Category: Litigation

Kansas Supreme Court Decision Declares Resale Price Maintenance Per Se Illegal Under State Antitrust Statute

The National Law Review recently published an article by Lawrence I. Fox, Megan Morley, and Joseph F. Winterscheid of McDermott Will & Emery regarding Resale Price Maintenance in Kansas:

The Kansas Supreme Court recently determined resale price maintenance isper se illegal under state law, becoming the latest state to reject the rule of reason standard mandated by the Supreme Court of the United States.  The decision serves as a reminder that although a supplier’s pricing policies may be permissible under federal law, they may nevertheless be subject to per se condemnation under certain state statutes.

On May 4, 2012, the Kansas Supreme Court announced that resale price maintenance (RPM) is per se illegal under Kansas law in O’Brien v. Leegin Creative Leather Products, Inc.  With this ruling, Kansas joined a growing number of states—including Maryland, New York and California—that have refused to follow the Supreme Court of the United State’s 2007 holding in Leegin Creative Leather Products, Inc. v. PSKS, Inc. that the legality of RPM should be assessed under the rule of reason.  The O’Brien decision therefore serves as yet another sobering reminder that suppliers need to be mindful that although RPM may be subject to rule of reason analysis at the federal level, it remains subject to per secondemnation at the state level in many states under state antitrust statutes

In O’Brien, the plaintiff, a purchaser of accessories, filed a class action litigation against Leegin Creative Leather Products, a manufacturer and retailer of Brighton fashion accessories and luggage (Brighton)—the same defendant involved in the U.S. Supreme Court’s landmark 2007 eponymous decision—alleging Brighton’s pricing practices violated the Kansas Restraint of Trade Act (KRTA).  These practices included calling for retailers to sell Brighton products at a “keystone” price determined by Brighton and for certain “heart store” retailers to sell Brighton products at a “suggested price every day, 365 days a year.”  Brighton did admit to investigating reports it received regarding alleged violations of the policy and, although not occurring in Kansas, it acknowledged refusing to deal with retailers that intentionally violated the policy.

Upon motion for summary judgment, the trial court held the plaintiff’s RPM claims should be evaluated under the rule of reason.  To determine that a rule of reason analysis is appropriate, the court invoked language from Heckard v. Park, 188 P.2d 926, 931 (1948), and Okerberg v. Crable, 341 P.2d 966, 971 (1959): “The real question is never whether there is any restraint of trade but always whether the restraint is reasonable in view of all the facts and circumstances and whether it is inimical to the public welfare.”  Using this standard, the court refused to grant summary judgment because it believed there was a genuine issue of material fact as to the reasonableness of Brighton’s pricing policies.  The trial court, however, still granted Brighton’s summary judgment motion after ruling the plaintiff would be unable to prove antitrust injury.

On the plaintiff’s appeal, the Kansas Supreme Court overturned the ruling of the trial court and declared that horizontal and vertical restraints of trade, including RPM, are per se illegal.  In reaching this decision, the Kansas Supreme Court examined the plain language of KRTA, federal antitrust rulings and past Kansas precedent.

First, the court looked at the statutory language of KRTA.  Section 50-101(d) provides “[a]ny such combinations are declared to be against public policy, unlawful and void.”  Section 50-112 states “[a]ll arrangements, contracts, agreements, trusts, or combinations … designed or which tend to advance, reduce, or control the price … to the consumer … are hereby declared to be against public policy, unlawful, and void.”  Because these statutes do not mention reasonableness, the court believed that this “clear statutory language draws a bright line” against the use of a rule of reason standard.

Second, the court briefly addressed and then dismissed the notion that federal antitrust rulings, such as Leegin, compelled a rule of reason analysis.  Citing a string of Kansas decisions, the court determined “that federal precedents interpreting, construing, and applying federal statutes have little or no precedential weight when the task is interpretation and application of a clear and dissimilar Kansas statute.”

