How to Develop an Effective Law Firm SEO Action Plan for 2017 [WEBINAR]

What used to work in SEO just a few years ago won’t work today.12-must-do-action-steps.png Learn how to make this year your most profitable ever by getting consistent leads from SEO and positioning your firm as thought leaders.

Tuesday, March 14, 2017 – 3:00pm EST

Join John McDougall from McDougall Interactive and Nicole Minnis, Esq. from The National Law Review for a free 60-minute digital marketing webinar, where you will learn:

  • Step-by-step actions you should take in the next 12 months to substantially increase your revenues.
  • Powerful strategies that are based on the 10,000 keyword study from Searchmetrics, including the latest Google ranking factors including Content, Social Signals, Technical Factors, Backlinks, User Signals, and User Experience
  • Highlights from the Orbit Media study of 1,000 bloggers and what they do to stand out.

Some examples of cutting-edge topics we’ll be discussing (this is way more than just “add keywords” and “add more content”):

  • Why click-through-rate, time-on-site, and bounce rate are more important than ever
  • Why merely having keywords in your meta tags and copy is not nearly enough
  • How the length of your content can affect your search rankings
  • How video and podcasts can enhance your thought leadership and improve your mobile user experience and search rankings at the same time
  • Why links are still significant, especially deep links to inner pages
  • The extremely high correlation between social signals and ranking position
  • How your website load time can directly affect your search rankings, especially on mobile devices

Click here to register now.

This webinar will leave you with 12 must-do action steps for success, based on data from industry leaders, as well as a list of ridiculously great tools you can use to speed up your process and spy on competitors.

In today’s hyper-competitive legal SEO landscape, your either need to do SEO deeply or don’t waste time doing it at all.

 

Congress Begins to Evaluate Infrastructure Needs, Senate EPW to Hold Hearing this Week

Congress Capitol InfrastructureThe Trump Administration has provided few specifics on its trillion-dollar infrastructure proposal, and it has become increasingly clear that Congress will not act on a broad infrastructure bill in the first 100 days of the new administration. Recently, House Speaker Paul Ryan (R-WI) said the funding levels of any infrastructure proposal are unknown, and won’t be determined until Congress considers infrastructure funding in the greater context of the upcoming budget process this spring. To date, there is no consensus, even among Republicans, on how such infrastructure spending will be paid for.

However, Congress has begun to consider what issues and investments they will prioritize in an infrastructure bill by holding hearings in both the House and Senate. As we noted last week, the Senate Environment and Public Works (EPW) Committee will hold a hearing on “Oversight: Modernizing Our Nation’s Infrastructure” on Wednesday, February 8. The Senate EPW hearing follows last week’s kick-off hearing by the House Transportation and Infrastructure Committee on “Building a 21st Century Infrastructure for America.”

Recently, Senate Democrats have released their own $1 trillion infrastructure proposal. Their plan, “A Blueprint to Rebuild America’s Infrastructure,” would invest $1 trillion in infrastructure projects over ten years and create 15 million new jobs. The plan calls for enormous increases in Federal grant spending for a wide range of transportation and infrastructure projects, including schools, VA hospitals, and broadband service. For transportation, the plan pledges $210 billion on roads and bridges; $110 billion on water and sewer systems; $180 billion on rail and bus systems; $200 billion for a Vital Infrastructure Program (VIP) for mega-projects; $65 billion for ports, airports, and waterways; and $10 billion for new innovative financing tools such as an infrastructure bank.

Sen. Deb Fischer (R-NE) also recently introduced an infrastructure funding proposal, which would divert a total of $21.4 billion in revenues from Customs and Border Patrol fees to the Highway Trust Fund over FYs 2020-2024. Members of the House, including Rep. John Delaney (D-MD), are also advocating for their own infrastructure proposals.

This Week’s Hearings:

  • On Tuesday, February 7, the House Oversight and Government Reform Committee has scheduled a hearing titled “Accomplishing Postal Reform in the 115th Congress – H.R. 756, The Postal Service Reform Act of 2017.” The witnesses will be announced.

  • On Wednesday, February 8, the Senate Commerce, Science, and Transportation Committee has scheduled a hearing titled “A Look Ahead: Inspector General Recommendations for Improving Federal Agencies.” The witnesses will be:

    • The Honorable Peggy E. Gustafson, Inspector General, U.S. Department of Commerce;

    • The Honorable John Roth, Inspector General, U.S. Department of Homeland Security;

    • The Honorable Calvin L. Scovel III, Inspector General, U.S. Department of Transportation; and

    • Allison C. Lerner, Inspector General, National Science Foundation.

