Author: National Law Forum

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Hello Again, Worlds: A Failed Gaming IPR Leads to § 101 Success

The tides have turned again in the litigation campaign against gaming companies by Worlds, Inc., who many may recognize as one of the named parties in often-cited Federal Circuit case law on real-parties in interest (“RPI”). In 2018, the Federal Circuit shook up the IPR landscape with a series of RPI decisions, starting with Wi-Fi One, LLC v. Broadcom Corp., which held that the PTAB’s time-bar determinations under § 315(b) are appealable. A series of frequently-cited Federal Circuit decisions followed, including Applications in Internet Time, LLC v. RPX Corp. and Worlds, Inc. v. Bungie, Inc.

In Worlds, Inc. v. Bungie, Inc., the PTAB issued final written decisions holding 34 out of 40 challenged claims unpatentable. On appeal, the Federal Circuit held that the petitioner bears the burden of persuasion for proving that the petition is not time-barred under § 315(b), meaning Bungie had the burden of persuasion to show that Activision—which had been served with a complaint more than one year before Bungie filed its petition—was not an RPI. The Federal Circuit vacated and remanded, and on remand, the PTAB vacated its final written decisions.

Those vacated IPR decisions laid the groundwork for invalidating Worlds’ patents. Recently, a U.S. District Court (D. Mass.) invalidated the asserted patents under § 101, based in part on the PTAB’s substantive analysis. See Worlds, Inc. v. Activision Blizzard, Inc., et al., No. 12-cv-10576-DJC, Dkt. 358 (D. Mass. Apr. 30, 2021) (“Decision”). The Court noted that the PTAB decisions were vacated on procedural grounds and considered the PTAB findings as persuasive authority. “Although now vacated, the substance of the PTAB’s prior rulings serves to support the Court’s analysis below that the client-side and server-side filtering of position information is not inventive.” Decision at 7-8.

The parties focused on four representative claims, including claim 1 of U.S. Patent No. 7,945,856 (the “’856 patent”).

For Step 1, World’s prior arguments, including in the IPR, were used against it. Worlds had argued that its patents were directed at a method of “crowd control” and that these claims are the filtering function to do so. Citing to those characterizations, the Court held the claims to be directed to “the abstract idea of ‘filtering’ (here of ‘position’ information”) which amounts to ‘crowd control.’” Decision at 14.

Activision argued that such filtering is “a fundamental and well-known concept for organizing human activity,” and that the claims do nothing more than recite a general client-server computer architecture to perform routine functions of filtering information to address the generic problem of crowd control. See Decision at 14 (citing BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016)). The Court agreed that this conclusion was consistent with Mayo, Alice, and other cases.

For Step 2, Worlds’ briefing relied heavily on BASCOM’s holding that an inventive concept “may arise … in the ordered combination of the limitations.” BASCOM, 827 F.3d at 1349 (emphasis added). Worlds argued that the claims teach an inventive ordered combination of steps: “a multistep process whereby a server receives position information of avatars associated with network clients; the server filters the received positions and then sends selected packets to each client,” whereby a client can then further determine which avatars to display.” See Decision at 17.

However, the Court held that “there is nothing in the ordering of the steps in the claims (i.e., receiving, determining, comparing) that make them inventive; the ‘steps are organized in a completely conventional way.’” Decision at 18. “The steps of the claims here use only ‘generic functional language to achieve the purported solution’ of filtering of position information for crowd control.” Id. (citing Two-way Media, Ltd. V. Comcast Cable Comms. LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)). “None of the remaining claims are limited to ‘any specific form or implementation of filtering . . . .” Id.

While Worlds emphasized technical-sounding terminologies, such as clients, servers, avatars, networks, and packets, the Court noted that “[c]lient-server networks, virtual worlds, avatars, or position and orientation information are not inventions of Worlds but rather, their patents seek to demonstrate their use in a technological environment.” Decision at 19. “That is, Worlds’ asserted claims use a general-purpose computer to employ well-known filtering or crowd control methods and means that ultimately use same to display graphical results and generate a view of the virtual world, none of which is inherently inventive or sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Id.

Notably, the briefing and the Court’s decision did not appear to rely on expert testimony or evidence in the district court litigation. Therefore, the PTAB’s technical analysis from its vacated decisions played an important role, providing the foundation for the Court’s conclusion that “client-side and server-side filtering of position information is not inventive.” Decision at 7-8.

While gaming companies must be mindful of the many potential procedural pitfalls in PTAB challenges, this recent decision shows the importance of attacking non-inventive patents using both § 101 and IPRs.

Copyright © 2021, Sheppard Mullin Richter & Hampton LLP.

ARTICLE BY Harper Batts and Jeffrey Liang of Sheppard, Mullin, Richter & Hampton LLP
For more articles on gaming IPR, visit the NLRIntellectual Property section.

The Food Safety Aspects of Edible Insects

Recently growing concerns about the environmental effects of food production has led to an interest in the possibility of using insects as a viable nutrient source in both human diets and animal feed (due to the low carbon, water and ecological footprints associated with insect farming and edible insects can be a good source of protein, fatty acids, vitamins and minerals).

The primary objective of FAO’s publication (see link below) is to provide an overview of the potential food safety issues that should be considered, including biological agents (bacterial, viral, fungal, parasitic) as well as chemical contaminants (pesticides, toxic metals, flame retardants). Determination of food safety hazards will help to establish appropriate hygiene and manufacturing practices in this sector.

In addition to the food safety aspects, other challenges facing this emerging sector are briefly discussed. These include general absence of insect-specific regulations governing the production and trade of insects as food and feed, issues related to upscaling the production of insects, among others.

Interested in learning more about FAO’s report ‘Looking at edible insects from a food safety perspective’ ? Click on the link.

© 2021 Keller and Heckman LLP

ARTICLE BY Katia Merten-Lentz of  Keller and Heckman LLP

For more articles on edible insects, visit the NLR Biotech, Food, Drug section.