Third, the Kansas Supreme Court looked at prior state cases to assess whether a reasonableness standard should be read into KRTA.  Three of these cases were decided under Kansas’s General Statutes of 1915 and Revised Statutes of 1923, which the court described as the “legislative ancestor[s]” of KRTA and which contained similar language to the present day statute.  In each of these cases, the Kansas Supreme Court held the vertical price-fixing agreements at issue were unenforceable and per se illegal.

In 1937, however, the state legislature enacted the Kansas Fair Trade Act (KFTA).  This statute both permitted contracts controlling resale prices and authorized private actions to punish deviations from these contracts.  Although the legislature repealed this statute in 1963, the Kansas Supreme Court examined whether the per se rule adopted in these pre-KFTA cases had been overruled while KFTA was in effect.  The only relevant cases decided during this period were the aforementioned decisions in Heckard and Okerberg, which did indeed adopt a reasonableness standard.

Analyzing these KFTA-era cases, however, the Kansas Supreme Court determined that this “reasonableness rubric” did not apply to alleged price-fixing agreements.  The restraints of trade at issue in those cases—non-compete covenants and requirements contracts—were “factually and legally distinct from vertical and horizontal price-fixing.”  Moreover, the court went on to state it would have to read unwritten elements into the unambiguous statutory language of KRTA to impose a rule of reason in price-fixing cases, which would require the court to impermissibly encroach on the legislative function.  The court concluded that if Heckard andOkerberg were before it today, it would not impose a reasonableness standard because the clear statutory language does not require it.  The Kansas Supreme Court therefore overruled the reasonableness standard adopted in Heckard andOkerberg and held that price-fixing violations are per se illegal under KRTA.

With the decision in O’Brien, Kansas is the latest state to reject the rule of reason standard mandated by Leegin for federal RPM cases when applying state antitrust statutes.  This decision serves as a reminder to suppliers that although their pricing policies may be permissible under federal law, these same policies may nevertheless be subject to per se condemnation under certain state statutes.  Any programs directed at affecting downstream resale prices must therefore be crafted carefully to ensure they are legally compliant at both the state and federal levels.

© 2012 McDermott Will & Emery

Pennsylvania Adopts Significant Tort Reform Eliminating Joint and Several Liability: Fair Share Act Signed into Law

The National Law Review recently published an article by Meredith N. Reinhardt of Drinker Biddle & Reath LLP regarding Tort Law Reform in Pennsylvania:

In our June 2011 Newsletter, we discussed the status of important pending legislation in Pennsylvania (the Fair Share Act) designed to eradicate the common law doctrine of joint and several liability.  As of the date of that article, the Pennsylvania House of Representatives approved the Fair Share Act (H.B. 1), and the Act was before the Pennsylvania Senate for consideration.  After extensive debate, the Senate ultimately approved a bill substantively identical to H.B. 1.

On June 28, 2011, Governor Tom Corbett signed the Fair Share Act into law, effective immediately.  The Fair Share Act, (42 Pa. Cons. Stat. § 7102), provides for proportionate share liability among joint tortfeasors and eliminates the common law doctrine of joint and several liability in all but a few limited situations.  Under the new law, each defendant is liable for “that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).”  42 Pa. Cons. Stat. § 7102(a.1)(1).  Joint and several liability still applies where there is an intentional misrepresentation, an intentional tort, a claim under section 702 of the Hazardous Sites Cleanup Act, a violation of section 497 of the Liquor Code or where a defendant is liable for 60% or greater of the total liability apportioned to all parties.  42 Pa. Cons. Stat. § 7102(a.1)(3).

The Fair Share Act is a significant victory for product manufacturers, insurance companies and other businesses who are often hauled into litigation because of their “deep pockets” even if they might be only minimally liable.  Reactions from these groups has been overwhelmingly positive.  Pennsylvania Chamber of Business and Industry Vice President Gene Barr commented that the Fair Share Act “restores fairness and predictability to the state’s legal system, encouraging business investment and job growth.”1 The Chairman of the Insurance Agents & Brokers of Pennsylvania further praised the new law:  “The act is a win for consumers, businesses and the insurance industry, which all carry the financial burdens of such a litigious environment.”2

Conclusion

As a practical matter, passage of the Fair Share Act will likely decrease the frequency “deep pocket” defendants with minimal liability are brought into litigation.  Even if such defendants are joined in litigation, the Fair Share Act will reduce the possibility of inequitable judgments.  As time passes, product manufacturers, insurance companies and other business who are often co-defendants in various litigations will continue to see the benefits of this significant tort reform.

