Contributed by Jonathon Hoag, March 24, 2017 On March 22, 2017, the U.S. Senate passed a measure to revoke OSHAs modification to the six-month statute of limitations for recordkeeping violations. Under the Obama Administration, OSHA issued a new rule to extend the statute of limitations for recordkeeping violations from six months to five years. The […]

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Last week, the New Mexico state legislature passed abillrequiring that New Mexico state residents be notified if their non-encrypted personal identifying information (including biometric data) is breached. Once the bill is signed into law, New Mexico will join 47 other states with similar notification laws, and the only two hold-outs will be South Dakota and […] The post New Mexico Passes Data Breach Notification Legislation appeared first on Lewis Roca Rothgerber Christie - Intellectual Property Blog.

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Upon reconsideration in Gerard v. Orange Coast Memorial Medical Center, Case No. G048039 (March 21, 2017) (Gerard II), the Fourth Appellate District decided that IWC Wage Order 5 is valid and that healthcare employees may waive one of their two required meal periods on shifts longer than 8 hours. The court’s first opinion concluded that IWC Wage Order 5 was partially invalid to the extent that it authorized healthcare employees to waive their second meal periods on shifts over 12 hours.  (Gerard v. Orange Coast Memorial Medical Center, 234 Cal.App.4th 285 (2015), review granted May 20, 2015, S225205 (Gerard I))…

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Millennial sports fans are moving away from cable television and traditional sports towards online video game tournaments and other eSports. A study conducted by LEK Consulting revealed a sharp generational divide among sports fans. This divide is marked by a change in TV viewing habits between millennials (those between 18-25 years old) and those above 35. The report stipulated that millennials are spending less time watching traditional cable television, and thus, losing interest in traditional sports. As background, LEK conducted a survey of…

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An agency may issue a generally applicable statement in an order in contested cases when the order is issued after public notice and a public hearing, held the Michigan Court of Appeals in In re Antrim Shale Formation re Operation of Wells Under Vacuum, Nos. 327723 and 330161. 

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The Problem As we know all too well, plaintiffs often have a ready-made underdog tale in civil trials: David (their client) against Goliath (your client). And nobody roots for Goliath. Thats strike one against you, before you even start. Add in the fact that many jurors assume your client must have done something wrong if […] The post Why Storytelling is Your Best Defense appeared first on Litigation Insights.

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A new bill, AB 851, was introduced in the California legislature on February 16 that would expand the scope of the design-build authority currently available to local agencies. If adopted, AB 851 would amend Public Contract Code sections 22161 to expand the definition of special districts that can utilize the design-build authority under Public Contract… Continue Reading The post New bill would expand design-build authority for local agencies appeared first on Infrastructure Law Blog.

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All non-exempt employees are required to be paid separately for rest breaks and other non-productive work time. This may come as a surprise to businesses that employ commissioned or piece rate employees, who may have assumed (incorrectly) that the commission or piece rate compensation earned by their employees – often very high amounts – is sufficient to cover the pay to which those employees are entitled for rest breaks or other non-productive work hours.  Entitlement to Rest Breaks In California, non-exempt employees are entitled to one 10-minute paid rest break for every 4 hours (or major fraction thereof) of work. The rest…

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Support Animals in the Workplace California employers are familiar with service dogs as a reasonable accommodation for employees and applicants with disabilities. But, what about support animals In 2013, the California Fair Employment and Housing Act (FEHA) required California employers to allow assistive animals in the workplace as a reasonable accommodation. Assistive animals include service dogs, but also support animals that provide emotional or other support to a person with a disability, including but not limited to, traumatic brain injuries or mental disabilities, such as major depression.

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On Sunday, March 19, 2017, an Illinois Federal Judge denied Kranos Corporations and Xenith LLC motion to stay Riddells helmet patent infringement cases against them, holding that a pending Patent Trial and Appeal Board (PTAB) review does not provide an automatic stay for the two cases. As previously reported, Riddell filed two lawsuits against Kranos and Xenith in April 2016, alleging their helmet designs infringed Riddells patented helmet designs. While the judge presiding over the case denied Riddells motion to consolidate the two…

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Good news for infrastructure, including mining projects! On March 21st, the House Subcommittee on Energy and Natural Resources chaired by Congressman Paul Gosar (R-AZ) held a hearing on infrastructure and discussed permitting timeline delays in the U.S. Notably, Gosar stated: Aggregates such as crushed stone, sand and gravel are the literal foundation of many of […] The post U.S. House Subcommittee on Energy and Natural Resources Discusses Expedited Permitting for Mines appeared first on Lewis Roca Rothgerber Christie - Energy Blog.

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In a trademark infringement action involving the mark DJ LOGIC for music produced using turntables and vocals, the U.S. Court of Appeals for the Sixth Circuit explored evidence of social media promotion submitted by the plaintiff to support the commercial strength of his mark. Kibler v. Hall, 121 USPQ2d 1069 (6th Cir. 2016). The use […] The post DJ LOGIC Trademark Infringement Case Shows Social Media Matters appeared first on Lewis Roca Rothgerber Christie - Intellectual Property Blog.

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All good things must come to an end. Professional firms are no exception. There are many reasons that a professional firm may close its doors; however, regardless of the cause, professionals must remain cognizant of their ethical duties to third-parties and clients throughout the dissolution process.

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Retired NFL Players claiming that their teams pushed them to abuse painkillers recently filed an amended complaint alleging that doctors and trainers supplied narcotics and painkillers in order to keep the players on the field even though [p]layers [we]re not informed of the long-term health effects of taking controlled substances and prescription medications in the amounts given to them.” The complaint further claims that teams “maintain the return to play practice or policy by ensuring that players are not told of the health…

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Contributed byRebecca Dobbs Bush,March 21, 2017 Although bathroom use seems to be at the forefront with the media in regards to transgender issues; there are several other issues to consider, and the final rule on health plan nondiscrimination is no exception. Transgender related health services tend to deal with gender dysphoria, a medical condition where […]

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March 2017 by Meredith M. Causey | Meredith M. Causey served as a presenter for the USLAW EduNet Webinar:Websites, Mobile Applications and the ADA: Strategies to Avoid this Litigation Land Mine. While most business owners have a general understanding of the requirements of complying with the Americans with Disabilities Act for their physical locations, many... Read More The post Websites, Mobile Applications and the ADA: Strategies to Avoid this Litigation Land Mine appeared first on Quattlebaum, Grooms and Tull.

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The Supreme Court of Washington extended the duty "owed by medical professional[s] to a victim based on a special relationship between the mental health professional and the professional's patient" to situations involving mental health outpatients. 1  In July of 2010, a man with severe mental illness shot and killed his ex-wife and her son, before taking his own life.  One of the victim's sons sued the shooter's psychiatrist for medical negligence.  The issue on appeal was whether the Restatement (Second) of Torts 315 special relationship duty applies in the context of outpatient psychiatric treatment--the court held that it does.…

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In Allied Prop. & Cas. Ins. Co. v. Metro North Condo. Assn, No. 16-1868, 2017 U.S. App. LEXIS 4107 (7th Cir. Mar. 8, 2017), the Seventh Circuit had occasion to consider whether claims of faulty workmanship could constitute property damage … Continue reading →

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On March 17, 2017, Judge Nguyen of the Central District of California struck down the California Resale Royalty Act (CRRA) as violative of the Due Process Clause of the United States Constitution (Graham v. Sothebys). The Court stated that the CRRA is invalid because it regulates transactions that take place wholly outside of the State […] The post Central District of California: Decision in Graham v Sotheby’s. appeared first on Lewis Roca Rothgerber Christie - Intellectual Property Blog.