Santa Clara County Orders Businesses to Track Employees’ COVID-19 Vaccination Status

Santa Clara County wasted no time in altering its public health regulations in response to the county’s graduation to the ‘yellow tier’ of California’s Blueprint For a Safer Economy on May 18, 2021.  Within hours, the County announced a new Public Health Order that went into effect on May 19, 2021.

The Order retires several of the most burdensome requirements of the County’s October 5, 2020, Risk Reduction Order.  As a result, businesses are no longer required to (1) maximize the number of people who work remotely; (2) submit Social Distancing Protocols to the County Public Health Department; or (3) observe County-issued limitations on in-person capacity.

However, the Order imposes several new requirements on employers, including:

  1. Face Coverings: All businesses must require employees and customers to wear face coverings in accordance with the Mandatory Directive on Use of Face Coverings.
  2. Capacity limitations: Some businesses remain subject to State-issued COVID-19-related capacity limitations and must limit the number of people inside their facilities to a certain percentage of their usual maximum occupancy.
  3. Industry-Specific Requirements: Businesses must follow any industry-specific guidance from the State.
  4. Mandatory Reporting Regarding Personnel Contracting COVID-19: Businesses must require that all personnel immediately alert the business if they test positive for COVID-19 and were present in the workplace either:
    1. within the 48 hours before the onset of symptoms or within 10 days after onset of symptoms if they were symptomatic, or
    2. within 48 hours prior to the date on which they were tested or within 10 days after the date on which they were tested if they were asymptomatic.

If a business learns that any of its personnel have tested positive for COVID-19 and were at the workplace during the specified time frame, the business is required to report the positive case within 24 hours to the County Public Health Department at sccsafeworkplace.org.

Businesses must also comply with all case investigation and contact tracing measures directed by the County.

  1. Ascertainment of Vaccination Status: Businesses must ascertain the vaccination status of all personnel. Under the order, personnel includes employees, contractors, and volunteers. Until a person’s vaccination status is ascertained, they must be treated as not fully vaccinated.  Personnel who decline to provide vaccination status must also be treated as unvaccinated.

Businesses must complete their initial ascertainment of vaccination status for all personnel within 14 days of May 19, 2021, or no later than June 1, 2021.  Thereafter, businesses must obtain updated vaccination status for all personnel who were not fully vaccinated every 14 days (e.g., June 15, June 29, July 13, etc.).  Businesses must maintain appropriate records to demonstrate compliance with this provision.  The County has provided a template self-certification form for this purpose.

  1. Mandatory Rules for Personnel not Fully Vaccinated: Businesses must require all personnel who are not fully vaccinated to:
    1. comply with all applicable provisions of the Mandatory Directive on Use of Face Coverings, and
    2. comply with all applicable provisions of the Health Officer’s Mandatory Directive on Unvaccinated Personnel.

In announcing the new Order, the County’s Health Officer indicated additional changes will occur in conjunction with California’s “reopening” on June 15, 2021.  Dr. Cody predicted the future changes will even further differentiate between vaccinated and unvaccinated people.

Employers doing business in the County must act quickly to reconcile their new obligations under the Order with other California laws, chiefly the Fair Employment and Housing Act (“FEHA”), which is enforced by the state’s Department of Fair Employment and Housing (“DFEH”).  The DFEH previously issued guidance for employers that will assist in this endeavor.

Jackson Lewis P.C. © 2021

ARTICLE BY Patrick C. Stokes and Kate L. Brown of Jackson Lewis P.C.
For more articles on COVID-19 Vaccination Status, visit the NLRCoronavirus News section.

The Trend Towards Legal Recreational Cannabis: Considerations for Employers

In the first four months of 2021, Virginia, New Mexico, New York and New Jersey passed laws legalizing or decriminalizing, in some form, recreational marijuana.  Exactly how these laws will affect employers in these states is still an open question, but for now, employers should understand the nuances of the laws so they can prepare for the emerging reality that is legal marijuana.

Recent Laws

New Mexico’s law, which takes effect in June 2021, legalizes recreational marijuana use and sales for people over age 21.  The law allows employers to test for marijuana but has protections for medical marijuana users, which means employers, with limited exceptions, are prohibited from taking adverse action against applicants and employees who have a prescription for and/or use medical marijuana.

New York’s law allows individuals who are at least 21 years old to possess, use, and transfer (without compensation) limited amounts of cannabis.  With some narrow exceptions, employers are prohibited from taking adverse employment action against employees solely because of their use, recreational or otherwise, of cannabis before or after their work hours.  Employers, however, may still prohibit employees from using cannabis while working, on the employer’s premises, or while operating or using the employer’s equipment or property.

New Jersey’s law legalized the sale, use and possession of recreational marijuana for individuals 21 and older.  The law does not restrict an employer from maintaining and enforcing drug-free workplace policies but, when it comes to marijuana, requires employers to show use and/or impairment at work, as opposed to off-duty use, before the employer can take adverse employment action.

Virginia’s new law (HB 2312 / SB 1406) legalizes home cultivation and personal possession of cannabis beginning July 1, 2021, and retail sales to individuals 21 years and older beginning January 1, 2024.  An amendment to existing law (HB 1862) provides employment protections for medical marijuana cardholders by prohibiting employers from terminating, disciplining, or otherwise discriminating against an employee “for such employee’s lawful use of cannabis oil pursuant to a valid written certification.”  While the statute provides anti-retaliation protections for an “employee’s lawful use of cannabis oil based on a valid written certification,” it does not: (i) restrict an employer’s ability to take adverse action for an employee’s impairment while at work or to prohibit possession during work hours; (ii) require an employer to commit any act that would cause the employer to be in violation of federal law or that would result in the loss of a federal contract or federal funding; or (iii) require any “defense industrial base sector employer or prospective employer” to hire or retain any applicant or employee who tests positive for marijuana in excess of specified amounts.  See our recent post concerning employment protections for medical use of cannabis oil.