 

1 Press Release, Gov. Corbett signs Chamber members’ No. 1 lawsuit abuse reform priority (June 28, 2011) (on file with author and available at: http://www.pachamber.org/www/news/press_releases/2011/Gov%20Corbett%20signs%20Chamber%20members%20No%201%20lawsuit%20abuse%20reform%20priority.php)

 

2 Press Release, IA&B applauds Pennsylvania lawsuit-abuse reform (June 28, 2011) (on file with author and available at:  http://www.iabgroup.com/press_center/releases/2011/06_28_tort_reform.html).


©2012 Drinker Biddle & Reath LLP

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Otsuka v. Sandoz – Motivation Trumps Structure

An article by Warren Woessner of Schwegman, Lundberg & Woessner, P.A. about Otsuka v. Sandoz recently appeared in The National Law Review:

The recent decision of the Fed. Cir. in Otsuka v. Sandoz, App. No. 2011-1126, -1127 (Fed. Cir. May 7, 2012) continues the courts admirable work in defining obviousness post-KSR. This case revisits the standards involved in making out a prima-facie case of structural obviousness. What is particularly interesting in this decision is the weight – or lack thereof – that the court gave to evidence of therapeutic utility of the closest prior art compound. In fact, the court applied the fairly obscure maxim of patent law articulated forty years ago In re Steminski, 444 F.2d 581 (CCPA 1971). John L. White, in Chemical Patent Practice, summarized the holding of Steminski as part of his discussion of the “Hass-Henze Doctrine”:

“The [CCPA] concluded that because the characteristics normally possessed by members of a homologous series [e.g., differing by only one methylene group] are principally the same, varying gradually from member to member [e.g., methyl, ethyl, propyl, butyl, etc], chemists knowing the properties of one member of a series would in general know what to expect in adjacent members so that a mere difference in degree is not the marked superiority which will ordinarily remove the unpatentability of adjacent homologs of old substances. Contra, where no use for the prior art compound is known [citing Steminski].”

Sandoz was trying to invalidate an anti-schizophrenic drug, aripiprazole, marketed by Otsuka as Abilify. The court abbreviated its structure by referring to it as a 2,3-dichlorophenylbutoxy compound. Sandoz et al. were trying to invalidate the claim to this compound in US Pat No. 5,006,528 over an earlier patent that disclosed the 2,3-dicholorphenylpropoxy analog of Abilify (a butoxy compound). Not only is the prior art compound  a homolog of Abilify, but the prior art patent disclosed a laundry list of utilities, including “antischizophrenia agents”. Many other structurally more remote analogs were disclosed, and three others were discussed in detail in the opinion, but the appellant/defendants must have felt pretty confident, even though the district court ruled that the patent was unobvious.

No such luck! The Fed. Cir. discussed the “lead compound concept” at length and stated that: “Absent a reason or motivation based on such prior art evidence [of pertinent properties], mere structural similarity between a prior art  compound and the claimed compound does not inform the lead compound selection….See KSR [citation omitted] (‘A fact finder should be aware, of course, of the distortion caused by hindsight bias and must be cautious of arguments reliant upon ex post reasoning.’)” Slip op. at 18-19. In other words, structural similarity, taken alone is not sufficient to establish obviousness.

