulloch LLP, moved for attorneys fees and costs after the verdict. "We are pleased with the jury's verdict and believe it is appropriate in light of Soul Temple's willful infringement of Lyle Owerko's copyrights. We look forward to an award from the court of Mr. Owerko's fees and costs and will take steps to enforce the judgment when the final amount is determined," Nelson said.
  • EMI Sued in Foreign Royalties Dispute With Monkees Songwriter
    • The lawsuit filed by Stephanie Ford Stewart in Marin County Superior Court on Monday alleges that her late husband signed a publishing deal with Screen Gems-Columbia Music in 1967 that provides for 50 percent of the publisher's foreign earnings. After the contract was signed, EMI acquired Screen Gems. Instead, the publisher has paid the songwriter and his family trust only 25 percent, says the complaint, shortchanging the songwriter and his widow at least $450,000. EMI did this, though her complaint calls it "accounting sleight of hand." The key to her allegations is that the money "Daydream Believer" made in foreign countries was split once before it reached EMI North America, which then split the remainder 50/50 — according to the contract — with the Stewarts. The first split sent some of the profits to foreign publishers that distributed the song in their respective territories. But those foreign publishers aren't independent entities. They're direct subsidiaries of EMI, which "exercises total control over these subsidiaries to create substantial profits and increase the corporate bottom line," the complaint reads.
  • Fox Can't Escape Lawsuit Alleging 'New Girl' Was Stolen
    • A judge has ruled that a rewrite of a lawsuit against 21st Century Fox over the sitcom New Girl should survive a motion to dismiss. The complaint comes from Stephanie Counts and Shari Gold, who allege New Girl derives from their proposals for a television show or movie that would have been titled Square One. The two plaintiffs are suing Fox, William Morris Endeavor, showrunner Liz Meriwether and executive producer Peter Chernin for allegedly lifting their materials after they shopped their script through WME and proposed Zooey Deschanel for the lead. In October, U.S. District Judge Stephen Wilson couldn’t make sense of what was alleged to have been infringed and so he decided to reject an “ambiguous” lawsuit. On Wednesday, after Counts and Gold tried again with an amended lawsuit, Wilson came to a new conclusion. “While Plaintiffs’ [second amended complaint] is largely the same as their [first amended complaint], it contains a few significant changes,” he writes. “Though it still mentions all four versions of Square One, the SAC now specifies that Plaintiffs allege that Square One 2008 and Square One 2009 were copied by Defendants to create the New Girl pilot script titled ‘Chicks and Dicks’ and the first season of New Girl.” For now, this means that the case will examine early episodes of New Girl to see if it is substantially similar to plaintiffs’ works, described as being based upon “Stephanie’s real-life experience when she discovered her husband was having an affair, leading her to move into a three-man bachelor pad.” Since it’s only a motion to dismiss, Judge Wilson is not analyzing the merits of the claim. Rather, he’s assuming truth in plaintiffs’ favor and examining whether the claims support a legal action. “Though Gold’s and Counts’s SAC lacks mathematical precision, it is sufficiently clear to notify Defendants of the nature of their claim,” he writes.
  • Model Accuses Trump Model Management Of Racketeering and Violating Wage Laws For Immigrants, Trump Agency Wants Suit Dismissed
    • Alexia Palmer filed a class action suit in the United States District Court, Southern District of New York against Trump Model Management, its president and other big wigs at the company, for breaking federal immigration laws and bilking her out of more than $200,000 in salary, reports New York Post. Palmer is accusing the élite modeling agency of racketeering, breach of contract, mail fraud and violating wage laws for immigrants. Specifically, Palmer claims she was promised a $75,000 annual salary by Trump but only received $3,380.75 for 21 modeling gigs between January 2011 and December 2013, after the agency deducted a 20 percent handling fee and various “insignificant expenses,” according to the complaint obtained by the NYP. The Trump agency lied to the federal government by documenting on her work visa application that she would be paid a yearly salary of $75,000 while living in the U.S, according to the complaint. Palmer is seeking back pay and monetary damages. Naresh Gehi, attorney for Palmer said, “the model’s rights were “miserably violated” and “my client should be paid what she was promised.” However, Alan Garten, counsel for Trump Model Management said the claims are “frivolous and bogus.” Under U.S. immigration laws, there are three methods to qualify for a model visa: O-1 Alienv Visa, P-3 Cultural Event Visa and the H-1B3. These visas allow a model to temporarily visit the U.S. to work or take part in modeling events. The H-1B3 visa is designated for fashion models, which is a sub category of H-1B.