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March 20, 2017 by Mary-Tipton Thalheimer | Farmers in the United States experienced an economic boom in the 1970s fueled in large part by an increased demand for farm commodities coupled with high inflation and escalating farmland values. In the 1980s, however, the demand for commodities fell and the value of farmland quickly followed suit,... Read More The post Who Can Be A Chapter 12 Debtor appeared first on Quattlebaum, Grooms and Tull.

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On February 23, 2017, the IRS issued a memorandum to its employee plan auditors to provide guidelines for substantiating 401(k) plan safe harbor hardship distributions. Although directed to employee plan auditors for audit purposes, the memorandum provides guidance on the steps that plan administrators should take to substantiate safe harbor hardship distributions. In order to qualify as a hardship distribution, which is an exception to the prohibition against inservice distributions of 401(k) elective deferrals, a distribution must be on account of an "immediate and heavy financial need." Generally, whether a distribution meets this requirement is determined based on all relevant…

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One of the toughest challenges an aspiring franchisor may face is selling its first franchise. Who would take the risk of buying a franchise from a franchise company that has no franchisees For a few successful business owners, the idea of franchising may come from one or more customers who love the business concept and initiate the idea of buying a franchise even before the owner has taken the first step to prepare a franchise offering. But this rarely happens. Heres another suggestion: If the aspiring franchisor has a successful business unit (a store or a restaurant, for example) that…

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Contributed by Noah A. Frank, March 16, 2017 Nondiscrimination and privacy laws make recordkeeping a daunting task. Here are some compliance tips for todays highly legislated and regulated business world: KNOW THE FILE TYPES Not all files are the same. A Personnel file contains documents used to determine qualifications for employment (e.g., promotion, transfer, compensation), […]

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The Automatic Stay under U.S. Bankruptcy law is a powerful tool in the judicial system. By filing for bankruptcy, a person or entity immediately creates a cocoon of safety that is generally impenetrable without subjecting the offending party to punitive repercussions. In fact, even parties without knowledge of the bankruptcy filing may nevertheless face consequences from the presiding bankruptcy court for violating the Automatic Stay. Of course, this does not mean that parties can use a bankruptcy petition solely to protect themselves from outside pressures. The bankruptcy rules also allow a court to impose sanctions upon a party or its…

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An investiture ceremony for the newest member of the New Mexico Court of Appeals, Judge Henry “Hank” M. Bohnhoff, will be held on Monday, March 20, at 4:30 p.m. at the New Mexico Court of Appeals in Albuquerque. Of course, … Continue reading →

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Millennials the generation born between roughly 1980 and 2000 are showing up in large numbers to perform their civic duty. In fact, this year alone weve had several trials in which the post-hardship jury pool was nearly 50% or more Millennial after hardships. More importantly, in two very recent trials, a Millennial served […] The post A Millennial Could Be Your Next Jury Foreperson appeared first on Litigation Insights.

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Yesterday, the New Mexico Supreme Court issued its decision in the closely-watched case of Montao v. Frezza. The case arose out of medical treatment that a New Mexico resident, Kimberly Montao, received from a physician at Texas Tech University Hospital … Continue reading →

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The Department of Justice (" DOJ") recently published a report on its public website called "Evaluation of Corporate Compliance Programs."  The intention of the guidance is to provide transparency about the factors that the DOJ will consider in reviewing information from organizations involved in DOJ investigations. Organizations involved in self-disclosures may be asked for evidence of compliance programs and activities but are typically given the benefit of the doubt on the effectiveness of their programs.  In contrast, organizations under investigation face a more stringent review of compliance programs as described in this new guidance.  The "Principles of Federal Prosecution of…

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In Pekin Ins. Co. v. Centex Homes, 2017 IL App (1st) 153601, the Illinois Appellate Court Circuit had occasion to consider whether an insurer had an obligation to defend two putative additional insureds when its named insured was not a … Continue reading →

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Businesses are increasingly becoming the targets of sophisticated cyber-attacks, and professionals are no exception. When cyber-criminals breach a professional service firm, they not only may gain access to the firms corporate data, but also confidential information from the firms clients. Therefore, it is incumbent on all professionals to make data security a priority.

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Californias Fourth Appellate District recently issued an interesting, but fact-specific, opinion regarding an arbitrators award in Emerald Aero, LLC v. Kaplan (2/28/17) 2017 DJDAR 1819. InEmerald Aero, the plaintiff investors sued the defendant for breach of fiduciary duty in connection with a self-storage investment gone awry. Plaintiffs sought compensatory damages and declaratory relief, but did … Continue reading CA Court Vacates Arbitration Decision Awarding Punitive Damages →

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Is your marketing department planning on hiring someone to take aerial photography using a drone There used to be no way to protect your business against the unknown risks of commercial drone use in an unregulated environment. That is no longer the case. There are a number of key contractual provisions that you should now […]

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Michael N. Shannon and R. Ryan Younger successfully represented a national client in a protest of an anticipation to award a contract by the state of Arkansas to manage dental benefits provided to Arkansas Medicaid recipients starting in 2018. Four companies responded to the bid solicitation of the Department of Human Services. The protest was... Read More The post Protest of Bid for State Contract Successful appeared first on Quattlebaum, Grooms and Tull.

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Medicare hospitals and critical access hospitals ("CAH") are required to give notices to Medicare patients who remain in observation bed status for more than 24 hours, beginning March 8, 2017.  The Notice of Observation Treatment and Implication for Care Eligibility Act (NOTICE Act) was adopted in August 2015, establishing the Medicare Observation Notice (MOON) as a means of informing Medicare beneficiaries of the impact of being an observation patient as opposed to an inpatient. The principal differences to be explained to Medicare beneficiaries is the beneficiary responsibility for cost-sharing as a result of receiving observation services under Part B in…

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The coming innovation of autonomous vehicles (i.e. self-driving cars) has been covered pretty widely in the news over the past 18-24 months. Not long ago, the reality of autonomous vehicles was unknown to most Americans. But it is now creeping into the consciousness of more and more Americans. As the certainty of this new technology approaches, it is becoming clearer that it will cause massive disruption in an area of American life that is intensely regulated at every level. If you think about it, the manufacture, distribution, sale, ownership, and operation of cars are all regulated by federal, state and…

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In the early days of commercial drone usesay two years agomost local government agencies took a prescriptive approach to done operation in their jurisdictions. Many cities and even State agencies adopted blanket prohibitions against drone useor at least against drone use in specified areas. Now agencies more and more are asking themselves whether such broad […]

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As weve discussed elsewhere, it is important to use voir dire as a tool for identifying your worst jurors while hiding you best jurors, and eliciting bias and obtaining cause challenges should be the primary objective. In a previous blog, we offered techniques for cause sequencing, which is the series of questions that will lead […] The post How Do I Get Jurors to Reveal Their Biases appeared first on Litigation Insights.