  • On Wednesday, February 8, the Senate Environment and Public Works Committee has scheduled a hearing titled “Oversight: Modernizing our Nation’s Infrastructure.” The witnesses will be:

    • William “Bill” T. Panos, Director, Wyoming Department of Transportation

    • Michael McNulty, General Manager, Putnam Public Service District, West Virginia

    • Cindy R. Bobbitt, Commissioner, Grant County, Oklahoma

    • Anthony P. Pratt, Administrator, President

    • Delaware Department of Natural Resources & Environmental Control, American Shore & Beach Preservation Association

    • Shailen P. Bhatt, Executive Director, Colorado Department of Transportation

© Copyright 2017 Squire Patton Boggs (US) LLP

You’ve Got Mail … if You’re an Employer: Seventh Circuit Rules Employees Are Not Entitled to Same Visa Revocation Notice

visa revocationOn August 3, 2016, the U. S. Court of Appeals for the Seventh Circuit ruled that only employers are to be provided notice and receive information on decisions on visa petitions issued by United States Citizenship and Immigration Services (USCIS), and reversed in part a lower court ruling that had stopped short of requiring notice to the successor employer. This case has important implications for employers that file employment-based immigration petitions. Musunuru v. Lynch, No. 15-1577 (August 3, 2016).

Srinivasa Musunuru, an Indian national, was employed by Vision Systems Group (VSG) as a programmer analyst in H-1B status. VSG started a green card petition for Musunuru, in which he was assigned a priority date of February 17, 2004, under the employment-based third preference category (the EB-3 category). A priority date controls when an applicant can file an I-485 Adjustment of Status application, the last step in the green card process. Musunuru was eventually able to file his I-485 application in 2007. He subsequently changed employers and was hired by Crescent Solutions in a similar position, which allowed him to “port” or transfer his green card process to his second employer without affecting his original priority date of February 17, 2004, or his pending I-485 application.

Crescent filed another labor certification application and I-140 petition for Musunuru, both of which were approved in the EB-2 category (the employment-based second preference category). USCIS eventually issued an amended I-140 approval notice, reflecting a later priority date of January 28, 2011 (i.e., the date Crescent filed its labor certification application on behalf of Musunuru). This new priority date impacted the ability of his pending green card application to be adjudicated immediately and added several more years of wait time.

Unknown to Musunuru, USCIS had revoked the I-140 petition that VSG had filed on his behalf (and which had established his original priority date of February 2004). USCIS took this action because VSG’s owners pled guilty to fraud in connection with a separate and unrelated H-1B nonimmigrant petition that the company had also filed. As a result, USCIS presumed all visas that VSG filed were fraudulent, including Musunuru’s I-140 petition. USCIS sent notice of its intent to revoke this petition to VSG only. It did not send notice to Musunuru. However, VSG had gone out of business and did not respond to the notice, and Musunuru had already been employed at Crescent for some time so he did not become aware of the revocation.

Both Musunuru and Crescent learned that the underlying VSG I-140 had been revoked only after USCIS sent Crescent a notice of intent to revoke Crescent’s I-140 petition filed on behalf of Musunuru. The notice explained that because of VSG’s fraud charges, Musunuru’s work experience at VSG was not considered legitimate and therefore the approval of Crescent’s I-140 petition, which relied on that work experience, should also be revoked. Crescent and Musunuru, however, were able to overcome these assertions in their response to USCIS, which did not revoke Crescent’s I-140 petition but maintained the January 28, 2011 priority date.

Musunuru filed a lawsuit in district court arguing that USCIS should have sent him the notice about the revocation of VSG’s I-140 petition and an opportunity to respond to that notice. The district court, however, found that Musunuru was not required to receive notice based on existing “porting” regulations, noting that it is the “petitioner” or employer that must receive notice and that, as the employee, Musunuru would not be given an opportunity to challenge the revocation (but the employer is).

In contrast, the circuit court found that that the new employer was the “de facto petitioner” and that Congress, through the port provisions, intended for the successor employer to adopt the ported I-140 petition filed by the beneficiary’s previous employer. Therefore, the court stated USCIS should have given Crescent notice of intent to revoke the approval of the prior employer’s I-140 petition, and Crescent should have been given the opportunity to respond to the change in the priority date. The court, however, agreed with USCIS and the lower court regarding Musunuru’s rights, stating that the employee did not have a right to receive any notice.