  • NFL player accepts $1,000 settlement from BB&T
    • A plaintiff, Frank Gore, has agreed to take a drastically reduced monetary settlement in a high-profile lawsuit involving BB&T Corp. and 16 current and former NFL players, The players sued BB&T in November 2013, citing disputed financial transactions made within a south Florida bank before BB&T bought the bank in July 2012. The players said BankAtlantic allowed a concierge financial-management firm, Pro Sports Financial Inc., to open new accounts in their names via forged signatures and to withdraw nearly $53 million without their permission or knowledge. Frank Gore, currently a San Francisco 49ers running back, claimed a loss of $1.6 million. In the agreement filed Monday, Gore will accept $1,000 to settle his claim. BB&T will not have to pay any punitive damages to Gore. The money could be paid to Gore as early as next week.
  • Judge Rules Louis C.K. Owes Health and Pension Contributions for FX's 'Louie'
    • A judge in New York federal court on Thursday told Louis C.K.’s production company, Pig Newton Inc., that it owed unpaid contributions to union-affiliated benefit plans for the star’s work editing his Louie series on FX.
  • Oprah Winfrey prevails in 'Own Your Power' lawsuit
    • Oprah Winfrey has prevailed in a trademark lawsuit challenging her use of the phrase “Own Your Power” in her namesake magazine, on TV, on websites and in social media accounts. U.S. District Judge Paul Crotty in Manhattan ruled on Thursday that Winfrey, her company Harpo Productions Incand her publisher Hearst Corp demonstrated that the phrase “lacks the requisite distinctiveness” to deserve trademark protection. Crotty also said Simone Kelly-Brown, a motivational speaker and business coach who said she trademarked the phrase in 2008, and her company Own Your Power Communications Inc did not show that Winfrey’s use of the phrase would likely confuse consumers.
  • Hall and Oates sue the makers of “Haulin’ Oats” cereal
    • It’s a dark time for fans of pun-based breakfast granolas, as the BBC reports that musicians Daryl Hall and John Oates are suing Early Bird Foods & Co, the makers of “Haulin’ Oats” brand cereal. It seems that the musicians are unhappy that the company is daring to mildly amuse literally tens of people with its “phonetic play on Daryl Hall and John Oates’ well-known brand name.” Lawyers for the two agreeably inoffensive rockers filed suit in a Brooklyn federal court this week. The offending brand of health-conscious breakfast food is identified as a nut-free cereal (mistake number one, Haulin’ Oats) made from maple syrup and oats. The company describes it as “back-to-basics flavor... perfect by itself or as the base for a breakfast parfait creation,” perhaps as the added ingredient in your signature “Sounds Like Vanilla” smoothie. There is no official response from Early Bird Foods & Co as of yet, but presumably the company is busily thinking up alternative names for their granola that better evoke the taste of maple syrup and oats, like “Maple Syrup n’ Oats.” This is just the latest in a long line of pun-related court cases which have so exhausted Daryl and John over the years, to the point where they can barely muster up any enthusiasm for their own last names (especially Oates, who has “less enthusiasm than Hall” emblazoned on his family crest.) The lawsuit notes that this is merely the most recent of numerous efforts “to make a connection between the artists’ names and oats-related products.”
  • Dr. Dre Sued For $6 Mill By Singer Over NWA Film “Straight Outta Compton”
    • Dr. Dre (real name Andre Romelle Young) is being accused of song theft by a 70’s R&B star, who says the rapper never got permission to sample his hit song. He is demanding over $6 million dollars due to the song being featured in the upcoming N.W.A. film Straight Outta Compton. Leroy Phillip Mitchell (aka Prince Phillip Mitchel) – a 70’s R&B singer – filed a federal lawsuit against Dr. Dre and Universal Pictures over the upcoming NWA film. Mitchell explains that he is the owner of the copyright for the 1977 song, “Star in the Ghetto“. He explains that Dr. Dre and MC Ren authored a song entitled, “If It Ain’t Ruff” back in 1989 and the song is to be featured in the upcoming film. 