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For just the second time in the past ten years, on December 14, 2016, the Federal Reserve increased its key interest rate by 0.25 percent, and it appears poised to do so several more times this year. Many are wondering if there are steps to be taken regarding their estate plans with respect to this and future increases in interest rates. Here are a few ways wealthy families can transfer money and take advantage of rates that are still historically low, while they last. Intrafamily loans.  When a parent loans money to his or her child, the tax code sets…

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When a custodial parent motions for a change in a minor child's domicile, the Court is required to "consider" the factors under MCL 722.31(4). "Consider[ation]" of the factors "does not require the court to specifically delineate its findings with regard to each factor. . . ." In re MKK, 286 Mich App 546, 556-557; 781 NW2d 132 (2009); Lee v Smith, 310 Mich App 507, 509; 871 NW2d 873 (2005).

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Kelly A. Williams, a shareholder at the Pittsburgh law firm ofPicadio Sneath Miller & Norton, P.C. In an apparent case of first impression, a divided three-judge panel of the Pennsylvania Superior Court recently held that an employer does not owe … Continue reading →

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This Friday, March 3, the Appellate Practice Section of the New Mexico State Bar is hosting a brown-bag (i.e. bring-your-own) lunch with Judge Stephen French of the New Mexico Court of Appeals. If you have any questions about practice before … Continue reading →

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In its recent decision in Siloam Springs Hotel v. Century Sur. Co., 2017 Okla. LEXIS 15 (Okl. Feb. 22, 2017), the Supreme Court of Oklahoma, on certified question from the United States District Court for the Western District of Oklahoma, … Continue reading →

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Headline-grabbing cyber hacks of email accounts belonging to celebrities, corporations, government officials and political campaigns are becoming the norm. Cybersecurity intended to guard against these acts brings to mind high tech computer hardware and software fixes delivered by knowledgeable IT professionals, who are expected to prevent network intrusions, stolen passwords, viruses, ransomware attacks and other hacks. But the most recent notable cyber hacks were not caused by high tech espionage. Rather, they were the product of low tech social engineering the use of deception to manipulate users into divulging confidential passwords and other personal information. This kind of hack…

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A front-end loader that has to travel about a quarter of a mile along a public road between work sites is exempt from the no-fault act’s registration and insurance requirements, said the Michigan Court of Appeals in Bergman v. Cotanche, No. 330438.  The vehicle was neither designed for nor used for the transport of people or property, and its travel over public roads was incidental to its main purpose—to plow snow.  The front-end loader thus fell under the statutory exemption for “special mobile equipment.”

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A recent American Wind Energy Association (AWEA) report indicates that in 2015, wind surpassed hydroelectricity in U.S. installed capacity. The nations hydroelectric generating facilities had long been the largest source of renewable energy capacity. Thanks to the extension of the production tax credit (PTC) for wind generation resources through 2019 (with a gradual phase down […] The post Wind Reaches “High Water Mark” appeared first on Lewis Roca Rothgerber Christie - Energy Blog.

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Talent attraction and retention: it’s a concern that has kept auto execs up at night ever since the industry surged back from its crisis years. And with traditional automakers and new industry entrants from Silicon Valley battling for the cream of the crop in the technology and engineering spaces, the race to attract and retain talent has never been more important for the industry.  

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The next time you are flying in or out of McCarran International Airport, Las Vegas, take a look at the valley that spreads just southeast of the city. Over there, just behind the mountain range that rims the edge of Las Vegas, lies El Dorado Solar Energy Zone the epicenter of Nevadas solar revolution […] The post Nevada’s Quiet Solar Revolution appeared first on Lewis Roca Rothgerber Christie - Energy Blog.

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YETI, a well-known manufacturer of high-quality coolers and insulated tumblers, recently settled several lawsuits against cooler competitor RTIC involving allegations of trade dress infringement, patent infringement and other claims stemming from RTICs manufacture and sale of look-alike coolers and insulated drinkware products. Among other rights asserted in the lawsuit, YETI relied on trade dress rights […] The post Trade Dress Another Weapon in Your Intellectual Property Arsenal appeared first on Lewis Roca Rothgerber Christie - Sports & Recreation Blog.

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As the world knows, Tenth Circuit Court of Appeals Judge Neil Gorsuch is being considered for the vacancy on the United States Supreme Court created by the death of Justice Antonin Scalia. Judge Gorsuch is a conservative jurist who has opined on federal agencies overstepping their mandates. That perspective may be very helpful to an over-regulated industry, such as long term care. In October 2016, the long term care industry saw the Centers for Medicare and Medicaid Services (CMS) squeeze in a re-write of its regulations just before a change in administration. Some of those new regulations can be considered…

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We published Part I of our Anthem Breach Retrospective in January 2017. Coincidentally, at around the same time several plaintiffs in one of the earliest filed cases arising out of the Anthem data breach voluntarily asked a judge in the Northern District of California to dismiss their lawsuits. The requests for dismissal came after Judge Cousins ordered select plaintiffs to comply with a discovery request by Anthem, requiring them to submit their computers to an independent forensic examiner to determine whether malware caused data or credentials to be stolen from the plaintiffs computers even before the breach of Anthems systems.…

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Judge Neil Gorsuch of the U.S. Court of Appeals for the 10th Circuit appears to be headed toward confirmation as the next Justice of the United States Supreme Court. If confirmed, how might his decisions in that role affect the American automotive industry Although every case depends on its own facts, three of his Tenth Circuit decisions provide some clues.

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California’s First District Court of Appeal issued an interesting new ruling that will affect contracts calling for another state’s laws to govern. In Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (Cal. Ct. App., Jan. 31, 2017, No. A138463) 2017 WL 429267, the plaintiffs borrowed $110 million to finance the purchase of a … Continue reading CA Court Refuses To Enforce NY Choice-Of-Law Clause And Jury Waiver →

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by:Robert Wagner, intellectual property attorney at the Pittsburgh law firm ofPicadio Sneath Miller & Norton, P.C.(Robert Wagner on G+) Inventors often use generalized language in patent claims when they are dealing with concepts that are not easy to quantify. This … Continue reading →

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According to the United States Census Bureau, Canada is the USAs second largest trading partner, only slightly behind China, with over $500 billion in two-way trade goods annually. The industrial economies of Canada and the USA are highly integrated, with manufacturing plants in each country sending millions of components back and forth over the boarder […]

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I had the opportunity to present in the Warner Norcross panel for OESA’s West Michigan Regional Supplier’s meeting in December. We spoke about how best to manage supply chain risk in light of certain industry trends heading into 2017. In our discussion, we addressed the increased frequency of many OEMs pursuing cost recovery actions against the supplier base for their elevated recall and warranty costs in 2016 as well as the OEMs increased reliance on suppliers for technological innovation and design. With tech collaboration only expected to increase, suppliers are expected to take on greater warranty exposure – and face more cost recovery actions…

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As new Drone laws and regulations start coming into focus, the market for commercial drone insurance is also becoming more standardized and readily available. This is not surprisingand in some respects mirrors the development of auto insurance 125 years ago (the first auto insurance policies, written in the 1890s, were actually adaptation of horse-drawn vehicle […]

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This article by Griff Palmer in the NY Times Business Day section examines three P3 projects in the US, and compares the promises with some of the disappointments. The article provides a good overview of the significant issues that must be considered in order for a P3 to be successful for all concerned. https://www.nytimes.com/2016/12/24/business/dealbook/private-equity-water.htmlemc=edit_ta_20161224&nlid=51116999&ref=cta&_r=0  … Continue Reading The post Are P3s the answer to our infrastructure needs NYT article raises concerns. appeared first on Infrastructure Law Blog.