The Seventh Circuit recently indicated that it would not rehear its decision (issued in August of 2016) and that Musunuru’s new employer should be given an opportunity to respond to the change in priority dates.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Super Bowl 51: What to Do When Fantasy is Over and Football Fever Becomes Work Reality?

Super bowl 51Super Bowl LI is just around the corner, and many of your employees probably already have football fever. According to a January 2016 study conducted by the Workforce Institute at Kronos, 77 percent of American workers planned to watch Super Bowl 50. So whether they are cheering for the Patriot’s ninth Super Bowl appearance, the halftime show, or the much-talked-about commercials, it’s a safe bet that most of your employees will tune in to at least part of the game day programming. Here are some issues employers may want to consider as they brace themselves for game day fumbles:

1. The fantasy football pool.

Gambling is still illegal in most jurisdictions—even at work and even when it’s just over football. Federal law and most state laws prohibit gambling: the Professional and Amateur Sports Protection Act of 1992 prohibits gambling on sports in most states, and the Interstate Wire Act of 1961 has been interpreted to prohibit online betting. In some states, gambling is a misdemeanor. However, in others, while gambling is generally prohibited, gambling at work may be considered an exception under certain circumstances. Nevertheless, it’s expected that millions of workers will participate in office pools related to the Super Bowl.

Employers may want to take this opportunity to clearly delineate their policies and communicate these policies to employees. To eliminate any confusion, employers may want to relay the state law on gambling to employees and define exactly which acts are covered under the law.

2. A widespread case of the Mondays.

If your Super Bowl party goes as it should, you and your guests might have a little more Monday angst than usual. The 2016 Workforce Institute study suggested that one in 10 workers (approximately 16.5 million U.S. employees) were expected to miss work on the Monday after Super Bowl 50 and that almost 10.5 million employees had requested that Monday off.

Is there anything employers can do to curb employees’ absences on Monday? Two initial considerations when managing employee sick time requests are: (1) whether the employee has sick time available; and (2) whether the employer’s sick time policies are enforced uniformly and all employees are treated equally in terms of their requests.

Employers might be able to decrease the likelihood of employees failing to come in on Monday and create morale-building opportunities by taking some proactive steps. For example, an employer could plan a celebratory work event on the Monday after Super Bowl Sunday. Employees will be itching to talk about the ins and outs of the game and the hot new commercials anyway—they may as well do it around a football-shaped cake while wearing their favorite team’s jersey.

3. Online instant replays.

Employees are not just watching games online; they are also streaming them on social media platforms. Last year, Twitter started carrying live streams of professional football games both on its site and on its app. In 2015, Facebook launched a Super Bowl news feed consisting of a live feed, photos and videos from media outlets, posts from users’ “friends,” live scores, and other ways to interact within the Facebook community. As employees watch games online and on apps, in addition to using the company’s email to communicate, companies might experience performance degradation in their computer networks.

This is a good time to remind employees of your company’s Internet use policies as well as any policy on the appropriate use of company-issued devices such as smartphones and tablets. Whichever course employers take, they should be sure to enforce their technology policies uniformly.

With a little foresight and planning—and a few carefully implemented policies—employers can avoid the blitz when it comes to the Super Bowl and workplace productivity.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Right to Disconnect: New Right for French Employees?

right to disconnect FranceA new law, called El Khomri law, passed on August 8th, 2016 in France providing a right to disconnect for employees.

Such right is entered into force on January 1st, 2017

According to the law, it belongs to the employers and the unions to negotiate this new right to determine its modalities of application and of control. Such negotiation should take place in companies having at least 50 employees and should provide for the implementation of mechanisms of regulation regarding the use of the new technologies in order to ensure the compliance with rest times and holidays and the familial and personal life of the employees.

Should no agreement be reached with the unions defining the methods of implementation of the right to disconnect, the employer shall unilaterally elaborate, after having consulted the work’s council committee, a policy which shall need to provide for the training actions and sensitization to the use of digital tools.

However, the idea to enable an employee to disconnect completely outside of his working hours is not new in France.  In 2004, the French Supreme Court had already judged that an employee could not be dismissed for serious misconduct due to the fact that he had not responded to professional solicitations during his lunch break (Cass. Soc. February 17, 2004 n°01-45889).