Business

  • Gag order lifted in Massey ex-CEO's trial over fatal West Virginia mine blast
    • A federal appeals court lifted a sweeping gag order on Thursday that sealed court documents and barred participants from talking about a West Virginia criminal case stemming from the worst U.S. mine disaster in four decades. The 4th U.S. Circuit Court of Appeals in Richmond ordered the U.S. District Court in Beckley, West Virginia, to lift the gag order in the case against former Massey Energy Chief Executive Officer Don Blankenship. He has been charged with violating mine safety laws before an April 2010 explosion that killed 29 miners at the Upper Big Branch Mine in West Virginia. The miners’ deaths prompted a national review of mine safety standards.
  • What Amazon Giveaway means for sweepstakes laws
    • With the launch of Amazon Giveaway this February, Amazon, having radically reshaped publishing, retail and digital content, showed its intent to do the same to sweepstakes. The e-commerce giant’s latest service allows anyone to sponsor and run a sweepstakes through a relatively simple process. Sponsors need only select a prize, a Giveaway type, and a method of entry. Amazon takes care of the rest, including selecting the winners, shipping the prize and, perhaps most importantly, establishing and enforcing the rules.
  • State announces settlement in controversial Exxon Mobil pollution case
    • Exxon Mobil will pay the state $225 million to resolve liability for contamination at two New Jersey refinery sites, according the state Attorney General's office. Additionally, the company remains responsible for ongoing cleanup at the two sites, known as the Bayonne and Bayway facilities, according to details of the settlement released Thursday. The announcement was the first time the administration publicly acknowledged the controversial settlement, and detailed a number of terms of the agreement, though questions remain unanswered. "This important settlement, which came about because this administration aggressively pushed the case to trial, is the result of long fought settlement negotiations that pre-dated and post-dated the trial," said acting Attorney General John Hoffman. "It ensures the continuation of the ExxonMobil-funded remediation work at these contaminated sites, and it holds the company financially accountable through payment of a historic Natural Resource Damages settlement on top of Exxon's obligation to clean up the sites."
  • RadioShack Bankruptcy Could Take Toll on Junior Creditors
    • RadioShack Corp's creditors ironed out the final details of a $285 million bankruptcy loan at a court hearing Wednesday amid indications that suppliers, landlords and other unsecured creditors will sustain significant losses in the retailer’s chapter 11 proceeding. 
  • GOP-run Senate panel moves against the NLRB
    • With the Senate Labor Committee now in the hands of Republicans - anti-worker, anti-union, from the South, or all three - both labor committees on Capitol Hill are attacking workers' rights enforced by the National Labor Relations Board. But while House Education and the Workforce Committee Chairman John Kline, R-Minn., has conducted a war against unions and workers for years, Senate Labor Chairman Lamar Alexander, R-Tenn., and one subcommittee chairman, Richard Burr, R-N.C., are new to the role of leading a committee's anti-worker anti-union charge. But they attacked anyway. Burr called a subcommittee hearing on February 5 to trash the NLRB General Counsel Richard Griffin for his decision to hold franchise companies - think McDonald's headquarters - jointly responsible with franchise-holders - think your local McDonald's - for instances of labor law-breaking and worker rights violations at the local level.
  • States Weigh Legislation to Let Businesses Refuse to Serve Gay Couples
    • As it looks increasingly likely that the Supreme Court will establish a nationwide right to same-sex marriage later this year, state legislatures across the country are taking up bills that would make it easier for businesses and individuals to opt out of serving gay couples on religious grounds. Many states are now reliving a version of events that embroiled Arizona in February 2014, when Gov. Jan Brewer, a Republican, vetoed a bill that would have allowed businesses to use their religious beliefs as a legal justification for refusing to serve gay customers. The resurgent controversy is fueled in part by a deep anxiety among many evangelicals and other conservatives that the Supreme Court will make same-sex marriage legal in all 50 states after it takes up the matter in April.
