The National Law Forum

Arguing Internet Availability to Establish Copyright Infringement Is Bananas

In an unpublished opinion, the US Court of Appeals for the Eleventh Circuit affirmed a district court’s decision finding that a pro se Californian artist failed to establish that an Italian artist had reasonable opportunity to access the copyrighted work simply because it was available to view on the internet. Morford v. Cattelan, Case No. 23-12263 (11th Cir. Aug. 16, 2024) (Jordan, Pryor, Branch, JJ.) (per curiam).A plaintiff alleging copyright infringement may show factual copying by either direct or indirect evidence showing “that the defendant had access to the copyrighted work and that there are probative similarities between the allegedly infringing work and the copyrighted work.” To do so, however, the copyright owner must establish a nexus between the work and the defendant’s alleged infringement. Mere access to a work disseminated in places or settings where the defendant may have come across it is not sufficient.

Joe Morford’s Banana and Orange and Maurizio Cattelan’s Comedian both “involve the application of duct tape to a banana against a flat surface” (see images below from the court decision’s appendix). Cattelan’s Comedian went viral and sold for more than $100,000 at Miami’s Art Basel. Morford claimed that Comedian was a copy. The district court found that Morford failed to show that Cattelan had reasonable opportunity to access Banana and Orange and thus could not establish a copyright claim. Morford appealed.

Orange and Banana, Comedian

On appeal, Morford argued that because he could show striking similarity between Banana and Orange and Comedian, he was not required to proffer evidence of access to show copyright infringement. In the alternative, he argued that he could show substantial similarity and that Cattelan had reasonable opportunity to access Banana and Orange as it was widely disseminated and readily discoverable online.

The Eleventh Circuit explained that in circuits adopting a widespread dissemination standard, that standard requires showing that the work enjoyed “considerable success or publicity.” Morford showed that Banana and Orange was available on his public Facebook page for almost 10 years and featured on his YouTube channel and in a blog post, with views in more than 25 countries. But Banana and Orange’s availability on the internet, without more, was “too speculative to find a nexus” between Cattelan and Morford to satisfy the factual copying prong of a copyright infringement claim, according to the Court.

The Eleventh Circuit also found that Morford failed to meet the high burden of demonstrating that the original work and accused infringement were so strikingly similar as to establish copying. Such similarity exists if the similarity in appearance between the two works “is so great that [it] precludes the possibility of coincidence, independent creation or common source,” but identical expression does not necessarily constitute infringement. In this analysis, a court addresses the “uniqueness or complexity of the protected work as it bears on the likelihood of copying.” Morford argued that he established striking similarity based on the “same two incongruous items being chosen, grouped, and presented in the same manner within both works.” Although the two incongruous items in both works were similar (i.e., a banana and duct tape), the Court decided that there were sufficient differences between Banana and Orange and Comedian to preclude a finding of striking similarity. Banana and Orange had both a banana and an orange held by duct tape, while Comedian only contained a banana.

“Is SEO Dead?” Why AI Isn’t the End of Law Firm Marketing

With the emergence of Artificial Intelligence (AI) technology, many business owners have feared that marketing as we know it is coming to an end. After all, Google Gemini is routinely surfacing AI-generated responses over organic search results, AI content is abundant, and AI-driven tools are being used more than ever to automate tasks previously performed by human marketers.

But it’s not all doom and gloom over here—there are many ways in which digital marketing, including Search Engine Optimization (SEO) —is alive and well. This is particularly true for the legal industry, where there are many limits to what AI can do in terms of content creation and client acquisition.

Here’s how the world of SEO is being impacted by AI, and what this means for your law firm marketing.

Law Firm Marketing in the Age of AI

The Economist put it best: the development of AI has resulted in a “tsunami of digital innovation”. From ChatGPT’s world-changing AI model to the invention of “smart” coffee machines, AI appears to be everything. And it has certainly shaken up the world of law firm marketing.

Some of these innovations include AI chatbots for client engagement, tools like Lex Machina and Premonition that use predictive analytics to generate better leads, and AI-assisted legal research. Countless more tools and formulas have emerged to help law firms streamline their operations, optimize their marketing campaigns, create content, and even reduce overhead.

So, what’s the impact?

With AI, law firms have reduced their costs, leveraging automated tools instead of manual efforts. Legal professionals have access to more data to identify (and convert) quality leads. And it’s now easier than ever to create content at volume.