Furthermore, several collective bargaining agreements applicable in different sectors of industry had already provided for a right to disconnect (e.g. Syntec).

If the title of this right seems simple, its exact nature questions.

Indeed, no legal definition of what is exactly the right to disconnect is given.

The right is generally described as a right for the employee to not be connected to a digital professional tool (email, smartphone…) during off-duty and vacation time.  However, it is not easy to impose the right to disconnect in a professional environment in which the “BYOD” concept has experienced a takeoff without precedent and which therefore has the consequence of dimming a little more the barrier between professional and private life.

However, by sending back to the collective negotiation, the El Khomri law leaves it to unions and employers to guarantee the efficiency of such a right in a manner that matches with the way the company operates.  This relative flexibility obliges them however to be imaginative and to find devices adapted to the nature of the functions occupied by the employees to the variety of the means of communication used, considering evidently the needs of each company.

As such, the right to disconnect is not uniform and can materialize itself in several ways:

  • by a reinforced information of the employees on the use of digital tools (e.g. avoiding to reply to all recipients or to send emails during the week-end or holidays),

  • by the implementation of training actions or sensitization to new technologies (e.g. reminding the employees that they should not send emails after 9.00 pm or the absence of obligation of the recipient to answer emails outside of regular hours),

  • more radically, by automatically redirecting the emails of the employees who are out of the office to an appropriate available employee or the interruption of the professional mailbox during evenings and weekends, or even during holidays.

The new law does not provide for any sanction in case of noncompliance, however, companies should take into consideration that employers failing to implement it will likely be sanctioned by judges on the basis of the necessity to preserve the health and safety of the employees at the workplace as well as the necessity to comply with working time regulations.

© 2017 Proskauer Rose LLP.

President Trump Establishes Regulatory Budgets by Executive Order

law books, regulatory budgetAmid  all of the controversy surrounding President Trump’s Executive Order suspending immigration from seven countries, and his nomination of Judge Neil Gorsuch to the Supreme Court, another executive order that may be at least as significant in the long run to reining in the administrative state has not received much attention.  The Executive Order on “Reducing Regulation and Controlling Regulatory Costs,” issued on January 30 without much fanfare, did three things: (1) required every agency promulgating any new regulation to get rid of two existing regulations; (2) required that the projected cost to the economy of the regulations being eliminated must be at least as great as the costs of the new one, as computed under standard Office of Management and Budget (OMB) guidelines, and (3) authorized OMB to impose a regulatory budget on each agency.

The first point, sometimes called “one in, two out,” has garnered some media attention, but in the long run, the other two provisions limiting regulatory costs may be at least as significant, particularly for the Environmental Protection Agency, which has historically imposed about half the costs of federal government regulation on the economy.  But this Executive Order also takes us into new territory and raises a host of legal questions.

The idea of a “regulatory budget” to constrain the costs government imposes on the economy  has been discussed since the 1970’s.  The basic idea is to adopt Madison’s constitutional concept of “balancing ambition with ambition” to regulate the regulators.  However, in the past, establishing a regulatory budget has generally been thought to require legislation.  Although proposed on numerous occasions, statutory authority to impose regulatory budgets has never been enacted.  It remains to be seen whether the courts will allow a binding regulatory budget to be imposed on agencies by the White House acting alone.

The Administrative Procedure Act specifically creates a cause of action to “compel agency action unlawfully withheld” as well as a right to petition for new rules.  How will the courts react when agencies begin to turn down petitions for new rules because there is no room for them in the agency’s regulatory budget, or because the agency judges them to be less important than existing rules that would have to be eliminated to pay for the new regulations?

In Motor Vehicle Manufacturers Ass’n. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), the Supreme Court rejected an attempt by the Reagan Administration unilaterally to rescind an existing rule requiring automatic seat belts.  That precedent appears to require not only notice and comment but also a rational basis in the record that will survive judicial review in order to eliminate a legislative rule previously promulgated through notice and comment procedures.  What weight will the courts give to agency proposals to eliminate existing rules because they are required to do so in order to promulgate new ones under the Trump Executive Order?  And what about emergency rules or rules required by statute?  Do those also require elimination of two existing regulations?