  • 9th Circuit Win for Disabled Pier 1 Shopper
    • In the latest chapter of an 11-year lawsuit against Pier 1 Imports, the 9th Circuit partly upheld the ruling for a disabled shopper at one of the chain's California stores. The case Byron Chapman filed against the retailer in 2004, regarding architectural features at a Pier 1 in Vacaville that acted as a barrier to his wheelchair, has already gone before the federal appeals court three times. In 2011, the en banc court ordered the case dismissed because it found no proof that Chapman personally suffered discrimination under the Americans with Disabilities Act, despite showing that barriers existed at the store. U.S. District Judge Lawrence Karlton declined, however, to dismiss Chapman's suit on remand. Instead the now-retired judge allowed Chapman to amend his complaint. Chapman presented just two claims in his second amended complaint: that clutter made the store's aisles unlawfully narrow, and that the customer-service window was also cluttered with merchandise. Both parties, trying to avoid a trial, filed for summary judgment. Karlton rejected Pier 1's motion in June 2012 but found that Chapman had "established, without dispute, that on numerous occasions, Pier 1's aisles were blocked and that its accessibility counter was cluttered." Appealing that finding last year, Pier 1 told the 9th Circuit that this ruling improperly excluded a store manager's declaration about the store's policy of ensuring that potential obstacles were only temporary. The three-judge panel affirmed Thursday that obstructions Chapman "encountered were not permissible 'isolated or temporary interruptions in ... access' under the ADA Accessibility Guidelines because the evidence demonstrated that Pier 1 repeatedly failed to maintain accessible routes in its store."
  • Recent NY Attorney General Press Releases - as of 3.5.201
  • NYC Mayor Bill de Blasio Announces $150 Million Investment in Hunts Point Market
    • Mayor Bill de Blasio announced today that his administration will invest $150 million over the next 12 years to revitalize the Hunts Point food distribution center in the South Bronx. Mr. de Blasio, who has made combating income inequality in the outer boroughs a centerpiece of his economic agenda, said the investment would modernize buildings and other infrastructure at the crucial food market. “It’s hard to overstate how important Hunts Point is to the future of the city,” Mr. de Blasio said at an Association for a Better New York breakfast in Manhattan. 
  • The “Browsewrap”/”Clickwrap” Distinction Is Falling Apart
    • It is somewhat surprising that, in 2015, courts are still hashing out online consumer contract formation issues. After all, the seminal case, Specht v. Netscape, was decided over a dozen years ago. Yet, a few recent cases show that companies often don’t get the contracting process right. In all or most of these cases, the companies are trying to push the disputes into arbitration (on an individual, rather than a class-wide basis). So the result of a flawed contract formation often means that a company has to litigate a claim in court rather than a more convenient and less expensive forum.  Nicosia v. Amazon, 2015 U.S. Dist. LEXIS 13560 (E.D.N.Y. Feb. 4, 2015) (see the complaint), an example of correct implementation: Plaintiff sued Amazon in a putative class action, alleging that Amazon sells weight loss supplements containing “sibutramine,” which is a controlled substance, that can’t be sold without a prescription, and which allegedly has negative side effects.
  • IRS Tip of the Day - March 5, 2015
    • The IRS has added three revised publications to IRS.gov. These publications will help businesses and individuals understand how to figure depreciation as well as pension options.

      • Publication 946, How to Depreciate Property explains how you can recover the cost of business or income-producing property through deductions for depreciation. The publication was updated to reflect the extension of expiring tax provisions in legislation signed into law on Dec. 19. 
      • Publication 4587, Payroll Deduction IRAs for Small Businesses explains that individuals saving in a traditional IRA may be able to receive some tax advantages on the money they contribute, and the investments can grow tax-deferred.
      • Publication 4334, SIMPLE IRA Plans for Small Businesses explains how a SIMPLE (Savings Incentive Match Plan for Employees of Small Employers) IRA plan offers great advantages for businesses that have 100 or fewer employees (who earned $5,000 or more during the preceding calendar year) and that do not have another retirement plan.
      (Note. If you click on the links for publications and forms at SMBIZ.com you're automatically taken to the latest form or publication.)
      The IRS has reported some filing statistics for this season through February 27, 2015. Compared to last year, returns received by the IRS are down 0.6%; returns processed are down by 1.0%. Professionally prepared e-filed returns are down by 4.4%; e-filed returns by individuals are up by 6.0%. (More than likely the reason is that professionals deal with the more difficult returns, which tend to get filed later.)