Under each of these laws, the requirements employers must meet in order to justify adverse employment action can be difficult to ascertain.  Also, the various state administrative agencies tasked with providing guidance regarding these laws have not produced final versions of that guidance.  Even when such guidance is available, however, questions for employers will remain.  Much of what employers can and cannot do under these laws depends on the type of work in which the employees are engaged and the nature of the employment policies at issue.  There will likely not be a “one-size-fits-all” approach to navigating this new legal landscape and employers should be mindful of this as they contend with the prospect of broadening legalization of marijuana.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.
ARTICLE BY Michael Reed and Holly H. Williamson of Hunton Andrews Kurth
For more articles on legal cannabis, visit the NLR Biotech, Food, Drug section.

The Value of IP in Fashion/Retail Insolvencies

A strong brand creates a competitive edge; such a brand will often enhance consumer loyalty, not only because of the products offered, but also because of the name on the label. While a brand may have a strong customer base, in today’s climate it, unfortunately, does not mean that the business has enough financial security to withstand the struggles faced by the declining traditional bricks and mortar shopping in the United Kingdom or the global COVID-19 pandemic. In the first six months of 2020, more bricks and mortar retailers went into administration in the United Kingdom, compared with the whole of 2019. With the sad reality that many brands are facing financial struggles, it is important to consider the value of a brand’s intellectual property (IP) when such brands are facing insolvency.

A brand’s IP can be made up of registered trademarks, the associated goodwill with those marks, designs (registered and unregistered), copyright and trade secrets, to name just a few. The IP is how consumers identify one product from another. The value of a brand is likely to have huge appeal for anyone looking to step in and purchase a company going through administration, especially when it comes to fashion. Particularly where a brand has a strong reputation, it can often continue to thrive after going through the insolvency process. Many brands have ceased trading in retail units following administration but have adapted to create or maintain a strong online presence.

Many UK businesses have followed suit and this year have announced (following administration) that they are closing all of their bricks and mortar shops and will only continue to trade online. Such brands include the prestigious footwear company, Oliver Sweeney; TM Lewin, the 120-year-old British formal menswear brand; Antler, the luxury luggage company originally founded in 1914; and the retro fashion chain, Cath Kidston.

The timeline of buying a company that is in administration, and, therefore, the opportunity (if any) to carry out due diligence, is considerably shorter than the usual acquisition process. Additionally, any information provided by the administrators cannot be relied on, and no warranties or indemnities will typically be given. A buyer should, therefore, consider undertaking its own searches into the assets of a company. In relation to the IP, the following (at a minimum) should be considered:

  1. Identify the IP — what IP does the brand have? Does the brand have registered trademarks (words/logos), designs protected by copyright or perhaps a registration, the ‘get-up’ of its websites or stores, or any potential databases such as customers or suppliers?
  2. Ownership — it is important to consider whether the IP ownership sits with the correct party to ensure it will be validly transferred following completion of the acquisition. Any registrations should be in the name of the business, not an individual employee or contractor. If there are any discrepancies in ownership, steps should be taken to ensure a valid assignment could be put in place.
  3. Is it valid — for any registered IP, a buyer should ensure the registrations have been renewed, as required, and subsist. For any unregistered rights such as copyright or designs, if possible, calculations should be made as to when the expiration dates might arise. For copyright, protection ends at the end of the calendar year following 70 years after the author’s death and for unregistered designs, protection ends a maximum of 15 years after the first creation.

For those brands facing financial difficulty, the importance of validly holding IP assets cannot be understated. Having IP correctly and validly held could help in uncertain times when financial assistance may be needed, particularly where the brand is of interest to bankruptcy bidders.

Tegan Miller-McCormack, a trainee solicitor in the Mergers & Acquisitions/Private Equity practice, contributed to this article.

©2021 Katten Muchin Rosenman LLP

ARTICLE BY Sarah Simpson, Prav Reddy and Mark Johnson of
Katten
For more articles on fashion insolvencies, visit the NLR Bankruptcy & Restructuring section.

Questions Linger for Employers with Regard to COVID-19 Policies

The country breathed a collective sigh of relief when, on May 13th, the CDC announced updated guidance that fully vaccinated people no longer need to wear a mask or physically distance “in any setting.” In reality, masking and social distancing requirements remain in New Jersey and to a lesser extent in New York, and the guidance still leaves many open questions for employers. Notably, the CDC’s workplace guidance has not been updated as of the date of this writing and continues to recommend masking and social distancing in the workplace. The CDC’s latest guidance still calls for wearing masks in crowded indoor settings like buses, planes, hospitals, prisons and homeless shelters. Importantly, and as discussed below, the new guidance does not negate the need for continuing COVID protocols in the workplace.

While the CDC cited scientific statistics (the efficacy of the vaccines against illness from COVID-19 and certain variants) as the impetus for expanding maskless activities for vaccinated people, the agency also communicated that it hoped to incentivize more people to get vaccinated. Many employers considering whether to implement vaccine policies are now trying to figure out how the CDC’s newest guidance applies to their businesses.

What Does This New Guidance Mean?

New Jersey

New Jersey has not changed its existing masking mandates indoors where social distancing is not possible, but has relaxed masking requirements outdoors. On May 17th, Governor Murphy issued Executive Order 241, announcing individuals need not wear masks in “outdoor spaces,” regardless of their ability to social distance or vaccination status.1 Yet, the Order also reinforced that the Governor’s prior Executive Order No. 192, which requires individuals to continue to wear a face covering in indoor workplaces, remains in force.