But wasn’t there data beyond the “naked” structure of the 2.3-dichlorophenyl propoxy prior art homolog? Citing Takeda, 492 F.3d at 1357 and Pfizer, 480 F.3d at 1361, the court fell back on the rule that the art worker must be motivated to use the teachings of the reference to achieve the claimed invention and had a reasonable expectation of success. The court focused on the generality of the prior art disclosure of utility and the primitive nature of this area of pharmacology prior to Otsuka’s invention of Abilify: “At the relevant time, there were no carbostyril compounds that were marketed as antipsychotics or were publicly known to have potent antipsychotic activity with minimal side effects.”So reasonable expectation of success probably carried the day (or the lack thereof), and the ‘528 patent remains valid. Apart from the revival of Steminski, I was heartened by the number of times that the court criticized defendants’ use of what the court(s) considered to be hindsight. For instance, defendants tried to argue that Otsuka’s advance involved “a short timeline”. The Fed. Cir. replied:

“The inventor’s own path itself never leads to a conclusion of obviousness; that is hindsight. What matters is the path the [POSA] would have followed, as evidenced by the pertinent prior art…the district court’s careful analysis exposed the Defendants’ obviousness case for what it was—a poster child for impermissible hindsight reasoning.”

Not just pretty words, beautiful ones!

© 2012 Schwegman, Lundberg & Woessner, P.A.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Rosetta Stone v. Google: No Easy Exit for Google from AdWords Trademark Suits

An article about Rosetta Stone v. Google written by J. Roger Williams, Jr. of Andrews Kurth LLP recently appeared in The National Law Review:

Rosetta Stone, Inc., which provides technology-based language learning products and services, sued Google in the U.S. District Court for the Eastern District of Virginia for direct and indirect trademark infringement and trademark dilution arising out of Google’s sale of Rosetta Stone’s trademarks as keywords in Google’s AdWords program. Google triumphed in the trial court, with the District Court granting summary judgment in favor of Google on all claims. Earlier this month, however, in Rosetta Stone, Inc. v. Google, Inc.,[1] the U.S. Court of Appeals for the Fourth Circuit reversed the ruling and remanded the case for further proceedings on all trademark claims. For Google, the ruling means that it has no easy way to exit any trademark case arising out of its AdWords program. For brand owners, the ruling provides a road map for how to hold e-commerce web sites (Google, eBay) responsible for counterfeiters who advertise on the web site.

The primary issue in Rosetta Stone’s claim of direct trademark infringement was whether the Sponsored Links generated by Google’s AdWords Program create a likelihood of confusion. The District Court held that the only meaningful “digits of confusion” were Google’s intent in auctioning the keywords, the evidence of actual confusion, and the sophistication of the consuming public; and on each of these elements Rosetta Stone had failed to provide sufficient evidence to defeat summary judgment. The Fourth Circuit, after intense scrutiny of the evidence, disagreed with the trial court and held that there was sufficient evidence on each of these factors to force a trial.

The court’s analysis on the “intent” issue is remarkable. The record contained evidence of internal business studies done by Google that suggested that there would be “significant source confusion among Internet searchers when trademarks were included in the title or body of the advertisements.”  Although the Rosetta Stone marks were not involved in these studies, the Fourth Circuit nevertheless held that these studies provided sufficient evidence “that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from its use of the marks.” Because Google’s studies were not specific to the Rosetta Stone marks, the reasoning of this holding appears applicable to every brand owner that asserts a trademark infringement claim against Google over its use of AdWords. In other words, the opinion indicates that any trademark plaintiff may be able to defeat summary judgment for Google on the “likelihood of confusion” issue by showing that Google was provided with evidence that confusion was “very likely.”

Google also gave up its win on the “functionality” doctrine, which holds that a functional product feature cannot be trademarked or the subject of a trademark infringement suit. Finding that the trademarks used as keyword triggers are functional because they are essential to the functioning of Google’s search service, the District Court had granted summary judgment for Google on this defense. The Fourth Circuit reversed, reasoning that the functionality doctrine affords no protection to Google because Rosetta Stone, the mark owner, did not use the marks as a functional product feature.