      A business entity can't automatically avoid a liability for a predecessor's actions. For example, Madison Inc. has unpaid employment taxes. It liquidates and the shareholders incorporate Chatham Inc. using the same assets, customers, suppliers, etc. In TFT Galveston Portfolio, Ltd. as Successor In Interest for TFT #2, Ltd., et al. (144 T.C. No. 7) the taxpayer received a Notice of Determination Concerning Worker Classification and corresponding employment tax liabilities on its own behalf and other such notices as successor in interest to various partnerships. The IRS and the taxpayer dispute whether the taxpayer was a successor in interest under Texas law, and the IRS asserted the Tax Court should establish a Federal standard of successor in interest as Federal common law. In addition, the status of the taxpayer's workers for the period involving the taxpayer was itself at issue. The Court held that the taxpayer was not a successor in interest under Texas law and the Court did not adopt a Federal common law standard of successor in interest. Finally, the Court held the taxpayer's workers were employees.

Intellectual Property

  • Why No One Likes Them (Patent Trolls)
    • IN FOLKLORE trolls terrorise goats and children. Online, they post abusive messages about people they have never met. In the world of intellectual property, the term "patent troll" denotes a firm that owns a patent, but does not manufacture products or supply services based upon it. Although there is nothing wrong in principle with an inventor licensing his ideas or selling the rights to them outright, many trolls are not genuine inventors. Moreover, lengthy and expensive lawsuits over patent infringement, new research suggests, act as a drag not only on the economy as a whole, but also on innovation itself. Patent trolls are not new. In 1895 George Baldwin Selden (pictured), an American lawyer, was awarded a patent for an “improved road-engine”. The idea was not really his: he plagiarised it from an exhibit at the 1872 Centennial Convention. But that did not stop him from suing car manufacturers for infringing on his "hard-earned" patent, forcing them to pay him royalties.
  • Federal Circuit rules on PLAYDOM service mark
    • A common question in trademark law is what constitutes “use” in commerce of a service mark. The answer is often complicated and fact driven. This week the Federal Circuit clarified the question in its ruling in David Couture v. Playdom, Inc.... The bottom line is that merely advertising services is not enough to file a Section 1(a) application- services identified in a use-based application must be rendered before filing the application. If you are not performing the services in your application yet, it is best to either wait to file a 1(a) application when the services are actually rendered, or file a Section 1(b) intent to use application.
  • Dentist Who Claimed Copyright Over Patient’s Yelp Review Must Pay $4,766 In Damages
    • Way back in 2011, we told you about a dental patient who said his dentist had gone too far with a “privacy agreement” that preempted patients from publicly complaining about the doctor and claimed copyright on patients’ reviews. After nearly four years of legal wrangling, the dentist has finally been ordered to pay the patient nearly $5,000 in damages, though he may never get it. Some quick background: The patient complained on Yelp and elsewhere that the dentist had overcharged him and screwed up submitting his claims to his insurer. The dentist, citing an agreement the patient had signed, demanded the reviews be removed because they “are not considered constructive commentaries but rather as personal attacks to the office’s well-being and reputation.” The patient refused, resulting in invoices for $100 charges for each day the reviews remained online. In an attempt to get the write-ups taken down, the dentist claimed copyright ownership of the content under the Digital Millennium Copyright Act, but the patient countered that the reviews were protected fair use speech. According to the default judgement [PDF] by a U.S. District Court in NYC last week, the judge concurs, saying that the prohibition against negative criticism, along with the use of copyright claims to prevent these reviews from being seen “constitute breaches of fiduciary duty and violations of dental ethics and are subject to the equitable defenses of unclean hands, and, as to such assignment and assertion, constitute copyright misuse.” In the end, the court awarded the patient $4,766 in damages but he’s unlikely to ever see that money as the dentist apparently vanished into the ether in 2013.
  • U.S. Trade Representative Highlights World's Most Notorious Piracy Markets
    • The Office of the U.S. Trade Representative (USTR) today issued its report on “Notorious Markets” -- locations, physical or online, in which copyright theft is open, pervasive and undermines the respect for the rule of law. In addition to physical markets from Argentina to Ukraine that operate in blatant disregard of the law, Internet sites such as Baidu of China, vKontake of Russia, allofmp3.com clones in Russia and Ukraine, Canada’s isoHunt and Sweden’s The Pirate Bay are all featured prominently in the report.