New York

New York State diverged from New Jersey when it announced on May 17th that it planned to adopt the new CDC guidance on mask use and social distancing for fully vaccinated individuals for most business and public settings beginning on May 19th. Citing 52% of New Yorkers over the age of 18 being fully vaccinated, New York has authorized businesses to continue to require masks, but “[i]n most settings, vaccinated individuals will not be required to wear a mask.”2 New York has issued a flyer detailing how businesses in the state should implement the CDC’s guidance. Highlights include the following:

  • Fully vaccinated individuals do not need to wear masks or social distance in most settings, including commercial settings. Excluded from this guideline, however, are Pre-K through 12 schools, public transit, homeless shelters, correctional facilities, nursing homes and healthcare settings.
  • For businesses that operate with less than 250 persons indoors or less than 500 outdoors, they may require proof of vaccination status, either by paper, digital application, the State’s Excelsior Pass (digital proof of COVID-19 vaccination or negative test results), or the honor system.
  • For businesses with more than 250 persons indoors or 500 people outdoors (“large-capacity”), business capacity is no longer limited by any other criteria than the ability of unvaccinated people to remain six feet apart. If all patrons within an establishment (or a separate part of an establishment) are able to present proof of full vaccination, those fully vaccinated individuals need not wear a mask or social distance. Proof of vaccination by the honor system is insufficient in large capacity businesses.
  • CDC Guidance Impact on the Workplace

For employers, decisions regarding modifying or eliminating any masking or social distancing policies are dependent on federal, state and local laws and the factual circumstances at those workplaces. With workforces containing both vaccinated and unvaccinated individuals, a changing landscape of official guidance, and the desire of our communities to return to normal, employers still have challenges ahead. Employers need to evaluate their workplace environments and make decisions that promote and protect workplace safety as the guidance evolves. Evaluating remote work policies and crystalizing job roles where a physical presence at the office is necessary are sure to be high on the action items list.

When your jurisdiction allows for a reduction or elimination of indoor masking, preliminary factors to consider when deciding whether to modify your workplace’s masking protocols include:

  • The size and layout of the workspace in relation to the feasibility for employees to social distance;
  • Whether workers are vaccinated, the percentage of workers who are vaccinated, and/or implementing a vaccination policy;
  • How best to obtain vaccination information from employees;
  •  The extent to which visitors and/or customers are present who may or may not feel comfortable with a mask free workforce;
  • The type of work being done and whether such work is conducive to social distancing;
  • The employer’s ability to enforce internal COVID policies and potential consequences for violation;
  • For unionized workforces, the obligations of any collective bargaining agreement and/or negotiations over changes to terms and conditions of employment.

Final Thoughts

Employers need to review their policies and ensure communications with employees are clear and consistent with all federal, state, and local rules and guidelines. As with any changes in the workplace, clear communication seeking alignment, understanding, and buy-in from both employees and management in complying with the business’s COVID policies and procedures, with the goal of keeping all employees and visitors to the business safe, remains critical.

© Copyright 2021 Sills Cummis & Gross P.C.

ARTICLE BY Stacy L. Landau and Patricia M. Prezioso of Sills Cummis & Gross P.C.

8 Asian American Attorneys Who Shaped the History of the United States

Asian Americans are the fastest-growing racial or ethnic group in the United States according to a recent analysis by Pew Research Center. In celebration of May as Asian American and Pacific Islander (AAPI) Heritage Month, we wanted to showcase eight Asian American attorneys who shaped the nation and paved the way for justice and civil rights of those who came after them.

8 Asian American Attorneys Who Made U.S. History

  • Hong Yen Chang
  • Dalip Singh Saund
  • Hiram Fong
  • Minoru Yasui
  • Herbert Choy
  • Patsy Mink
  • Dale Minami
  • Kamala Harris

1. Hong Yen Chang (1859-1926)

 

 

 

Hong Yen Chang was born in 1859 in Guangdong, China and was one of 120 students that were selected to study in the United States through the Chinese Educational Mission in 1872. He became the first Chinese American lawyer in the U.S. in 1888, but not without facing racism and countless rejections.

He had strong recommendations for bar admission after graduating with honors from Columbia Law School in 1886, but was denied because the Chinese Exclusion Act prevented him from gaining U.S. citizenship. Although Chang was already naturalized in 1887, the New York Supreme Court deemed it invalid but later passed a law to allow him to apply to the bar again. When he moved to California, he was rejected from the Bar as the state Supreme Court ruled the naturalization certificate issued by New York as invalid. Chang was never able to practice law in California but instead established a career in foreign policy. After petitions, he was posthumously granted admission to the California State Bar in 2015.

2. Dalip Singh Saund (1899-1973)

 

 

 

Dalip Singh Saund was born in Punjab, India in 1899 and immigrated to the United States through Ellis Island to study agriculture and mathematics. He became heavily involved in the movement for immigrants of South Asian descent to become naturalized U.S. citizens. This led to Congress passing the Luce-Celler Act of 1946 which allowed more South East Asians to immigrate to the U.S. each year, and allowed them to become naturalized U.S. citizens. After he became a naturalized U.S. citizen in 1949, he ran for election as local judgeship and won the post. In 1955, he ran for a seat in the House of Representatives and became the first Asian American, the Indian American, and the first Sikh American to be elected to Congress and was re-elected twice.

3. Hiram Fong (1906-2004)

 

 

 

Born in 1906, Hiram Fong was born in Honolulu, Hawaii, and was one of eleven children. His family had immigrated from China in 1872 to work on sugar plantations in Hawaii. He obtained his law degree from Harvard Law School in 1935 and during World War II, served as a major Judge Advocate in the US Army Air Force. When Hawaii achieved statehood in 1959, Fong ran for office and became the first Asian American U.S. Senator, serving from 1959 to 1977, and the first Asian American to receive delegate votes for his party to be nominated for President of the United States.