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Federal and state laws weave a complicated web of rules governing business calls to customers. The FCC's and FTC's broad interpretations of the Telephone Consumer Protection Act ("TCPA"), along with technological advances in telephone services, have led to increased litigation arising from autodialed calls and texts to wireless phones. The TCPA forbids using an automatic telephone dialing system ("ATDS") to call or text wireless phones unless the called party has given prior written consent. The FCC has adopted a broad definition for ATDS, potentially including any VoIP system or equipment that is connected to a computer. In fact, the FCC's…

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The Defend Trade Secrets Act of 2016 ("DTSA") was signed into law and became effective May 11, 2016. The DTSA grants federal jurisdiction over private civil actions for the misappropriation of trade secrets and allows owners of trade secrets to choose either state courts under Nebraska common law or the Nebraska Trade Secrets Act, or in federal court under the DTSA. The DTSA is not retroactive and only applies to misappropriations that occur on or after May 11, 2016.  In general, in order to qualify as a "trade secret" the owner must have taken reasonable measures to keep such information…

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For H-1B nonimmigrant visas subject to the cap, April 1, 2016, is the first day on which the U.S. Citizenship and Immigration Services (USCIS) will accept H-1B cap-subject petitions for foreign national professionals in specialty occupations. As April 1, 2017 is a Saturday, the first day of filing will be the following Monday. Cap-subject H-1B visas become available each year on October 1 and filings with USCIS can be made no sooner than six months in advance. For the last four years, the H-1B cap has been reached within the first few days of filing and numerous petitions have…

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In November 2016, the US Citizenship and Immigration Service at long last published the revised version of the Form I-9, Employment Eligibility Verification. While employers were allowed to continue using the current Form I-9 (revision date of 03/08/2013) through January 21, 2017, on January 22, 2017, all employers must use the revised form. While there were no significant changes to the paper version of the Form, the electronic version was greatly enhanced with a number of new features. The instructions are now much longer (15 pages) and a new Handbook for Employers is expected at any time. Some of the…

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The United States District Court for the District of New Jersey closed out 2016 with a declaration that the Products and Workmanship exclusions found in a manufacturers Building and Personal Property policy is ambiguous. In National Manufacturing Company v. Citizens … Continue reading →

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In a detailed opinion published last week in Briseno v. Conagra Foods, Inc., No. 15-cv-55727 (9th Cir. Jan. 3, 2017), the Ninth Circuit held that Federal Rule of Civil Procedure 23 neither provides nor implies that demonstrating an administratively feasible way to identify class members is a prerequisite to class certification. The Court employed traditional … Continue reading Ninth Circuit Deepens Circuit Split and Rejects Ascertainability Requirement for Class Certification →

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The False Claims Act (FCA) allows a whistleblower, called a relator, to sue for false statements made in connection with requests for payment to the government. For long term care facilities (LTCs), this typically arises in the Medicare and Medicaid reimbursement context. The false claims could be submitting reimbursement requests for care not provided or care not required. A claim may also arise when valid reimbursement requests are made, but the facility certifies, when submitting the paperwork, that it has complied with all regulatory requirements and, in fact, it has not. Intent to defraud is not required, but the facility…

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For the third time in the past five years, a court has applied the DC anti-SLAPP statute to dismiss a defamation suit brought by a foreign official. First was the lawsuit filed by Yasser Abbas, the son of the Palestinian President, against Foreign Policy Group and one of its reporters, alleging that they defamed him by asking whether he was profiting from his fathers connections. After full briefing on the defendants anti-SLAPP special motion to dismiss, the DC federal district court held that the defendants satisfied their burden of showing that the suit arose from an act in furtherance of…

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In the December 5, 2016blog, we discussed what corporate representative depositions (CRD) are and why they are used. This blog addresses defense tactics and the conduct of CRDs. As previously noted, the party requesting the CRD is required to identify with reasonable particularity each of the subject areas for questioning. The corporation can object to the deposition notice when the subjects are so broad or vague that it is impossible to identify a witness. Language such as including, but not limited to can be struck from a deposition notice for noncompliance with the reasonable particularity requirement. Notices can also be…

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  A new set of requirements regarding contractor claims submitted on public works projects went in to effect on January 1, 2017. Public Contract Code section 9204 was adopted pursuant to AB 626, and will require most public agencies to revise their claims procedures. See the link below for a discussion of the new law.… Continue Reading The post New statute regarding public works claims appeared first on Infrastructure Law Blog.

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There have been numerous articles about thelong-awaited DC Court of Appeals opinion in Michael Manns libel suit against the National Review and Competitive Enterprise Institute, including in the Washington Post, Buzzfeed, Inside Higher Education, andNational Review. While there is much to analyze, consider and discuss in the 105-page opinion, as it relates to the DC anti-SLAPP statute, there are three specific takeaways. First, the DC Court of Appeals held that the denial of an anti-SLAPP special motion to dismiss is immediately appealable. As readers of this blog know, courts around the country have been wrestling with this issue. This part…

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Opposer, Fruit of the Loom, Inc., owns numerous trademark registrations for its FRUIT OF THE LOOM trademark for clothing, and specifically for underwear. Applicants filed a trademark application for BODY FRUIT for several clothing items, including undergarments. Opposer filed a Notice of Opposition and, not surprisingly, convinced the TTAB to sustain the opposition in […] The post FAME: Here today, not tomorrow. appeared first on Lewis Roca Rothgerber Christie - Fashion Blog.

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You know the drill take your child to a birthday party at a trampoline complex, rock climbing gym or parkour center, and sign a release before your child can participate. When your child is injured, is that release enforceable Are you (or your child) without recourse As with most things, it depends. Exculpatory contracts […] The post Liability Waivers for Minors appeared first on Lewis Roca Rothgerber Christie - Sports & Recreation Blog.

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Applicant, International Intimates Inc., filed for a trademark application for KISS KISS BY INTERNATIONAL INTIMATES INC. for clothing, including undergarments, lingerie and sleepwear. The application was rejected based on U.S. Trademark Registration No. 3434337 for the mark QISS QISS for clothing, including lingerie and sleepwear. The TTAB affirmed the refusal. The first argument Applicant lost […] The post Adding a House Mark to a secondary brand similar to someone else’s mark can either increase OR decrease likelihood of confusion depending upon the circumstances. appeared first on Lewis Roca Rothgerber Christie - Fashion Blog.