  • 1-800-Flowers.com countersues Edible Arrangements
    • Long Island-based 1-800-Flowers.com has countersued competitor Edible Arrangements International LLC, a Connecticut company that had accused 1- 800-Flowers.com in November of trademark infringement. The countersuit, filed Friday by 1-800-Flowers in federal court in Connecticut, alleges "anticompetitive activities" by Edible Arrangements, including that it "has improperly claimed trademark rights in generic terms that competitors need to use to be able to compete effectively in the market," including terms like "edible" and "edible arrangements." The suit claims those activities plus lawsuits and threats of lawsuits against competitors "have chilled competition and, unless enjoined, will continue to chill competition, by making it too burdensome and expensive for competitors to use generic terms or to make lawful fair use of terms that rightly belong in the public domain."
  • Here is Amazon's audacious plan to go way beyond drones
    • Amazon has filed for patents on a system that would use truck-based 3D printers to quickly deliver customers’ bespoke orders, the Wall Street Journal reports. Such an idea could help the company more quickly deliver customers’ orders, assuming they’re able to be 3D-printed. “Time delays between receiving an order and shipping the item to the customer may reduce customer satisfaction and affect revenues generated,” wrote Amazon in the patent applications. A move to these tech-filled vehicles, in turn, would also decrease warehouse and inventory storage space needed, the application continued. Of course, just because the e-commerce giant submitted the application doesn’t mean the idea will ever come to fruition. The patent may not even be accepted, writes the Journal. In the past, Amazon filed for a patent on “anticipatory delivery” in which merchandise would start being delivered to customers ahead of purchase. But that idea hasn’t been put to use, the newspaper notes.
  • #ALICESTORM: PATENT INVALIDATIONS AND USPTO PRACTICE AFTER ALICE
    • The Pineapple Express storms that hit California last December were the largest since January 2008. The joke going around the Bay Area was that the first thing San Franciscans do when a big storm is coming is think up a new hashtag; #hellastorm apparently took top place. Looking at the number of patents that have been invalidated in the six-plus months since the Supreme Court’s decision in Alice Corp. v. CLS Bank [1], the only thing that adequately describes the situation is #Alicestorm.
  • The Strong Patent Act of 2015 from Senator Coons
    • Senator Coons is expected to introduce his competing patent reform bill into the Senate this week under the title Strong Patents Act. As the name suggests, these provisions here tend to strongly favor patent holders. With his usual understated tone, Herb Wamsley writes that Coons’ bill “will differ substantially from Rep. GOODLATTE’s bill H.R. 9.” In the current political state, this provision has no hope of being enacted. However, I suspect that supporters of provision see it as having strong gridlock-creating potential. The following is a fairly high-level review of the particular proposals as well as a link to the text of the bill.
  • Sensitive Patent Application Warning System Scrapped
    • The Sensitive Application Warning System (SAWS) was developed in 1994 to allow patent examiners to alert leadership when a patent might issue on a sensitive matter. Only a small number of applications examined over the last twenty years were ever referred to the SAWS program. And today, unlike when the SAWS program was created, most applications are published eighteen months after submission, exposing them to public scrutiny and the potential for third-party submissions of prior art. Upon careful consideration, the USPTO has concluded that the SAWS program has only been marginally utilized and provides minimal benefit.
  • With Highly Anticipated Copyright Decision, The AutoHop Litigation Is Coming to a Close
    • In 2012, DISH Network announced two novel product offerings that would result in considerable backlash from the four major broadcast television networks and set in motion a three-year, wide-ranging, multi-front battle with the networks. As the dust now begins to settle, the copyright litigation has resulted in important precedents that will help define the boundaries under the Copyright Act for the multi-channel programming distribution industry.
  • Judges skeptical Apple suffered irreparable harm from Samsung patent infringement
    • In a hearing with the U.S. Court of Appeals for the Federal Circuit, Apple argued for an injunction against Samsung handsets that infringe on patented technology, reports Reuters. The appeals case relates to the second Apple v. Samsung trial heard in California, which was decided in May 2014 when a jury found Samsung guilty of infringing on Apple's '647 patent for data detectors and '721 patent for "slide-to-unlock." Judge Lucy Koh, who presided over that case, also handed down a summary judgment holding Samsung in infringement of Apple's '172 patent for predictive text input. Despite past findings of infringement, appeals court Judge Kimberly Moore voiced skepticism over Apple's claims of irreparable harm, noting that Apple licenses the same technology to other companies. "You've already licensed these patents up the wazoo!" Judge Moore said, adding later, "You've licensed them to everyone. So why is it irreparable harm if Samsung uses the patents?"