At the same time, though, many people question the quality and accuracy of AI content. Some argue that AI cannot capture the nuance of the human experience or understanding complex (and often emotional) legal issues. Even more, AI-generated images and content often lack a personalized touch.

One area of marketing that’s particularly impacted by this is SEO, as it is largely driven by real human behavior, interactions, and needs.

So, is SEO Dead?

Even though many of the tools and techniques of SEO for lawyers have changed, the impact of SEO is still alive and well. Businesses continue to benefit from SEO strategies, allowing their brands to surface in the search results and attract new customers. In fact, there may even be more opportunities to rank than ever before.

For instance, Google showcases not only organic results but paid search results, Google Map Pack, Images, News, Knowledge Panel, Shopping, and many more pieces of digital real estate. This gives businesses different content formats and keyword opportunities to choose from.

Also, evolution in the SEO landscape is nothing new. There have been countless algorithm changes over the years, often in response to user behavior and new technology. SEO may be different, but it’s not dead.

Why SEO Still Matters for Law Firms

With the SEO industry alive and well, it’s still important for law firms to have a strong organic presence. This is because Google remains the leading medium through which people search for legal services. If you aren’t ranking high in Google, it will be difficult to get found by potential clients.

Here are some of the many ways SEO still matters for law firms, even in the age of AI.

1. Prospective clients still use search engines

Despite the rise of AI-based tools, your potential clients rely heavily on search engines when searching for your services. Whether they’re looking for legal counsel or content related to specific legal issues, search engines remain a primary point of entry.

Now, AI tools can often assist in this search process, but they rarely replace it entirely. SEO ensures your firm is visible when potential clients search for these services.

2. Your competitors are ranking in Search

Conduct a quick Google search of “law firm near me,” and you’ll likely see a few of your competitors in the search results. Whether they’re implementing SEO or not, their presence is a clear indication that you’ll need some organic momentum in order to compete.

Again, potential clients are using Google to search for the types of services you offer, but if they encounter your competitors first, they’re likely to inquire with a different firm. With SEO, you help your law firm stand out in the search results and become the obvious choice for potential clients.

3. AI relies on search engine data

The reality is that AI tools actually harness search engine data to train their models. This means the success of AI largely depends on people using search engines on a regular basis. Google isn’t going anywhere, so AI isn’t likely to go anywhere, either!

Whether it’s voice search through virtual assistants or AI-driven legal content suggestions, these systems still rely on the vast resources that search engines like Google organize. Strong SEO practices are essential to ensure your law firm’s website is part of that data pool. AI can’t bypass search engines entirely, so optimizing for search ensures your firm remains discoverable.

4. AI can’t replace personalized content

Only as a lawyer do you have the experience and training to advise clients on complex legal issues. AI content — even if only in your marketing — will only take you so far. Potential clients want to read content that’s helpful, relatable, and applicable to their needs.

While AI can generate content and provide answers, legal services are inherently personal. Writing your own content or hiring a writer might be your best bet for creating informative, well-researched content. AI can’t replicate the nuanced understanding that comes from a real lawyer, as your firm is best equipped to address clients’ specific legal issues.

5. SEO is more than just “content”

In the field of SEO, a lot of focus is put on content creation. And while content is certainly important (in terms of providing information and targeting keywords), it’s only one piece of the pie. AI tools are not as skilled at the various aspects of SEO, such as technical SEO and local search strategies.

Local SEO is essential for law firms, as most law firms serve clients within specific geographical areas. Google’s algorithm uses localized signals to determine which businesses to show in search results. This requires an intentional targeting strategy, optimizing your Google Business Profile, submitting your business information to online directories, and other activities AI tools have yet to master.

AI doesn’t replace the need for local SEO—if anything, AI-enhanced local search algorithms make these optimizations even more critical!

Goodbye AI, hello SEO?

Overall, the legal industry is a trust-based business. Clients want to know they work with reputable attorneys who understand their issues. AI is often ill-equipped to provide that level of expertise and personalized service.

Further, AI tools have limitations regarding what they can optimize, create, and manage. AI has not done away with SEO but has undoubtedly changed the landscape. SEO is an essential part of any law firm’s online marketing strategy.

AI is unlikely to disappear any time soon, and neither is SEO!

You Are Sponsoring a Foreign National Employee for Permanent Residency, Can You Clawback Some of the Fees?