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Effective January 1, 2017, any franchisor that wants to offer SBA guaranteed financing for its franchisees will use a single, two-page form addendum. In a noticeissued just before Thanksgiving, the SBA announced that it will no longer review franchise agreements to determine whether affiliation exists between the franchisor and franchisee in any specific franchise system. Previously negotiated SBA addenda will no longer be accepted. SBA loans are only available to independent small businesses as defined in the SBA regulations. Some franchisors impose a level of control in the franchise agreements that the SBA considers to create affiliationbetween the franchisor and…

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After the DC Circuit issued its decision in Abbas v. Foreign Policy Group last year, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case (and disagreeing with every other federal appellate court to decide the issue of whether a state anti-SLAPP statute applies in federal court), Ive been watching to see if Abbas was an outlier, or the beginning of a trend. The next few months should go a long way towards giving us that answer. Heres why. Even before Abbas, several judges on the Ninth Circuit expressed their view that two of that…

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The U.S. Copyright Office ("Office") has adopted an amendment to regulation 37 CFR 201 to modernize their system for registering designated copyright agents for notifications of claimed copyright infringement. As of December 1, 2016, the Office will no longer accept paper registrations, and electronic registrations will last three years. The good news: the fee has been significantly reduced from $105 to $6, and the new system should be easier and quicker to use than the current paper system. Registration is important because it gives "service providers" a safe harbor against liability for copyright infringement claims. Who Should RegisterCourts have…

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What happens when adult children still living at home refuse to leave As the boomer generation ages and look to downsize, check this is a question that more and more parents might have to consider. While it may sound unlikely, prescription this scenario has the potential to cause some headaches for parents in the years […]

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If there is one word that everyone in the residential rental market hates, purchase it is bedbugs. Over the past few years bedbug outbreaks have become more common as the pests are notoriously difficult to fully exterminate. Bedbugs can live for months, even up to a year, without food and they can hide in small […]

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IntroductionSubrogation litigation is a very broad topic that encompasses many different practice areas. It is ultimately however a practice specialty unto itself. It includes innate complexities of subrogation law, but also requires the skills of a Plaintiffs attorney, and the knowledge of a specialist practicing in niche areas. These areas can range from fire litigation to workers compensation law. Complete mastery of subrogation requires the attorney to wear many hats, and requires the client seeking recoupment of their money to understand this dynamic. Subrogation BasicsAt its core, subrogation arises when a party who was obligated to a pay another party…

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In John Robert Sebo, etc. v. American Home Assurance Company, Inc., Supreme Court case number SC14-897, the Florida Supreme Court reversed a Second District Court opinion which found the efficient proximate cause doctrine applicable to cases involving multiple perils and … Continue reading →

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Vibram, a shoe company perhaps best known for its unique split-toe running shoe design, recently prevailed in a trademark and rights of publicity dispute against the heirs of late Ethiopian Olympic marathoner Abebe Bikila related to its use of the BIKILA name in connection with its toe shoe line without obtaining permission from the Bikila […] The post A Toe Shoe By Any Other Name appeared first on Lewis Roca Rothgerber Christie - Sports & Recreation Blog.

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Applicant applied for the following mark incorporating the stylized letters “DF”: for a variety of clothing items. The application was refused registration because of the existence of United States Trademark Registration No. 2827030 for the word mark DF, also for a variety of clothing items, with some overlap with the refused application. The TTAB affirmed […] The post Word mark registrations TRUMP stylized versions; and there really are 3 for 1 specials in trademark law for clothing. appeared first on Lewis Roca Rothgerber Christie - Fashion Blog.

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On November 22, 2016, a federal judge blocked the new federal overtime rule that would have made more workers eligible for overtime pay beginning December 1, 2016. U.S. District Judge Amos L. Mazzant, III of the Eastern District of Texas (an Obama judicial appointee) entered a nationwide preliminary injunction blocking the U.S. Department of Labor ("DOL") from implementing the rule, which focused primarily on increasing the salary levels needed for Executive, Administrative and Professional workers to be exempt. Specifically, the new rule more than doubled the required minimum salary level for employees exempt from overtime, from the current $455 per…

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From 1999 to 2008, a registered investment representative worked for Hantz Financial Services (Hantz). From 2000 to 2008, that same representative embezzled client funds. In March 2008, a client filed a FINRA arbitration demand against the representative and Hantz. The … Continue reading →

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Last year, we followed the story of ballot efforts on a local level to preclude GMO crops from being grown in certain counties in Hawaii. The ballot initiatives, which banned GMO crops within the borders of the counties, passed by narrow margins, but were immediately struck down in court after a challenge from various agricultural companies. Local organizations filed an appeal to the Ninth Circuit, seeking to overturn the District Court decision stating that the ballot initiatives were preempted by federal and state laws. The…

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If you purchased a desktop or laptop computer with a DVD or CD drive during the period of April 2003 to December 2008 then you may be eligible for an award under the Optical Disk Drive Antitrust settlement. This settlement is the second of two which have been entered into regarding a class action lawsuit accusing a group of electronics companies of engaging in a conspiracy to fix the prices of optical disk drives ("ODDs"). The first settlement was for direct purchasers of ODDs. This is for indirect purchasers of ODDs. An ODD is a device that allows data to…

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In May 2016, the Nebraska Department of Banking & Finance (the "Department") adopted a new rule (the "Rule") for private fund advisers, permitting certain fund advisers to be excluded from the definition of "investment adviser" under the Securities Act of Nebraska (the "Act"). Generally, under the Act, it is unlawful for any person to transact business in Nebraska as an "investment adviser" or "investment adviser representative" unless he or she is first registered under the Act. Investment adviser is broadly defined as "any person who for compensation engages in the business of advising others.as to the value of securities or…

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For Nevada brewers, the largest obstacle to profiting from their product is the frustrating inability to distribute it without the help of a commercial distributor. This frustration is compounded by the fact that it is counter-intuitive to the nature of brewing which often times can be a labor intensive and a grass-roots process. Many brewers would be more than willing to load up their trucks with kegs and sell the product themselves, but simply cannot in light of current Nevada law. Obtaining rights to a commercial distributor is not an easy answer either. It is a costly and often times…

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On March 30, 2016, Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia stripped MetLife of its designation as a nonbank systemically important financial institution (nonbank SIFI). She held that the designation was arbitrary and capricious as the Financial Stability Oversight Council (FSOC) failed to follow proper administrative procedures during the evaluation process. Just over a week later, FSOC walked down the hall of the U.S. Courthouse at 333 Constitution Avenue, NW and filed its

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Whats a franchise Franchise registration and disclosure laws define a franchise more broadly than people generally realize. A company may be franchising without knowing it. The license agreement may have been drafted, for example, by an attorney who has limited knowledge about franchise law. Hence the popular topic (at least among franchise lawyers) of the inadvertent or accidental franchisor. A business owner who has run a successful test of licensing its business may decide that the next step is to set up a franchise system, not realizing that the test was already a franchise sold in violation of one or…

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On October 20, 2016, the District of Columbia Court of Appeals abandoned the long-used Dyas/Frye test to govern the admissibility of expert testimony in favor of the standards embodied in Rule 702 of the Federal Rules of Evidence. The court issued its decision after the lower court permitted plaintiff expert opinions linking cell phone use to brain tumors under the then-existing Dyas/Frye standard. In the matter of Motorola Inc. v. Henry, plaintiffs in thirteen cases had sued numerous cell phone manufacturers, service providers…

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Ambiguity surrounding the term commencing led a court to deny an insurers motion seeking to dismiss an insureds property damage claim, despite the insureds inability to state when the property damage at issue first occurred. In a question of first impression, a federal district court in Illinois denied an insurers motion for summary judgment earlier this month, ruling that the term commencing during the policy period was ambiguous when applied to the circumstances of the case. Temperature Serv. Co. v.