Nonprofits


  • Religious Institutions Update: March 2015
    • Several interrelated legal developments make it more important than ever for religious institutions intending to qualify for exemptions to generally applicable laws to do the hard work before litigation or administrative inquiry of considering what their religious beliefs mean for their governance structure, employment relations and delivery of services. The National Labor Relations Board (NLRB) announced the newest such legal development in Pacific Lutheran University and Service Employees International Union, Local 925, Case 19-RC-102521 (Dec. 16, 2014). In Pacific Lutheran, the NLRB announced a new policy with respect to determining whether to decline jurisdiction over faculty members at a "college or university that claims to be a religious institution." Even if you are not operating a college or university, keep in mind that the same test is likely to find broader application in the years to come as it has in the past to religious hospitals, secondary schools and parachurches even against precedent adverse to the NLRB. As a replacement for the "substantial religious character" test, the NLRB announced that it will exercise jurisdiction over a religious college unless the institution demonstrates that (1) it holds itself out as providing a religious educational environment and (2) it holds out the petitioned-for faculty members as performing a religious function. Does your organization hold itself out as providing primarily faith-based services and your employees as performing faith-based functions consistent with those services? The NLRB explained that the second test, which it said was not met in this case, "requires a showing by the college or university that it holds out those faculty as performing a specific role in creating or maintaining the university's religious educational environment." If you have not recently examined your formative faith-based governance, employment and service documents with the assistance of qualified counsel, consider doing so as soon as possible to be sure that you take advantage of the lessons of recent precedent.
  • Ex-Red Cross Chief Running For President
    • Mark Everson, the former IRS commissioner who later took the helm of the American Red Cross and was forced to resign, has thrown his hat into the ring for President of the United States. He’ll run as a Republican. Everson was pushed out of the Red Cross in November 2007 after it was learned he was involved with a married chapter president who was also pregnant with his child. Everson was married at the time with two adopted children and has since divorced. He was in the $500,000 job less than six months. His only statement on the resignation was a written release in which he is quoted as saying: “I am resigning my position for personal and family reasons, and deeply regret it is impossible for me to continue in a job so recently undertaken. I leave with extraordinary admiration for the Red Cross.”
  • New York Bank Sued for Fair Housing, Lending Violations
    • New York banks are continuing to face lawsuits over alleged discriminatory lending practices. In September 2014, the state’s Attorney General, Eric T. Schneiderman, filed a “redlining” suit against Evans Bank, N.A., and its holding company, Evans Bancorp, Inc. (collectively, “Evans”), alleging that Evans systematically denied its residential mortgage lending products and services to African Americans in the Buffalo metropolitan area. The latest suit, filed by a nonprofit civil rights organization, the Fair Housing Justice Center (FHJC), alleges discriminatory lending practices against M&T Bank Corporation. The Complaint, filed in federal court on February 3, 2015, avers that FHJC hired nine testers of different racial backgrounds to visit the bank over a two-year period to inquire about obtaining a mortgage as a first-time homebuyer. The FHJC and its testers (the Plaintiffs) claim that the bank’s loan officers engaged in allegedly discriminatory lending practices such as steering testers to certain neighborhoods based on demographics and offering different loan terms and conditions based on national origin or race. The suit seeks broad injunctive relief to halt alleged violations of the Fair Housing Act and state and local human rights laws, as well as money damages.
  • Congressional Proposals for Nonprofit Tax Breaks and Extenders
    • In February, the House of Representatives passed several tax bills and the Senate Finance Committee approved several tax bills that, if ultimately enacted, would impact tax-exempt organizations. The House bills would reduce the excise tax on the net investment income of private foundations. They also would extend and make permanent the temporary provisions applicable to IRA charitable distributions, conservation easements and contributions of food inventory, as well as the basis rules for stockholders of S corporations making charitable contributions of property. The Senate Finance Committee proposals would modify the provisions applicable to the excess business holdings rules, agricultural research organizations and revocation of exemption for failure to file information returns. The proposals passed out of the Senate Finance Committee on Feb. 11, 2015, and now head to the full Senate. The House bills, bundled together as the “America Gives More Act of 2015,” passed the House on Feb. 12, 2015, and now head to the Senate. President Obama has already indicated that he will veto the House proposals for failure to offset the costs of the proposals.

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