Companies usually hire a foreign national who requires visa sponsorship because they cannot find a U.S. worker with those skill sets, which is frequently in the STEM fields. However, visa sponsorship comes with significant costs to the employer. Employers may be able to recover a portion of the immigration sponsorship fees by implementing what are called “clawback” provisions into their employment agreements. Clawback provisions are terms in the employment agreements that, in the event of a resignation by the employee before a certain date, require the employee to reimburse the employer for a portion of the costs or fees associated with his or her visa sponsorship.

Not All Visa Fees Can Be Clawed Back

But first, it’s important to understand which sponsorship fees and costs are potentially recoverable and which are prohibited from being “clawed back.”

H-1B Petition: Because these visas have a prevailing wage set by the U.S. Department of Labor (DOL) a H-1B employer may not clawback any attorney fees or government filing fees used to obtain the H-1B petition approval by U.S. Citizenship & Immigration Services (USCIS).
Other Visas: The same restriction applies to the Australian E-3 visa and the Singapore/Chile H-1B1 visas as well as the H-2A, H-2B, and J-1 visas.
PERM Labor Certification Sponsorship for Permanent Residency: PERM Is the most common method for an employer to sponsor a foreign national employee for permanent residency (green card). It is done by conducting recruitment and proving to DOL that no qualified U.S. worker applied for the position. An employer is required to pay for all of the fees and costs associated with the PERM process.
I-140 Immigrant Petition: After DOL certifies the PERM application and agrees that no qualified U.S. worker is available, the employer must file an I-140 immigrant petition with USCIS. The attorney fees and costs for the I-140 may be clawed back. The purpose of the I-140 immigrant petition is for the employer to prove to USCIS that the foreign national has the required education, experience and special skills outlined in the PERM filing with DOL. In addition, the I-140 includes financial documents showing that the employer has the ability to pay the offered wage.
I-485 Adjustment of Status to Permanent Resident filing: The employer may clawback the fees and costs associated with the I-485 adjustment of status application (green card).

Practice Pointers

Still At Will: The clawback provisions should be in writing. It should also indicate that the employment is still at will, if applicable.
Final Paycheck: The majority of states, including California, do not allow an employer to deduct anything from a final paycheck without the express consent of the employee. This includes fees and costs pursuant to the clawback provision.
Deterrence: Given that an employer cannot clawback from the final paycheck and suing a former employee to collect the amount in controversy is not always practical, a clawback provision can be used as a deterrence for early departure.

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Major Changes Coming for Medicare Drug Program: Negotiated Prices, Cap on Out of Pocket and Creditable Coverage

Some major changes are on the way for Medicare beneficiaries regarding drug costs. Due to the Inflation Reduction Act, the federal government now will have the ability to negotiate the prices of drugs for Medicare beneficiaries. After an initial set of negotiations, new lower prices have been announced for 10 expensive drugs. The discounts for some blood thinners and drugs for arthritis, cancer, diabetes, and heart failure result in costs as much as 79% lower. The new drug prices will go into effect starting in 2026. Just these 10 drugs make up about 20% of the program’s drug spending, so the impact is huge for the medicinal market. The federal government will turn to negotiating another batch of drugs in 2025, with 15-20 drugs targeted annually.

Another major change under the Inflation Reduction Act will be the out-of-pocket maximum under all Medicare Part D plans of $2,000 per year beginning January 2025. Beneficiaries will be able to prorate the cost monthly or pay it as the costs are incurred. This will be a game changer for many Medicare beneficiaries with high drug costs. In addition, certain drugs covered by Part B (typically those administered in a doctor’s office or hospital) might incur a co-pay of less than the standard 20% if the prices have increased faster than inflation. The drugs subject to reduced copays will be published quarterly.

These changes may have an unintended consequence for Medicare-eligible individuals who are still working and therefore enrolled in employer plans, or other individuals enrolled in retiree or other private plans. Those who are Medicare eligible but are enrolled in non-Medicare plans must show that they have “creditable” coverage under Medicare standards. A plan is “creditable” if coverage is at least as good as or better than the Medicare drug benefit. Creditable coverage is based on a test that measures whether the expected amount of paid claims is at least as much as the standard Part D benefit. Non-Medicare plans must advise enrollees if their coverage is considered “creditable.” It is crucial for coverage to be considered “creditable;” otherwise, the Medicare beneficiary can be subject to a Late Enrollment Penalty (LEP) for each month they are not enrolled in a plan providing creditable coverage.

It is unclear whether the $2,000 cap coming to Part D plans or other changes in drug coverage will mean that non-Medicare plans that do not match the changes will continue to be considered creditable in the future. Beneficiaries need to be aware of this important issue when considering their coverage options.