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The Seventh Circuit recently affirmed a district court decision upholding payment under a life insurance policy purchased by a securities intermediary. The decision first addressed the common laws prohibition on wagering contracts, or stranger-originated life insurance, and the traditional remedy which invalidates any such policy of insurance. However, this case was subject to Wisconsin law, whose legislature places the risk on the insurer for issuing a policy to someone without an insurable interest by refusing to invalidate such contracts. Specifically,

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This month’s post will attempt to establish something that I’ve always vaguely known to be true, but never had occasion to fully research: the FCRA applies toconsumers who are trying to get personal credit, not credit for their business. Most courts treat this as a well-established point. See, e.g., Frydman v. Experian Info. Solutions, Inc., […]

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NancyBors, as administrator of the Estate of Maureen Milliken, brought this action against Imerys Talc America Inc. and Johnson and Johnson for claims in negligence for their design, development, manufacture, testing, packaging, promoting, marketing, distribution, labeling, and/or sale of Johnson and Johnson baby powder Milliken allegedly developed and died from ovarian cancer. Imerys moved to dismiss and argued that the court lacked jurisdiction or in the alternative for failure to state a claim. Specific to its argument, Imerys took the position that it had…

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Article courtesy of the Washington Legal Foundation, by John J. Jablonski The king is dead. Long live the king. European monarchies conveyed the immediate passage of sovereignty from a dead ruler to a new one with this proclamation. It works as well for the amendment of Federal Rules of Civil Procedure 26(b)(1) and 37(e), because in many ways an old governing rule on discovery passed away on December 1, 2015, when the amendments took effectbut the ghost of the old ruler still haunts both…

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The District of New Jersey just resolved twoFCRA cases that, in my view, combine all of the best (or worst) features of FCRA litigation: theyinvolve a confusing issue on a credit report; a threat of sanctions; ajudgethat didn’t get the facts sheneeded when sheneeded them; andparties and lawyers who had better things to do than […]

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Environmental groups recently filed a lawsuitin the United States District Court for the Southern District of Florida, Fort Myers Division, seeking to challenge the National Park Service, Department of the Interior, and others, with respect tothe recent approval of seismic testing. Seismic testing is utilized to identify oil and gas. Specifically, the plaintiffs allege that the testing threatens the Big Cypress national preserve: Big Cypress is an extraordinary and unique national treasure. It is an extension of the Everglades hydrologic system and provides…

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Last month’s post was about Bailey v. FNMA, and the question of whether a mortgage company can pull a credit report on a mortgage borrower, even after the borrower has discharged his mortgage in bankruptcy. Soon after I wrote it, I heard from a lawyer in California who pointed out an issue that I hadn’t […]

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Recently the North Carolina Court of Appeals in In re: Ballard (N.C. Ct. App. COA15-475, March 15, 2016) held that a foreclosing lender in North Carolina was not under any duty to bid the same amountat aresale of foreclosed propertyas it did at the first sale of the same property when the last ... (More)

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by:Robert Wagner, intellectual property attorney at the Pittsburgh law firm ofPicadio Sneath Miller & Norton, P.C.(Robert Wagner on G+) In The Medicines Co. v. Hospira, Inc. (Nos. 2014-1469 and 2014-1504), the Federal Circuit issued an en banc decision clarifying when … Continue reading →

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It is with great pride and pleasure that Thorndal Armstrong Delk Balkenbush & Eisinger attorneys and staff members recently collected 80 pounds/8 large boxes of various snacks, magazines, and personal hygiene items to be shipped to the firm’s long-time friend and vendor Sergeant Lee Fuller as a care package for him and his Nevada Army National Guard unit who were recently deployed to Kuwait. JoAnn Ozanic, an Administrative Assistant, who has worked closely with Lee over the course of her 26-year tenure with the firm, sought suggestions from Lee’s wife as to items most needed and appreciated by the troops.…

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On May 16, 2016, the U.S. Supreme Court issued its opinion in Husky International Electronic, Inc. v. Ritz. The opinion is a favorable development for creditors because it expands the types of fraudulent conduct that can prevent a debtor from discharging debts in bankruptcy. Specifically, the court... (More)

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ANALYSIS/OPINION: The Little Sisters of the Poor and the government have filed their final briefs in the longstanding tussle over the administrations contraception mandate. The briefs respond to a highly unusual order from theSupreme Court, issued days after the oral arguments, which asks the parties to consider again whether the government can improve access to The post The threadbare case against Little Sisters of the Poor appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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The lawyers are looking at it. That, in so many words, has been the response given by Secretary of State John Kerry and the White House every time they have been pressed on whether the State Department will call the Islamic States war on religious minorities genocide. Kerry faces a congressionally mandated deadline on Thursday The post Call ISIL’s religious war what it is: Genocide appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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Earlier today, the Consumer Financial Protection Bureau ("CFPB") held a field hearing in Albuquerque, New Mexico on mandatory arbitration clauses found in the terms and conditions of several consumer financial products, including credits cards, bank accounts and prepaid cards. The CFPB released its Notice of Proposed Rulemaking ("NPRM" or "Proposed Rule") on Arbitration clauses in advance of the Field Hearing, a copy of which can be found here. An initial review of the Proposed Rule reveals several provisions that will likely have a negative impact on the financial services industry. The Proposed Rule: Prohibits providers from using a pre-dispute arbitration…

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Christians across the Middle East are suffering and dying for their faith, and the United States government has called it a genocide. Here are four ways you, your family, and your church can help. [NOTE: This post originally appeared at the Mystery of Faith Blogand is reprinted here with permission. LRRC attorneys Martin Nussbaum and The post Genocide Against Christians (And How the Church Can Help) appeared first on Lewis Roca Rothgerber Christie - Religious Liberty Archive & Blog.