4. Minoru Yasui (1916-1986)

 

 

 

Minoru Yasui was born in Oregon and was one of the few Japanese Americans who fought the unfair laws targeting Japanese Americans and immigrants after the Pearl Harbor attacks. He earned his law degree at the University of Oregon where he was also a member of the U.S. Army Reserve Officer Training Corps (ROTC) program, and passed the bar in 1939. After the attack on Pearl Harbor, Yasui attempted to report for duty to serve in the military but was continuously denied and was later arrested by the FBI as an enemy alien.

In 1942, he opened a private law practice in Portland to help Japanese Americans that were being displaced due to Executive Order 9066, which imposed curfews, travel bans, and the Japanese American internment camps during World War II. Yasui deliberately broke curfews and refused to evacuate his home to be sent to an internment camp, so he was sentenced to a year in prison. He was deemed as not a U.S. citizen by the judge but was later rightfully recognized as a U.S. citizen and was moved to an internment camp. He was released in 1944 and practiced law in Colorado, later becoming involved in community relations and fought for reparations.

5. Herbert Choy (1916-2004)

 

 

 

Herbert Choy was the first Asian American and Hawaiian native to serve as a federal judge and the first Korean American lawyer admitted to the bar. He established a private law practice in his home state of Hawaii with Hiram Fong, served as Attorney General for Hawaii, and was later nominated to the U.S. Court of Appeals for the Ninth Circuit in 1971. He served on the Ninth Circuit court until 2004 when he passed away.

6. Patsy Mink (1927-2002)

 

 

 

As a third-generation Japanese American, Patsy Mink grew up in Hawaii and graduated from the University of Chicago Law School in 1948. She faced sexism when she was refused the right to take the bar exam in Hawaii, due to losing her Hawaiian territorial residency when she got married. She challenged the statute and was able to pass the bar but was rejected from jobs because she was married and had a child, so she started her own practice in 1953. She made waves challenging discriminatory laws and became the first woman of color and the first Asian American woman elected into Congress when she won a seat in 1964. She served for 12 terms and later ran for the 1972 presidential election, making her the first East Asian American woman to seek a presidential nomination.

7. Dale Minami (1946-)

 

 

 

Dale Minami fights for the civil rights of Asian Pacific Americans in many of his cases. He led the reopening of the case of Korematsu v. United States in the early 1980s which helped overturn Fred Korematsu’s criminal conviction 40 years after the case closed. Korematsu had been criminally convicted for refusing to move to a Japanese American internment camp during World War II. Minami received several awards including the ABA’s Thurgood Marshall and Spirit of Excellence Awards.

8. Kamala Harris (1964-)

 

 

 

Kamala Harris made history when she was elected in 2020 as the first female U.S. Vice President, and the first Asian American and first African American vice president. Prior to becoming the 49th vice president of the United States, Harris served as the District Attorney of San Francisco from 2004 to 2011. Harris is the first woman, the first African American, and the first South Asian American to serve as Attorney General of California in 2010 before serving as Senator in 2016.

Recognizing Asian American and Pacific Islander Attorneys

The Asian American experience is truly a diverse and nuanced one as shown from the background of just these eight influential attorneys in U.S. history. During this Asian American and Pacific Islander Heritage Month, we should all learn from the rich history of America.

© Copyright 2021 PracticePanther

ARTICLE BY Nina Lee of PracticePanther
For more articles on the legal industry, visit the NLR Law Office Management section.

COVID-19: Returning to A Mask-Free Workforce? Not Quite Yet

On 13 May 2021, the Centers for Disease Control and Prevention (CDC) issued new guidance, stating that individuals who are fully vaccinated against COVID-19 “can resume activities without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” This forced employers across industries to evaluate their existing face covering/mask policies absent additional guidance from the Department of Labor (DOL) or Equal Employment Opportunity Commission (EEOC). On 17 May 2021, the Occupational Safety and Health Administration (OSHA) announced its endorsement of the CDC’s new guidelines, but did not provide any additional guidance for employers. Specifically, OSHA stated that it “is reviewing the recent CDC guidance and will update our health materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.” Given that OSHA has not formally revised its existing guidelines and recommendations related to face covering requirements in the workplace as a means of mitigating the spread of COVID-19 and the EEOC has not updated its COVID-19 guidance since December 2020, employers should tread carefully and closely consider the risks involved before relaxing any face covering workplace restrictions.

OSHA IS RESPONSIBLE FOR WORKERS; CDC PROVIDES GUIDANCE FOR THE PUBLIC

The CDC’s mission is to protect the American public from “health, safety, and security threats,”1 while OSHA’s mission is to “ensure safe and healthful working conditions for workers.”2 The Occupational Safety and Health Act (OSH Act) contains a general duty clause, which requires employers to provide workers with a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm. Throughout the pandemic, OSHA has interpreted this clause to mandate the use of masks in the workplace to limit the spread of COVID-19.

Although the CDC’s guidance throughout the pandemic has helped inform many employer decisions, it is important to keep the CDC’s guidance in context. First, the CDC’s guidance is just that—guidance. OSHA, on the other hand, is responsible for enforcing the requirements of OSH Act, promulgates rules and standards, and assesses penalties to ensure compliance with the OSH Act. Second, as noted above, the CDC’s recommendations are aimed at protecting the American public, while OSHA’s rules and standards are designed to ensure employers provide a safe working environment to their employees. While OSHA has apparently endorsed the new CDC guidance, OSHA may publish more detailed guidance concerning the relaxed use of masks for vaccinated individuals in the workplace. Until then, OSHA has not formally removed its most recent COVID-19 guidance for employers published on 29 January 2021, which includes mandating the use of masks by both employees and third parties in the workplace.

STATE AND LOCAL LAW

Many state and local laws, executive orders, and other guidance continue to require masks in the workplace (and inside public places). Indeed, the CDC does not have authority over state or local governments that may impose stricter requirements, and its recent guidance explicitly defers to state and local laws. Importantly, although some State Executive Orders across the country have been changed since the most recent CDC guidance went into effect, some other State Executive Orders remain in effect and some require mask wearing and social distancing. Therefore, employers should consult state and local restrictions before lifting any mask wearing policies.