Also reversed was Google’s summary judgment on Rosetta Stone’s claim of contributory infringement, i.e., Rosetta Stone’s claim that Google is liable for trademark infringement by the advertisers who directly infringe Rosetta Stone’s marks in the Sponsored Links. The central issue was the evidence that Rosetta Stone had notified Google of approximately 200 instances of specific Sponsored Links advertising counterfeit Rosetta Stone products and that Google nevertheless continued to allow the very same advertisers to purchase Rosetta Stone marks to trigger Sponsored Links for other web sites owned by the advertisers. The trial court was “unpersuaded” that this evidence met the legal standard for contributory infringement set by the Second Circuit in its Tiffany v. eBay decision.[2]  In theTiffany case, the Second Circuit held that eBay was not contributorily liable for trademark infringement despite its general knowledge that sellers were selling counterfeit Tiffany products on eBay. The major difference between the facts in the two cases is that Tiffany’s demand letters, in Tiffany v. eBay, did not identify particular sellers who Tiffany thought were then offering or would offer counterfeit goods, whereas Rosetta Stone’s notification to Google, in Rosetta Stone v. Google, apparently did identify particular sellers who were offering or were likely to offer counterfeit products. This evidence, according to the court of appeals, sufficed to force a trial on the issue of whether Google contributed to trademark infringement by continuing to supply its services to known infringers.

In any event, the Fourth Circuit’s reasoning has clear practical implications for brand owners who are fighting counterfeiters: Diligently provide notice to the e-commerce site of the identity and web site of each counterfeiter who is or might be selling counterfeit products.

Not all the news was bad for Google. The holding that Google was not vicariously liable for infringement by counterfeiters was affirmed; and although Rosetta Stone is going to get its day in court, nothing in the Court of Appeals’ holding suggests that Rosetta Stone will be able to prevail at trial. Even so, this ruling was a significant setback for Google. Google, understandably, has been searching for a “safe harbor” to avoid entanglement in trademark disputes between online advertisers and brand owners over the advertiser’s use of the brand owner’s mark in Sponsored Links.  One potential safe harbor for Google has already been eliminated by the Second Circuit in its 2010 holding in Rescuecom v. Google that Google’s sale of keywords constituted a trademark “use in commerce.”[3]  It appeared that the District Court’s ruling in Rosetta Stone had given Google several additional “safe harbors” under the theories that Google’s mere sale of keywords did not create a likelihood of confusion, that Google did not contribute to infringement by supplying its services to known infringers, that Google’s keywords were merely functional, and that Google’s sale of keywords fell within the “fair use” exception to dilution; but now the Fourth Circuit has rejected the notion that any of these defenses shields Google as a matter of law from trademark liability for its AdWords program. For the foreseeable future, Google has no easy exit from any trademark suit based on its AdWords program.

1. Rosetta Stone, Inc. v. Google, Inc., __ F.3d. __, 2012 WL 1155143 (4th Cir. April 9 2012).

2. Tiffany Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010).

3. Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009).

© 2012 Andrews Kurth LLP

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.

Michigan Court of Appeals Issues Opinion Affecting Mortgages Foreclosed by Advertisement

The National Law Review published an article by Randall J. Groendyk of Varnum LLP regarding Mortgage Foreclosures:

Varnum LLP

The Michigan Court of Appeals has issued important opinion affecting foreclosure of mortgages by advertisement.

Michigan law prohibits starting a foreclosure by advertisement if a lawsuit has already been filed to recover payment of “the debt” secured by the mortgage.  Many have understood this law to mean that while a mortgagee may not file a lawsuit to recover a debt secured by a mortgage and at the same time foreclose the mortgage by advertisement, the mortgagee could simultaneously file a lawsuit against a guarantor based on a guaranty of the debt while at the same time foreclosing the mortgage by advertisement.  However, the recent Court of Appeals decision held that a bank could not foreclose by advertisement on a mortgage when at the same time it had filed suit against a guarantor.