In Rare Summer Opinion, Supreme Court Follows Sixth Circuit’s Lead

In Department of Education v. Louisiana, the Supreme Court issued a rare August opinion to maintain two preliminary injunctions that block the Department of Education’s new rule. That rule expands Title IX to prevent sexual-orientation and gender-identity discrimination. State coalitions brought challenges; district courts in Louisiana and Kentucky enjoined the rule during the litigation; the Fifth and Sixth Circuits denied the government’s requests to stay the injunctions, nor would the Supreme Court intercede for the government.

All the Justices agreed that aspects of the rule warranted interim relief, most centrally the “provision that newly defines sex discrimination” to include sexual-orientation and gender-identity discrimination. But because the district courts enjoined the entirety of the rule, the scope of relief proved divisive. A narrow majority agreed to leave the broad injunctions in place, while four Justices in dissent argued to sever the suspect aspects of the rule and allow the remainder of the rule to take effect. With emphasis on the “emergency posture,” the majority explained that the government had not carried its burden “on its severability argument.”

Justice Sotomayor’s dissent proposed limiting the injunctions to just the three challenged aspects of the rule. The dissent focused on the “traditional” limits on courts’ power to fashion “equitable remedies.” That Justice Gorsuch joined Justices Sotomayor, Kagan, and Jackson should come as no surprise. Justice Gorsuch has harped on limiting equitable remedies to party-specific relief (e.g. Labrador v. Poe); cast doubt on severability doctrine (Barr v. AAPC (opinion concurring in part and dissenting in part)); and, of course, authored the landmark Bostock v. Clayton County decision that interpreted Title VII to protect against sex discrimination in much the same way the Department wishes to interpret Title IX.

This decision is an unreliable forecast of the Court’s view of what Title IX sex discrimination encompasses. The Court unanimously agreed to table the debate over the Department’s new definition of sex discrimination while the lower courts proceed “with appropriate dispatch.” The case concerned the status of the rest of the rule as that litigation continues.

A truer tell on the merits is the Sixth Circuit panel’s order denying the government’s stay request. The panel found it “likely” “that the Rule’s definition of sex discrimination exceeds the Department’s authority.” Preliminarily at least, the court thought it unlikely that Title IX—last amended in 1972—addresses sexual-orientation and gender-identity discrimination. The Sixth Circuit has been reluctant “to export Title VII’s expansive meaning of sex discrimination to other settings”—and so it was here.

If “past is not always prologue,” still sometimes it is. The Sixth Circuit panel divided on the injunction’s scope just like the Supreme Court. Chief Judge Sutton and Judge Batchelder formed the majority, finding that the three “central provisions of the Rule . . . appear to touch every substantive provision.” Saddling school administrators with new regulatory requirements on the eve of the new schoolyear tipped the equities toward enjoining the full rule. Judge Mathis dissented because the injunction disturbed provisions of the rule “that Plaintiffs have not challenged.”

For now, the Department’s new rule yields to the old one. That rule, too, is being litigated in the Sixth Circuit because guidance documents say the Department will interpret Title IX the same way Bostock interpreted Title VII. See Tennessee v. Dep’t of Educ. and this coverage at the Notice & Comment blog. To close out with some Supreme Court trivia—this marks its first mid-summer opinion since Alabama Association of Realtors v. DHHS in 2021, where the Court ended the Biden Administration’s Covid-era moratorium on evictions. Before that may be the Court’s September 2012 decision Tennant v. Jefferson County Commission involving a challenge to West Virginia’s congressional districts.

Litigation Against Pharmacy Benefit Managers

Pharmacy Benefit Managers (PBMs) play a large role in the pharmaceutical medication distribution industry and have faced a great deal of litigation in recent years. This blog entry looks at cases against PBMs brought under the U.S. False Claims Act (FCA), as well as those brought as class actions on behalf of various kinds of groups.

FCA Actions

Cases brought against PBMs under the FCA typically involve allegations of fraudulent billing practices, false statements, and kickback schemes. These cases often address whether PBMs have caused false claims to be submitted to government healthcare programs, such as Medicaid, and whether they have engaged in practices that violate the FCA and other related statutes.

First, PBMs may violate the FCA by failing to pay reimbursements to individuals, other business entities, and/or state or federal agencies. In United States v. Caremark, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the district court erred in finding that the Defendant PBM did not impair an obligation to the government within the meaning of the FCA by unlawfully denying reimbursement requests from state Medicaid agencies.