Even assuming that the courts do uphold President Trump’s authority to impose the requirements discussed above on agencies and departments “in” the Executive Branch, what about the “independent” agencies, such as the Federal Energy Regulatory Commission (FERC), the Consumer Product Safety Commission (CPSC) or the Federal Trade Commission (FTC)?   These agencies often consist of multi-member commissions, sometimes with staggered terms and members of different political parties and a statutory prohibition on firing except for good cause.  On its face, the Executive Order does not exempt them, but the President’s power to direct them is unclear.  In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court held that President Roosevelt could not fire the Chairman of the FTC for policy differences.  More recently, the Obama Administration issued an Executive Order stating that independent agencies “should” comply with prior executive directives regarding public participation, scientific integrity in the rule making process, and retrospective analyses.  A number of independent agencies followed President Obama’s Order, but have been careful to characterize it as “ask[ing]” or “request[ing],” not mandating, agency action.

There are also a host of implementation questions that will presumably have to be answered by the OMB guidance implementing the recent Executive Order.  Many regulations, particularly in the environmental area, require large initial capital costs, but much lower costs for on-going operation and maintenance expenses; for example, when installing new pollution control equipment.  In assessing whether the costs of the eliminated regulations balances the costs of the new regulations, may the agency take into account the historic costs that have already been incurred (what economists call “sunk costs”), or only the current on-going costs that would be eliminated if those regulations were rescinded (what economists call “avoided costs”)?

More broadly, this Executive Order, as well as prior executive actions relating to the Keystone and Dakota Access Pipelines and Infrastructure Permitting, provides insight into the strategy that the Trump Administration appears to intend to use to control the so-called “Administrative State.”  For years, Presidents have struggled to impose policy direction and control on the actions of agency bureaucrats whom they generally cannot fire due to civil service protections. Past approaches have included the creation of the Senior Executive Service who are subject to dismissal, the OIRA review process for new rules, and the White House “czars” created by the Obama Administration.  It is becoming increasingly clear that the Trump Administration intends to try to manage the agencies by Executive Order, a strategy that some legal scholars have questioned as constitutionally dubious if the President directs particular actions as opposed to establishing general principles.

© 2017 Covington & Burling LLP

USDA Releases Report On Lifecycle Greenhouse Gas Balance Of Ethanol

greenhouse gasOn January 12, 2017, USDA released a report on the lifecycle greenhouse gas (GHG) balance of corn ethanol, titled “A Life-Cycle Analysis of the Greenhouse Gas Emissions of Corn-Based Ethanol.”  The study reviewed industry and farm sector performance over the past decade and found that in the United States corn-based ethanol generates 43 percent less GHG emissions than gasoline.  Compared to previous studies, the lifecycle GHG benefits were greater due to improvements in corn production efficiency, conservation practices, and ethanol production technologies.  The report also presented two projected GHG emissions profiles for corn ethanol in 2022, with one assuming a continuation of observable trends and the other analyzing additional improvements that could further reduce the GHG emissions.

©2017 Bergeson & Campbell, P.C.

Supreme Court Nominee Has Put “Reasonable” into Reasonable Accommodation Obligations

Supreme Court nominee Judge GorsuchIn case your news and twitter accounts are down, and you otherwise have not heard the news…   President Trump has nominated Judge Gorsuch from the U.S. Court of Appeals for the Tenth Circuit to fill Justice Antonin Scalia’s vacant Supreme Court seat.  There are surely countless articles about his nomination hitting the airwaves even as I type this, but for employers who struggle with leave management issues, a quick review of the Hwang v. Kansas State University decision, authored by Judge Gorsuch, may provide employers with hope that leave management law could move in the right direction.  In Hwang, the Tenth Circuit determined that a more than a six month leave of absence was an unreasonable accommodation.  Some of the more memorable quotes from that decision include:

“Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”

*  *  *  *

“It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.”

*  *  *  *

“Still, it’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”

Although Hwang involved the Rehabilitation Act, his opinion addressed head on the EEOC’s views on ADA reasonable accommodations in the leave of absence context.  And with respect to “inflexible” leave policies that the EEOC has been pushing against in recent years, Judge Gorsuch said:

“Neither is there anything inherently discriminatory in the fact the University’s six-month leave policy is ‘inflexible,’ as Ms. Hwang would have us hold. To the contrary, in at least one way an inflexible leave policy can serve to protect rather than threaten the rights of the disabled — by ensuring  disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”

A nomination certainly doesn’t guarantee confirmation and, even if confirmed, Judge Gorsuch’s selection would not change ADA law overnight. However, Judge Gorsuch’s opinion in Hwang is arguably the most vigorous challenge to the EEOC’s view of leave as a reasonable accommodation and very well may be the proverbial light at the end of the tunnel for employers.