Further, some jurisdictions also have employer liability statutes and specific workers’ compensation standards that mandate employer compliance with certain health and safety guidelines, which may include state and local regulations. These statutes often provide that when employers adhere to safety standards designed to prevent the spread of COVID-19, the employer is able to limit exposure or reduce liability when and if an employee contracts COVID-19 in the workplace.

INDUSTRY GUIDANCE

Employers must also consider whether the CDC’s new guidance actually changes anything for them, as the guidance does not apply to all industries or to all settings. For example, vaccinated individuals are still required to wear a face covering on airplanes and in healthcare facilities. Employers who work in or regularly interact with these industries should be mindful that requirements may differ. Any changes to a mandatory face covering policy should be made with those considerations in mind.

CONTRACTUAL OBLIGATIONS

In addition to government regulations, some employers may be contractually obligated under a lease or other agreement to maintain a mask mandate, regardless of the new CDC guidance. Therefore, prior to implementing any relaxed mask-related policies, employers should evaluate whether contractual or landlord restrictions may apply. Employers also should consider consulting any applicable insurance policies before modifying mask mandates.

EQUAL EMPLOYMENT OPPORTUNITY CONSIDERATIONS

Finally, the EEOC has not updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” (WYSK) to account for the widespread availability of vaccines or the impact of vaccinations on mask wearing in the workplace. However, the current WYSK guidance provides some helpful information for employers considering lifting mask mandates in the workplace. For example, as discussed in our December 2020 alert on workplace vaccination considerations, asking for an employee’s vaccination status is not a prohibited medical inquiry under the Americans with Disabilities Act. Thus, if an employer elects to lift mask restrictions in the workplace, it should consider whether it will require employees to show proof of vaccination before allowing the employee to be present in the workplace without a mask, balancing risk avoidance with considerations of workplace culture and morale. If an employer chooses to require proof of vaccination, such proof should be limited to (i) an employee’s CDC vaccination card and a (ii) corresponding identification card, such as a driver’s license. Further, employers should ensure that employees do not bring an entire medical file or unrelated medical documents as proof of vaccination. Limiting who has access to information regarding employee’s vaccination status is advisable and employers that choose to inquire about vaccination status should develop a written protocol for collecting such information and keeping it confidential. Such employers requiring proof of vaccination should maintain information related to an employee’s vaccination status separate from the employee’s general personnel file. Employers also may consider designating a human resources contact to administer the policy and maintain the list of vaccinated employees.

Keeping anti-discrimination laws in mind, employers should carefully consider how they will enforce a revised face covering policy in a non-discriminatory manner and while awaiting further guidance from the EEOC. Whether or not an employee is wearing a mask may inadvertently reveal the employee’s vaccination status. Thus, the risk for employers will be in how employees are treated in response to unavoidable disclosure. Managers and supervisors should be reminded of company equal employment opportunity policies and should be trained to not exclude masked individuals (or vice-versa) from employment opportunities. While distinguishing between unvaccinated and vaccinated employees may seem non-discriminatory, employers must remember that many individuals will remain unvaccinated because of a medical disability or a sincerely held religious belief and others may simply be more comfortable continuing to wear a mask in the workplace.

KEY TAKEAWAYS

  • Employers should consider a number of factors before implementing a revised face covering/mask policy in the workplace.
  •  Employers should work with their counsel to ensure their workplace policies are compliant with the OSH Act and all applicable state and local laws, including anti-discrimination laws.
  • Employers should expect an increase in employee concerns related to wearing a mask in the workplace and should prepare responses to anticipated questions and develop a plan for messaging the changes to their workforce before making any policy changes.
  • Employers should consider requiring proof of vaccination before allowing an employee to go without a mask in the workplace. If an employer chooses to do so, proof of vaccination should be in the form of the CDC vaccine card and government issued identification.
  • Employers who are lifting mask restrictions for vaccinated employees should have a clear reporting procedure for employee concerns. Such a reporting procedure should not involve employee-to-employee communications.
  • Employers who are lifting mask restrictions for vaccinated employees should consider identifying for employees’ scenarios where mask wearing still may be expected such as visiting customer locations that mandate mask wearing, visiting industries excluded from the CDC’s relaxed mask guidance, traveling and/or meeting with third parties, or attending events (where vaccine status of visitors cannot be ascertained).
  • Employers should consider how a revised face covering policy may affect return-to-work plans. Employees, especially those who are immunocompromised or those who have children or individuals who are at high-risk of COVID-19 in their residences, may be more reluctant to return to a physical location with relaxed mask wearing policies.
    Copyright 2021 K & L Gates

For more articles on CDC mask guidance, visit the NLR Coronavirus News section.

100 Days of the Biden Administration, Part II: Key Labor and Employment Policy Developments

In its first 100 days in office, the Biden administration has advanced its policy priorities, many of which have involved repealing the policy accomplishments of the previous presidential administration. The Biden administration can be expected to advance its own proposals soon.

The first part of this two-part blog series focused on the Biden administration’s first 100 days and reviewed the administration’s legislative plans. The second part of the series addresses policy developments occurring at the executive branch agencies and independent agencies.

U.S. Department of Labor

Personnel Is Policy

On March 22, 2021, the U.S. Senate confirmed former Boston mayor and union official Martin Walsh as secretary of labor. While it is still early, many in the business community remain optimistic about Walsh’s willingness to listen to their concerns. As for other leadership positions at the U.S. Department of Labor (DOL), the deputy secretary of labor nominee, Julie Su, and solicitor of labor nominee, Seema Nanda, have had their confirmation hearings but have not been voted on by the full Senate. Su runs California’s Labor and Workforce Development Agency, while Nanda is an Obama-era DOL vet and former chief executive officer of the Democratic National Committee. If Su and Nanda are confirmed by the Senate, they will work with Walsh as the top three officials dictating policy at the DOL.