The Court based its decision on the fact that the underlying loan documents contained language which defined “the debt” to include any guarantees, and held the bank violated Michigan law by foreclosing the mortgage by advertisement at the same time it was suing the guarantors.  The Court looked at the entire loan package, and not just the mortgage to reach its decision.  As a result, the Court held that the bank could not proceed with the foreclosure by advertisement.  Under the Court’s ruling, mortgagees may not foreclose a mortgage by advertisement while at the same time filing suit against guarantors.

© 2012 Varnum LLP

Attendance May be an Essential Function of the Job

This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really isessential.

So begins the United States Court of Appeals for the Ninth Circuit in Samper v. Providence St. Vincent Medical Center.

The Samper plaintiff, a neonatal nurse in the defendant-hospital’s Neonatal Intensive Care Unit (NICU), suffered from fibromyalgia which, she claimed, limited her sleep and caused her chronic pain.  The nurse asked the hospital to accommodate this disability by allowing her to miss work whenever she was having a “bad day.”  After years of unacceptable absenteeism what the Court described as the hospital’s “Herculean efforts” to accommodate the plaintiff, she was terminated.  She sued the hospital, claiming that it failed to provide her with a reasonable accommodation for her disability.

The hospital did not dispute that the plaintiff was disabled, that she had the requisite technical skills for the job, or that she suffered an adverse employment action.  The hospital argued, however, that although the plaintiff possessed the technical qualifications of the job, she was unable to perform the essential function of showing up for work.

The burden was on the hospital to establish which functions were “essential” to the job.  Arguing that the hospital did not meet its burden to show that attendance was an essential function of the job, the plaintiff cited numerous cases for the proposition that regular attendance was not required.  For example, she cited to cases where “workers were basically fungible with one another, so that it did not matter who was doing the job on any particular day,” (dockworkers) as well as cases where the work could be performed remotely (medical transcriptionists).

The Court easily distinguished those cases, however, from cases like this one, where irregular attendance compromises essential functions.  Indeed, the Court stated:

To imagine a NICU facility, responsible for the emergency care of infants, operating effectively in such a manner, stretches the notion of accommodation beyond any reasonable limit. An accommodation that would allow [the plaintiff] to “simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable” on its face. Internal citations omitted.

Although the Court found in favor of the defendant-hospital, and held that regular attendance was an essential function of Ms. Samper’s job, it left open the possibility that regular attendance may not be an essential function for other jobs or jobs in other industries.  Nevertheless, the Court was crystal clear that an accommodation is not reasonable if it seeks an exemption from an essential function.

The case is noteworthy for several reasons.  First, while underscoring that the burden remains on the defendant to prove which functions of the job are “essential” functions, the case shows that in certain types of jobs an employer can make a compelling case that attendance is an essential function. Second, the case is a good illustration of how an employer’s initial efforts in “going the extra mile” to accommodate an employee’s disability can redound to the employer’s advantage when it ultimately decides that the disability can no longer be accommodated.

©1994-2012 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

NY City Bar White Collar Crime Institute

The National Law Review is pleased to bring you information about the inaugural White Collar Crime Institute, on Monday, May 14, 2012 from 9 a.m. to 5 p.m. in New York City, NY.

This excellent review of developments in criminal and regulatory enforcement has been organized by our White Collar Criminal Law Committee, chaired John F. Savarese of Wachtell Lipton Rosen & Katz. Our program will feature keynote addresses by Preet Bharara, United States Attorney for the Southern District of New York, and Eric Schneiderman, Attorney General of the State of New York. The panels on key legal and strategic issues will include senior government officials, federal judges, academics, general counsel of leading New York based corporations and financial institutions, and top practitioners in the field. We have crafted the program to maximize their value for white collar practitioners and corporate counsel.

Plenary sessions will focus on:
  • Providing perspectives of top general counsel concerning the challenges they confront in this new era of expanded corporate prosecutions
  • Discussions of the increasing importance of media coverage in these cases and its impact on prosecutorial decision-making.

Break-out sessions will address:

  • Techniques for winning trials
  • Ethical issues presented by white-collar corporate investigations
  • Trends in white-collar sentencing, and
  • The special challenges of handling cross-border investigations.