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In 2008, Congress passed legislation which extended the protection from foreclosure actions for active duty servicemembers up to 9 months after the end of the period of military service. In 2012, Congress extended that time to 12 months after the end of the military service. When the prior legisla... (More)

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With the burst of transient occupancy arrangements, vacation rentals and renter occupied units/homes in common interest communities in recent years, community associations continue to scramble to figure out how best to handle them in light of their unique governing documents and communities . Add to that the increase in investor owned homes and condominium units and the residual effect of the prior economic downturn, the ever changing mortgage restrictions regarding percentage of owner-occupied condominium units in condominium communities, the “hang-over” from the proliferation of foreclosures in the past 7-8 years, and the lobbying efforts of the short-term occupancy proponents, and…

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After considerable debate, Pennsylvania is one step closer to approving new regulations for hydraulic fracturing. Specifically, on April 21, the Independent Regulatory Review Commission (IRRC)held a lengthy hearing with respect to the new proposed regulations.The IRRCthen approved the new proposed regulations. Among other things, the new regulations (1) ban waste pits for unconventional gas drilling, (2) requires permits and water management plan for certain drillers, (3) requires vandal proofing of tanks, and (4) requires well site restoration within nine months of drilling…

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NYC Guidelines Strengthen Transgender Protections in Employment; NC Law Eliminates Local LGBT Protections Altogether. Confused, Anyone I dont envy employers these days. It aint easy staying on top of all of the federal, state, and local employment laws and regulations out there at the moment. And if youre an employer with employees in multiple states across our great country, forget about it. (On second thought, dont forget about it, just delegate figuring that mess out to your favorite employment lawyer.) Case-in-point, the many and varied laws out there regarding the protections afforded LGBT employees. In late December last year, the…

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As of July 1, 2015, the Virginia Condominium Act provides that no condominium association may impose an assessment or charge against a unit owner unless such charge or assessment (a) is expressly authorized by the Condominium Act (see particularly Va. Code Sec. 55-79.83) and/or by the condominium instruments for the community, (b) represents a fee for service provided, or (c) is a fee for a resale certificate, as provided for in the Condominium Act. Va. Code Section 55-79.42:1. The Common Interest Community Board has the authority to assess a monetary penalty and/or issue a cease and desist order against an…

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Does Title VII Cover Sexual Orientation Discrimination The EEOC is getting serious about sexual orientation discrimination: in the two lawsuits filed earlier this month, the EEOC arguesfor the first time in courtthat Title VIIs protections against gender bias extend to sexual orientation as well, protecting lesbian, gay and bisexual private employees. In two separate suitsone in the Western District of Pennsylvania, the other in the District of Marylandthe EEOC is accusing employers of discriminating against employees based on their sexual orientation, in violation of Title VII of the Civil Rights Act of 1964. These two lawsuits will likely lead to…

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In Havertown, Pennsylvania, Chipotle recently had some negative publicity and, for once, E. coli was not the culprit. Instead, James Kennedy, a 38-year-old war veteran, was terminated from Chipotle, after criticizing the company on Twitter and for circulating a petition in store regarding scheduled breaks. Kennedy sued, alleging that his termination violated the NLRA. One of Kennedys tweets contained a news article regarding hourly workers having to work on snow days while other workers were off. The tweet referenced Chipotles communications director, asking, Snow day for top performers Chris Arnold Another tweet involved a reply to a customer who tweeted…

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Thorndal Armstrong Delk Balkenbush & Eisinger is happy to announce it recently completed a denim drive for a charitable recycling program, . The drive collected more than 50 pairs of jeans that may have otherwise been sent to a landfill. Blue Jeans Go Green started in 2006 and strives to collects denim to recycle it into natural cotton fiber, an environmentally-friendly insulation. In addition to helping the environment, the program claims the up cycled insulation has about a 30% better sound absorption than traditional fiberglass insulation. To date Blue Jean Go Green states it has recycled more than 600 tons…

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Since our last postings on the subject of disclosure packets, the General Assembly has adopted several minor Code changes to clarify existing provisions: Delivery by Overnight Carrier  The Code section providing for cancellation of the purchase agreement within a certain time period after receipt of the resale certificate / disclosure packet previously failed to mention when the purchaser could cancel if the resale certificate / disclosure packet were delivered by overnight delivery service. For both property owners’ associations (“POAs”) and condominium associations, whether self-managed or professionally managed, if the resale certificate / disclosure packet is delivered by commercial overnight delivery…

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Earlier today a Nevada federal judge granted summary judgment in a case against a resort company that sought to hold it liable for alleged negligence of its subsidiary in Aruba. A Canadian citizen traveled to a resort on Aruba owned by a subsidiary. While there she tripped, fell and asserted an injury. Rather than suing the subsidiary in Aruba, the guest returned home, and then filed suit in Nevada against the subsidiary’s parent company. She claimed the parent and subsidiary were alter egos, meaning the parent could be liable for the subsidiary’s negligence. and represented the resort parent company. They…

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An Illinois appellate court has upheld a lower court’s denial of injunctive relief to certain landowners who sought to enjoin Illinois, via its regulatory body, from enforcing newly adopted hydraulic fracturing regulations in the state. Specifically, in Smith v. Dep’t of Resources, NO. 5-14-0583, 2015 Ill. App. LEXIS 536 (Ill. 5th Dist. App. July 10, 2015), Plaintiffs commenced an action against the Illinois Department of Resources, among others, seeking a preliminary injunction tostop the state from implementing the regulations recently adopted by the state.…

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Last month, the United States Supreme Court issued its ruling in Bank of America v. Caulkett a case deciding whether homeowners can avoid underwater second mortgages through Chapter 7 bankruptcy proceedings. The Court ultimately determined that a Chapter 7 debtor may not void a junior mortgage even when the debt owed on a senior mortgage exceeds the present value of the property. Section 506(d) of the Bankruptcy Code allows a debtor to void a lien on estate property to the extent it secures a claim against the debtor that is not "an allowed secured claim." In other words, …

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In another sign that the 2008 financial crisis is fading into memory, the Federal Deposit Insurance Corporation (FDIC) has proposed changes likely to reduce deposit insurance premiums for most community banks. The FDICs proposal would revise the factors used to determine deposit insurance assessments so that banks with less than $10 billion in assets would pay higher premiums if they hold riskier assets than comparable banks. These contemplated improvements would allow assessments to better differentiate riskier banks from safer banks and allocate the costs of maintaining a strong Deposit Insurance Fund (DIF) accordingly, FDIC Chairman Martin Gruenberg said in a…

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Consumers Insurance Company provided underinsured motorist (UIM) coverage to Bradford Charles. Charles was subsequently injured in a motor vehicle accident with Christina Ranum. Charles attorney subsequently made a UIM claim on the Consumers UIM policy. Initially, Consumers denied UIM coverage, but subsequently determined that there may be UIM coverage under its policy. After Consumers initial [...]