OSHA and Workplace Safety

  • Assistant secretary nominee. In early April 2021, President Joe Biden announced his intention to nominate Douglas L. Parker to be the assistant secretary of labor for the Occupational Safety and Health Administration (OSHA). Parker currently serves as chief of California’s Division of Occupational Safety and Health (Cal/OSHA).
  • OSHA emergency temporary standard. For months, workers’ advocates and Democrats have been calling on OSHA to issue an emergency temporary standard (ETS) to protect workers from COVID-19. On January 21, 2021, President Biden doubled down on these demands when he issued an executive order instructing the DOL and OSHA to consider issuing an emergency temporary standard by March 15, 2021. On April 26, 2021, more than a month past the deadline, OSHA sent its draft ETS to OIRA for approval. Any final ETS could be impacted by recent guidance from the U.S. Centers for Disease Control and Prevention, which recently eased mask requirements.
  • COVID-19 vaccine reactions. On April 20, 2021, OSHA issued new guidance on when an employer must record in its injury and illness logs an employee’s adverse reaction to a COVID-19 vaccination. In short, if an employer requires employees to get vaccinated, then any adverse action is “work-related” and, therefore, recordable.

Wage and Hour

  • Independent contractor rule. On May 6, 2021, the DOL rescinded its independent contractor rule, which had set forth a test for independent contractor status that focused on “the worker’s opportunity for profit or loss” due to individual initiative and investment. Although the rule was finalized on January 7, 2021, it never became effective.
  • Joint-employer rule. On March 12, 2021, the DOL proposed to rescind the Fair Labor Standards Act joint-employer rule that took effect in March 2020, but was subsequently vacated by a district judge in New York. The rule had set forth a four-factor test for determining joint-employer status.
  • Tip rule. While portions of the 2020 final tip rule went into effect on April 30, 2021, the Wage and Hour Division (WHD) delayed until December 31, 2021, the effective date of the provisions concerning civil money penalties and employees who perform tipped and non-tipped work.
  • Liquidated damages. On April 9, 2021, the WHD “return[ed] to pursuing pre-litigation liquidated damages” in lieu of litigation, after temporarily halting the practice in order to encourage economic recovery during the pandemic.
  • PAID program. The DOL discontinued the Payroll Audit Independent Determination (PAID) program, which the Trump administration initiated in 2018 to encourage employers to voluntarily correct certain underpayments to employees.

Federal Contractors and the Office of Federal Contract Compliance Programs (OFCCP)

  • OFCCP director. Jenny R. Yang, former chair of the U.S. Equal Employment Opportunity Commission, is now the director of the OFCCP. Expect her to focus the agency on increased enforcement, particularly around compensation discrimination.
  • Minimum wage increase. On April 27, 2021, President Biden issued an executive order that will require covered federal contractors and subcontractors to pay employees a minimum of $15 per hour by January 2022.
  • Diversity and inclusion training. President Biden revoked Executive Order 13950, relating to federal contractors’ diversity and inclusion training efforts.
  • Religious exemption. The OFCCP proposed to rescind a December 2020 regulation that is intended to provide protections for religious organizations to “hire employees who will further their religious missions, thereby providing clarity that may expand the eligible pool of federal contractors and subcontractors.”

Office of Labor-Management Standards

The DOL subagency that “promotes labor-management transparency as well as labor union democracy and financial integrity” proposed to rescind a Trump-era rule that required increased financial disclosures from labor organizations.

Labor-Management Relations

Unprecedented Firing of NLRB GC

Within hours of being inaugurated, President Biden fired Peter Robb, the National Labor Relations Board’s general counsel. Robb’s term wasn’t scheduled to expire until November 2021. This was an unprecedented decision, as NLRB general counsel are traditionally permitted to serve out their terms during changes in administrations. The move sends a message to stakeholders that the administration is going to be very aggressive in the traditional labor arena. It also allows the administration to begin “teeing up” cases in anticipation of taking full control of the Board by fall 2021.

A Republican Board. For Now.

Republicans will hold a majority on the NLRB through August 2021 because Board members’ terms are staggered. Expect a lot of political activity surround the Board during the late summer and early fall as President Biden tries to get his Board member nominees confirmed. The administration hopes that a Democratic-controlled Board can start enacting policy changes by the second half of the year.

Graduate Students

On March 15, 2021, the Board withdrew its regulatory proposal to exempt from the coverage of the National Labor Relations Act students who, in connection with their undergraduate and graduate studies, are financially compensated for the services they provide to private colleges or universities.

Contract Bar

On April 21, 2021, a bipartisan Board upheld its contract-bar doctrine, which bars union elections during the term of a collective bargaining agreement for up to three years.

Pending Matters

  • Uniform policies. The Board is reviewing the public feedback that it requested on its standard regarding employer uniform policies and whether they interfere with employees’ wearing of union insignia.
  • Employer investigations. The Board is also reviewing public feedback it requested on the issue of the proper standard to apply in situations in which employers question employees in the course of preparing defenses to unfair labor practice allegations.

 Immigration

USCIS Director Nominee

In mid-April 2021, President Biden announced his intent to nominate Ur Jaddou to be director of U.S. Citizenship and Immigration Services (USCIS). Jaddou previously served as USCIS chief counsel.

H-4 Work Authorization

On January 25, 2021, USCIS withdrew a Trump administration proposal that would have rescinded work authorization permits for dependent H-4 spouses.

“Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans”

On February 2, 2021, President Biden issued an executive order to begin unwinding Trump-era immigration policies by directing the secretary of state, the attorney general, and the secretary of homeland security to “review existing regulations, orders, guidance documents, policies, and any other similar agency actions” that do not, among other things, “promote integration, inclusion, and citizenship, and … embrace the full participation of the newest Americans in our democracy.”