Jackson Lewis P.C. © 2017

Trade Secret Preemption: Possible Defense To Trade Secrets Claim?

trade secretTwo recent decisions by the Fifth Circuit Court of Appeals clarify the intersection between federal copyright law and state trade secret law. In GlobeRanger Corp. v. Software AG United States of America, Inc., 836 F.3d 477 (5th Cir. Sep. 7, 2016), the Fifth Circuit rejected an appeal in which the defendant argued that a plaintiff’s trade secret misappropriation claim was preempted by federal copyright law. Just four months later, in Ultraflo Corp. v. Pelican Tank Parts, Inc., No. 15-20084, 2017 U.S. App. LEXIS 509 (5th Cir. Jan. 11, 2017), the Fifth Circuit upheld a district court’s dismissal of a plaintiff’s state law claim of unfair competition by misappropriation, holding that the state law claim was preempted by federal copyright law.   What accounts for these seemingly inconsistent conclusions over two strikingly similar state law claims? The difference lies in the elements needed to establish each state law claim.

In its September 2016 GlobeRanger decision, the Fifth Circuit heard an appeal after a jury awarded plaintiff GlobeRanger a $15 million jury verdict following a trial in the United States District Court for the Northern District of Texas on its state trade secret misappropriation claim. The central allegation in that case was that competitor Software AG misappropriated GlobeRanger’s radio frequency identification (RFID) technology – most commonly used in electronic readers in tollbooths, like EZ-Pass – after it had taken over Software AG’s subcontract with the U.S. Navy to implement the technology.  Following the verdict, Software AG appealed, contending that federal copyright law preempted GlobeRanger’s state trade secret claim.

The Fifth Circuit explained in GlobeRanger that the different spheres of intellectual property can sometimes overlap and, as the software code at issue illustrates, the same intellectual property can be protectable under copyright laws or subject to trade secret protection.  If the creator of the IP seeks copyright protection, it obtains the exclusive right to make copies of the work for decades but must publicly register the work before enforcing that right through a lawsuit.  The supremacy of federal copyright law means, however, that state protection of copyrightable subject matter must sometimes defer to its federal counterpart.  As the Fifth Circuit explained, two conditions must be met in order for the Copyright Act to preempt a state law claim. First, “the work in which the right is asserted must come within the subject matter of copyright.” Second, “the right that the author seeks to protect . . . [is] equivalent to any of the exclusive rights within the general scope of copyright.”  This inquiry asks whether the state law is protecting the same rights that the Copyright Act seeks to vindicate or against other types of interference. “If state law offers the same protection, then the state law claim is preempted and must be dismissed.”

Applying this articulated two-part test to the facts in GlobeRanger, the Fifth Circuit found that the first condition was satisfied (because Software AG conceded its software code was copyrightable) but the second condition was not.  This is because while federal copyright law and Texas trade secret misappropriation both involve copying, trade secret misappropriation involves an extra element:  the state law prevents any improper acquisition through a breach of a confidential relationship or improper means.  Accordingly, the Fifth Circuit ruled that GlobeRanger’s trade secret claim was not preempted because it was required to establish an “extra element” in order to establish a copyright violation:  that its “protected information was taken via improper means or breach of a confidential relationship.”  Significantly, the Fifth Circuit noted, ten other circuit courts that have considered this issue agreed that trade secret misappropriation claims are not preempted by the Copyright Act for this same reason.