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On this blog weve explored the laws related to service animals and how the ADAs regulations extend their use far past traditional notions of seeing eye dogs. In Wisconsin (admit it, you assumed this blog post was going to have an Aussie connection), a woman is treading new territory by seeking legal recognition to use a kangaroo as a therapy animal. The woman, Diana Moyer, owns several kangaroos and also has a doctors note stating that one of the kangaroosJimmyis a therapy animal to assist her in dealing with cancer treatment and depression. In no way would we ever mock…

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When you think of Uber (or similar companies like Lyft and Sidecar) you probably think of a transportation company. You request a ride on the companys app and a driver (in his own vehicle) picks you up. The nature of the companys business is, however, the very thing at issue in a series of lawsuits brought against Uber under the ADA. In lawsuits filed in Arizona, California, and Texas, individuals and disability rights organizations have accused Uber of failing to comply with ADA requirements of offering accommodations for the disabled (including individuals who are visually and mobility impaired) in providing…

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On January 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced through the Federal Register a study that examined (1) whether Police Accident Reports provide sufficient, consistent, and reliable information to support crash weighting determinations, (2) whether a crash weighting determination process would offer an even stronger predictor of carrier crash risk than the [...]

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On December 30, 2014, Gov. Quinn signed SB 1342 into law as P.A. 98-1142 (720 ILCS 5/14-1 et seq.); the measure puts new eavesdropping restrictions into place after the Illinois Supreme Court threw out the previous eavesdropping law last March. As a result of the March court ruling, all Illinois residents had absolutely no expectation [...]

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The price of movie tickets could be going up soon. Under new proposed regulations issued by the Department of Justice, movie theaters with digital screens would be required to show films with options for closed captioning (for hearing impaired patrons) and audio descriptions (for visually impaired patrons). Movie theaters would not be required to create their own captioning or assistive aids. Rather, when a movie is available for distribution with closed captioning and audio description, the theater must purchase the version containing these accommodations. In some circumstances, a theater may show films without these accommodations if a compliant version is…

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Thank you to LegalHold Pro for its report on this decision. The original post can be seen here. The patent infringement and trademark case of Phillip M. Adams & Assoc. v. Dell Computer Corp.has been an ongoing saga with actions dating back to the 1990s. In recent years the case had been on hiatus, but that ended on March 18, 2013 when the Federal Circuit announced its ruling on four claims that had been challenged from the earlier District Court opinion. Of particular…

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Nondisclosure agreements (NDAs) are generally straightforward documents and follow a consistent format. People often pull a form off the internet, fill in the blanks and send it off to the other side. Likewise, recipients of NDAs often skim and sign them. In general, thats OK. That being said, there are often subtle differences among form NDAs. Use the simple acronym below to confirm that you have the right kind of NDA and that youre adequately covered by it: M – Is it mutual or does it only protect the information of one party If both parties are swapping information, make…

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The definition of possession, custody, or control under FRCP 34(a) will be construed broadly and a party is not required to have physical possession of the documents to be in control of them. Therefore, companies that use independent agencies should be conscious of the requirements and provisions they place in agency contracts because they can be inferred to give rise to discovery obligations. To read ELLBlog’s analysis of Haskins v. First American Title Insurance Co., Civil No. 10-5044 (D.N.J. 2012)click here.…

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If you have started a company that needs outside investors, then you have run into someone who offered to raise money for you. [ CONTINUE READING → ]

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PPMs (Private Placement Memos for the uninitiated) look pretty complicated. They’re usually thick documents full of run-on sentences, some charts and a few paragraphs in all caps. A client asked me to describe a PPM’s structure. I drew a picture of a simple sandwich. So why are PPMs frequently so complicated Because they’re often based on legal requirements that never apply to private placements. Federal regulations state that if equity (e.g. stock) is sold to people that are so poor they must be incapable of making rational financial decisions (or as they’re known in the securities world, “nonaccredited investors”), then…

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In a recent case filed in the US District Court for the Middle District of PA, a general contractor and subcontractor agreed to pay $1.2 million to settle claims after a worker fell at a construction site. In short, the...

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Jeffrey Ludwikowski on G+ Recently, the Pennsylvania Superior Court held that a trial court's rationale for concluding that the wife of the property owner and a co-party to a construction contract is an indispensable party to a mechanics' lien...

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Jones, Skelton & Hochuli, PLC is pleased to announce Phillip Stanfields selection to the American Board of Trial Advocates (ABOTA). Stanfield is the ninth lawyer from JSH to receive this distinction.Mr. Stanfield joined Jones, Skelton & Hochuli in 1987, and has been a Partner since 2003. His practice is almost exclusively devoted to the defense of transportation clients.The general purposes of the American Board of Trial Advocates is to foster improvement in the ethical and technical standards of practice in the field of advocacy to the end that individual litigants may receive more effective representation and the general public be…

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Fidelity and Deposit Company of Maryland v. Bondwriter Southwest (Ct. Appeals, Div. One, July 28, 2011)   Fidelity sued Bondwriter for breach of contract and negligence, after Bondwriter delivered unapproved bonds to a contractor. An agency agreement authorized Bondwriter to solicit applications for surety bonds on Fidelity's behalf. The agreement limited Bondwriter's authority to those transactions that Fidelity specifically authorized. In one transaction, Bondwriter mistakenly delivered a bond to a contractor before Fidelity had authorized the bond. When Bondwriter employees realized their mistake, they were unable to retrieve the original bond before the contractor made copies of the bond and…

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The Association of Defense Trial Attorneys (ADTA) has recently selected Don Myles for membership to their organization.Don Myles has been a Partner with Jones, Skelton & Hochuli since 1987, and concentrates his practice on insurance coverage, bad faith and professional liability. He is admitted to practice in all state and federal courts in Arizona as well as the Ninth and Tenth Circuit Courts of Appeal, and the United States Supreme Court.Myles is the past President of the Arizona Association of Defense Counsel (AADC) and the USLAW Network. He is currently Senior Vice President for the Federation of Defense and Corporate…

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Cohen v. Maricopa County (Ct. Appeals, Div. One, August 16, 2011)   A man was involuntarily held in a hospital because he was a danger to self due to depression and repeated drug overdose. After inpatient treatment was completed, he was discharged from the hospital to begin court-ordered outpatient treatment with ValueOptions, the company that contracts with the State. While undergoing outpatient treatment, the man was found passed out with the drug Soma in his pocket. The man was medically cleared at the scene, but taken to an urgent care facility run by Meta Services pursuant to a subcontract with…

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In a landmark decision, the California Supreme Court held today that a plaintiff cannot obtain medical expense damages based on his billed medical charges, because the plaintiff was not damaged in that amount.  Howell v. Hamilton Meats & Provisions, Inc. (Cal. Supreme Court, Aug. 18, 2011).  The Court held that the plaintiff could recover only the amount of medical expenses actually paid on her behalf.  The Court said:  We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount."   Plaintiff Rebecca Howell was seriously injured in…

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Mark D. Zukowski was recently accepted into the National Academy of Distinguished Neutrals (NADN).  NADN is a national association whose membership consists of mediators and arbitrators distinguished by their hands-on experience in the field of civil and commercial conflict resolution.  Mark is one of only 21 attorneys and former judges who have been recognized as Charter Members of the Arizona Chapter.  Parties can visit the Chapter website at www.NADN.org/arizona to schedule, at no administrative cost, mediations with Mark by having direct access to his availability calendar.

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Jeffrey Ludwikowski on G+ The Superior Court of Pennsylvania, in a "non-precedential" opinion, recently remanded a case to allow a construction consultant to pursue a claim for unjust enrichment against a homeowner, in spite of the lack of either...

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