Second, PBMs may violate the FCA by billing individuals, other business entities, and/or state or federal agencies for services that were never rendered. In United States ex rel. Hunt v. Merck-Medco Managed Care, L.L.C., the U.S. District Court for the Eastern District of Pennsylvania addressed allegations that the PBM billed for services not rendered and fraudulently avoided contractual penalties it would otherwise have had to pay. The Court found that the Complaint sufficiently alleged that the PBM caused false claims to be presented to an agent of the United States, satisfying the statutory requirements of the FCA.

Third, PBMs may violate the FCA by overcharging individuals, other business entities, and/or state or federal agencies for services. For example, in two cases that were settled in 2019 in the Western District of Texas and the Northern District of Iowa, two subsidiaries of Fagron Holding USA LLC settled with the U.S. for over $22 million in connection with such a scheme. In the first, Fagron subsidiary Pharmacy Services Inc. (PSI) and its affiliates were accused of submitting fraudulent compound prescription claims to federal healthcare programs, manipulating pricing through sham insurance programs, paying kickbacks to physicians, and illegally waiving copays. In the second, Fagron subsidiary B&B Pharmaceuticals Inc. faced claims under the FCA for setting an inflated average wholesale price for Gabapentin.

Finally, PBMs may violate the FCA by engaging in kickback schemes with drug manufacturers or other entities. These schemes may also involve waiving copays and the provision of unnecessary services to patients. One notable case involves AstraZeneca LP, a pharmaceutical manufacturer, which agreed to pay $7.9 million to settle allegations that it engaged in a kickback scheme with Medco Health Solutions, a PBM. The allegations included providing remuneration to Medco in exchange for maintaining exclusive status of AstraZenica’s heartburn relief drug Nexium on certain formularies, which led to the submission of false claims to the Retiree Drug Subsidy Program. Similarly, Sanford Health and its associated entities agreed to pay $20.25 million to resolve FCA allegations related to false claims submitted to federal healthcare programs. The allegations included violations of the Anti-Kickback Statute and medically unnecessary spinal surgeries, with one of Sanford’s top neurosurgeons receiving kickbacks from his use of implantable devices distributed by his physician-owned distributorship.

Class Actions

Class action cases against pharmacy benefit managers (PBMs) often involve allegations of deceptive practices, breach of fiduciary duty, and violations of contractual obligations. These cases typically involve issues such as the improper handling of rebates, kickbacks, inflated drug costs, and the failure to act in the best interest of plan participants.

First, PBMs may subject themselves to liability by failing to pass on negotiated rebates or other types of savings to their members. In Corr. Officers’ Benevolent Ass’n of the City of N.Y. v. Express Scripts, Inc., a union alleged that PBM managers failed to pass on negotiated rebates to its members, instead keeping them for their own benefit. The court found sufficient allegations to support claims of deceptive practices and breach of fiduciary duty, allowing these claims to proceed.

Second, and far more commonly, PBMs face liability for engaging in antitrust violations. Such liability typically arises when PBMs collude with one another to fix drug processes or otherwise improperly influence the market for medications and/or other medical services. For example, in In re Brand Name Prescription Drugs Antitrust Litig., a class of retail pharmacies alleged that drug manufacturers and wholesalers conspired to deny them discounts. The court found sufficient evidence of violations to proceed to trial. Similarly, in Independent Pharmacies vs. OptumRx, more than 50 independent pharmacies filed a class action lawsuit against OptumRx, a division of UnitedHealth Group, alleging that OptumRx failed to comply with state pharmacy claims reimbursement laws, leading to illegal price discrimination and reimbursement violations. Lastly, in Elan and Adam Klein, Leah Weav, et. al v. Prime Therapeutics, Express Scripts, and CVS Health, the Plaintiffs brought a action lawsuit against three major PBMs – Prime Therapeutics, Express Scripts, and CVS Health – on behalf of EpiPen purchasers with ERISA health plans for contributing to EpiPen price inflation through rebates and breaching their fiduciary duty to plan members.

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In short, because PBMs play such a large role in the pharmaceutical medication distribution industry, there are many ways that they can subject themselves to liability under the FCA, pursuant to a class action, or otherwise. As the place of PBMs in this marketplace continues to grow, we can expect that litigation against them will do likewise. Potential plaintiffs seeking to bring claims against a PBM should consult with an experienced attorney in order to determine all of the causes of action that may be available to them.