Public Charge Rule

The administration will no longer defend the public charge rule in the courts as it begins the process of repealing the regulation.

H-1B Wage Allocation Rule Postponed

On February 4, 2021, USCIS announced that it would postpone the effective date of its H-1B wage allocation selection rule until December 31, 2021. Published in the Federal Register on January 8, 2021, the rule was originally scheduled to go into effect on March 9, 2021.

H-1B Prevailing Wage Rule

The DOL’s Employment and Training Administration (ETA) proposed to delay the effective date of the rule entitled “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States.” The original regulation was finalized in the final days of the Trump administration and was set to go into effect on March 15, 2021. The ETA postponed the rule’s effective date until May 14, 2021, and is seeking a further delay to November 14, 2022.

Trump-Era Visa Bans

On February 24, 2021, President Biden revoked Proclamation 10014, issued in April 2020, which banned individuals from seeking entry to the United States on immigrant visas. In addition, the Trump administration’s Proclamation 10052, which banned individuals from entering the United States on certain nonimmigrant visas (such as H-1B and L-1), expired on March 31, 2021.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
For more articles on the Biden administration, visit the NLR Administrative & Regulatory section.

SCOTUS: FTC Has No Authority to Obtain Monetary Relief Under Section 13(b) of the FTC Act

The Supreme Court unanimously held that Section 13(b) of the Federal Trade Commission Act does not give the Commission authority to bypass administrative proceedings and seek equitable monetary relief directly from the federal courts.

Section 13(b) of the FTC Act provides that when the Commission “has reason to believe that any person, partnership, or corporation is violating, or is about to violate, any provision of law enforced by the Federal Trade Commission . . . in proper cases the Commission may seek, and after proper proof, the court may issue, a permanent injunction.”  For over four decades the Commission has relied on this Section to bring consumer protection and antitrust actions directly before federal courts seeking injunctions and monetary relief, such as restitution and disgorgement, bringing “far more cases in court than it does through the administrative process.”  And through this path, the Commission has obtained billions of dollars in relief, securing $11.2 billion in consumer refunds during the past five years alone.

In 2012, relying on Section 13(b), the Commission filed a complaint in federal court against Scott Tucker and his companies, claiming that their short-term payday lending practices were deceptive, unfair, and violated Section 5(a) of the FTC Act.  At summary judgment, the district court granted the FTC’s request for an injunction and monetary relief, ordering Tucker to pay $1.27 billion in restitution and disgorgement, which was to be used by the Commission to provide “direct redress to consumers.”  On appeal to the Ninth Circuit, Tucker contended that Section 13(b) does not give the Commission the authority to seek the monetary relief awarded by the district court.  Adhering to its precedent, the Ninth Circuit found that Section 13(b) “empowers district courts to grant any ancillary relief necessary to accomplish complete justice, including restitution.”  The Supreme Court granted Tucker’s petition for certiorari to address the recent Circuit split concerning the “scope of Section 13(b).”

As previously discussed here , during oral arguments Tucker maintained that because Section 5(l) expressly authorizes the Commission to seek “an injunction and other further equitable relief” in district courts against respondents who violate an Administrative Law Judge’s final cease and desist order, and this provision was amended concurrently with the enactment of Section 13(b), Congress intentionally restricted the Commission’s authority under Section 13(b) to “permanent injunctions” only.  On the other side, the Commission argued that the textual variances reflected the functional differences between bringing a claim through the administrative process first versus going directly to the federal courts, and the enactment of Section 13(b) was Congress giving the Commission a choice of enforcement options.

The Supreme Court ultimately reversed the Ninth Circuit’s judgment and concluded that, based on the statutory language, Section 13(b) “does not grant the Commission authority to obtain equitable monetary relief.”

Specifically, the Court found that not only does Section 13(b) solely reference the ability to seek “injunctions,” but when considering the provision as a whole, including the grammatical structure—“is violating” and “is about to violate” —13(b) “focuses upon relief that is prospective, not retrospective.”  Additionally, the Court considered the structure of the Act and the other provisions that explicitly authorize the Commission to seek monetary relief in federal courts only after going through the administrative process and obtaining a cease and desist order.  This includes Section 5(l), which authorizes district courts to award “such other and further equitable relief as they deem appropriate”, and Section 19, which allows for “such relief as the court finds necessary to redress the injury to consumers.”  Based on these provisions, the Court found it “highly unlikely” that 13(b) would allow the Commission “to obtain that same monetary relief and more” without first having to satisfy the conditions and limitations of going through the administrative process as required by Sections 5(l) and 19.

The Court concluded by remarking that the gap in the Commission’s authority made by its decision may be filled by a legislative fix.  Following the decision, the FTC’s acting Chairwoman, Rebecca Kelly Slaughter, issued a statement urging Congress to “act swiftly and restore and strengthen the powers of the agency so we can make wronged consumers whole.”  Until and unless Congress acts, advertisers are likely to see more administrative proceedings with the FTC, as well as the Commission seeking alternative routes for pursuing monetary relief no longer available under Section 13(b).  Chairwoman Slaughter reaffirmed that during her opening statement on April 27, 2021 before the U.S. House Committee on Energy and Commerce Subcommittee on Consumer Protection and Commerce:  “[A] word about the FTC’s other authorities: we will use them all—administrative proceedings, penalty offense authority, more rule-violation cases, more rulemaking, more civil penalty cases where we have specific statutory authority. But, without Congressional action, none of these options will come close to protecting consumers and incentivizing compliance as much as our lost 13(b) authority. I hope you will move swiftly to restore it.”  To be continued, now in the halls of Congress.

The case is AMG Capital Management, LLC v. Federal Trade Commission, Docket No. 19-508, 593 U.S. __ (April 22, 2021).

© 2021 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP

ARTICLE BY Anna B. Naydonov of Finnegan
For more articles on the FTC, visit the NLR Antitrust & Trade Regulation section.