Revisiting the issue of preemption just four months later in Ultraflo, the Fifth Circuit reached the opposite result when faced with a different state law cause of action.  In this case, Ultraflo asserted an unfair competition by misappropriation claim under Texas law alleging that competitor Pelican stole its drawings showing how to design butterfly valves used in the transportation industry and then used them to make duplicate valves.  The United States District Court for the Southern District of Texas dismissed Ultraflo’s Texas state law claim, finding that the general scope of federal copyright law preempts the claim.  Ultraflo appealed, challenging the ruling.  As it did in GlobeRanger, the Fifth Circuit utilized the two-part test to determine whether the Copyright Act preempted the state law cause of action. First, it found that Ultraflo’s design drawings were “undoubtedly” within the scope of federal copyright, as were the valve designs themselves even though they were not actually protectable under the Copyright Act. Second, unlike in GlobeRanger, the Fifth Circuit found that the second condition was met because Texas’s unfair competition by misappropriation cause of action does not afford protection materially different from federal copyright law.  The elements of Texas’s unfair competition by misappropriation claim are: (1) the creation by a plaintiff of a product through extensive time, labor, skill, and money; (2) the use of that product by defendant in competition with plaintiff; and (3) commercial damage to the plaintiff. In other words, unlike the traditional trade secret misappropriation claim asserted in GlobeRanger, the unfair competition by misappropriation claim asserted in Ultraflo lacks the “extra element” necessary to bring it out of the general scope of copyright.  Therefore, the claim was preempted.

These two Fifth Circuit decisions demonstrate that parties should pay attention to the possible application of copyright preemption to claims involving alleged theft of information or unfair competition. While most such claims will not be preempted, Ultraflo illustrates that some will be.

©2017 Epstein Becker & Green, P.C. All rights reserved.

Betsy DeVos Moves toward Confirmation despite Opposition

Betsy DeVosDepartment of Education Announces New Staff and Open Title IX Investigations

Opposition to Betsy DeVos Builds

Joining other professional education associations, the National Association of Secondary School Principals announced in a letter to the Senate HELP Committee that it opposes the confirmation of Betsy DeVos as Secretary of Education.

Senate offices have reported tens of thousands of calls and letters encouraging a no vote on Mrs. DeVos’s confirmation. Sens. Bob Casey (D-PA), Bernie Sanders (I-VT), Kamala Harris (D-CA), Al Franken (D-MN), Chris Murphy (D-CT), and Tim Kaine (D-VA) have indicated they will vote against confirming Mrs. DeVos to serve as Secretary of Education. However, she only needs 51 votes to be confirmed and Republicans, currently holding 52 seats in the Senate, have given their strong support for Mrs. DeVos. A HELP Committee vote to move forward with her confirmation process is scheduled for Tuesday, January 31.

This Week’s Hearings:

  •  On Tuesday, January 31, the Senate Committee on Health, Education, Labor, and Pensions will hold a meeting to vote on committee rules and subcommittee membership during the 115th Congress and to vote on the nomination of Betsy DeVos to be Education secretary.

  • On Wednesday, February 1, the House Committee on Education and the Workforce will hold a hearing titled, “Rescuing Americans from the Failed Health Care Law and Advancing Patient-Centered Solutions.”

  • On Thursday, February 2, the House Committee on Education and the Workforce Subcommittee on Early Childhood, Elementary, and Secondary Education will hold a hearing titled, “Helping Students Succeed through the Power of School Choice.”

 Regulatory Updates

 Department of Education Delayed Title IX Investigations List

This week, the Department of Education delayed weekly updated list of colleges under investigation for mishandling sexual assault cases. Under President Obama, the department released the list at the beginning of each week and the delay under the new Trump Administration has worried advocates that there may be less transparency in the new department. Sen. Patty Murray (D-WA), ranking member of the Senate HELP Committee, criticized the department for not releasing the list. The list was ultimately released late on Thursday, January 26 and included two new investigations. Department officials said the delay was a “misunderstanding” due to transition between administrations, but advocates in and out of Congress have indicated they will keep a close eye on the department to ensure all sexual assault cases are handled properly.

Trump Administration Brings on New Education Staff

Josh Venable, top candidate for chief of staff at the Department of Education, has been officially brought over from the transition team. Former Bush and Obama administration staffer Jim Manning, as well as Stanley Buchesky, former venture capital managing partner, were also sworn in last Friday, while the White House works to finalize their job responsibilities. Most surprisingly included in the new education hires is Jason Botel, now a senior White House adviser for education, who donated to former President Obama’s campaign in 2008 and has served in Teach for America, founded KIPP Baltimore, and was most recently executive director of MarylandCAN.

Other staff include the following:

  • Derrick Bolen;

  • Debbie Cox-Roush;

  • Kevin Eck;

  • Holly Ham;

  • Ron Holden;

  • Amy Jones;

  • Andrew Kossack;

  • Cody J. Reynolds;

  • Patrick Shaheen;

  • Eric Ventimiglia;

  • Beatriz Ramos;

  • Jerry Ward; and

  • Patrick Young

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