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¹United States v. Caremark, Inc., 634 F.3d 808 (5th Cir. 2011).
²United States ex rel. Hunt v. Merck-Medco Managed Care, L.L.C., 336 F. Supp. 2d 430 (E.D. Pa. 2004).
³ Corr. Officers’ Benevolent Ass’n of the City of N.Y. v. Express Scripts, Inc., 522 F. Supp. 2d 1132.
⁴In re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599.

(Employee) Therapy Anyone?

The recent WSJ article about employer-provided in-office therapy sessions raises some good points about destigmatizing mental health in the workplace and promoting overall wellness generally. But the article also reminds us about the risks of blurring lines between an employee’s personal and professional life and the potential dangers inherent in the spillover of confidential (personal, medical, and other information) in the workplace. I have written previously about the beneficial role performance evaluations may have as “talk therapy” in an employee’s career based upon the learning that comes with balanced feedback. But it seems to me that true talk therapy – undertaken by a licensed and trained professional in an appropriate diagnostic setting – does not belong in the workplace.

The article features an employer who provides an annual benefit of a dozen free on-site therapy sessions to its employees. While it is commendable to care about the whole employee, providing on-site therapy touches upon a few somewhat sensitive employment topics. The first concerns confidentiality of health information, which includes an employee’s decision to seek (or even not seek) medical treatment. The employer in the article was reported to have taken steps to provide a separate location for the therapy sessions so employees did not encounter each other during on-site therapy visits, as well as other privacy preservation measures. But the simple fact is that confidentiality is hard to guarantee for on-site employment activities. And even though GenX employees (and the generation of workers who follow them) do think differently about mental health and wellness than the generations preceding them, there is a real risk that an employee’s use of this benefit will become the topic of what used to be known as water cooler – now Slack – talk.

The other employment risk on-site therapy poses is the potential use of information that is disclosed during a therapy session. Ethical, licensing and medical rules govern what a therapist must and must not do with information learned about a patient, but what about information the therapist learns about an employer? This is particularly a concern if the information source and content is confirmed by several different employees and might be information that merits action (such as information suggesting that a manager is engaging in harassing or other actionable or illegal conduct). There is a reason employers follow guidelines when reports or complaints are made concerning such conduct. It is unclear how those guidelines should be followed if the contents of a therapy session are supposed to remain confidential, for good legal, therapeutic and ethical reasons.

It seems to me a far better approach for employers wishing to explore this benefit is to provide employees with a set amount of money (perhaps as part of a tax-advantaged benefit plan ) that the employee is encouraged to use at the employee’s discretion as part of well-being program designed to support all aspects of health (mental, physical and even financial fitness). That way therapy can be encouraged and supported, but kept separate in all other respects from the workplace. Therapy for all may be an excellent idea, but conducting it outside the confines of the workplace seems like a better one.

For more news on Employer Provided Therapy, visit the NLR Labor & Employment section.

Dependent Work Permits – Is the U.S. Catching Up with Other Immigration Destinations?

There are many ways in which the U.S. immigration system is lagging behind those of other countries. We still put physical visas in passports – something Australia stopped doing nearly 10 years ago when they converted to a purely electronic visa system. Our immigration system is predominantly paper-based, with limited options for electronic filings, an area where other countries have fully embraced modern solutions. We also lag behind in other areas including processing times, expedite options, digital nomad immigration pathways, and having an immigration system responsive to changing economic needs for workers in specific occupations and sectors.

For a long time, the U.S. also lagged behind other countries when it came to supporting the immigration of dual-career couples, but that has changed over the last 10 years. This evolution was recently reinforced by the decision in Save Jobs USA v. DHS.

Since 2015, H-4 dependent spouses have been eligible for employment authorization documents (EADs) if they meet certain criteria, including being eligible for a green card but for a long wait due to annual and per-country limitations on green card approvals; criteria most H-4 spouses do not meet until they have been in the US for several years. The plaintiff in Save Jobs USA challenged this extension of work authorization as an unlawful use of the executive power of the Department of Homeland Security (DHS). On August 2, 2024, the Court of Appeals for the D.C. Circuit ruled that this was a lawful use of DHS’s power. Absent an appeal to the Supreme Court, this ends the uncertainty over H-4 EADs. This ruling, combined with a USCIS announcement in April 2024 that extended H-4 EADs for up to 540 days for those waiting for their EADs to be renewed, means that nearly 100,000 H-4 spouses can now pursue careers without fearing unexpected gaps in work authorization.

In addition, since 2021, the US has not required EADs for certain E and L spouses. Although this is not widely known (our team often gets asked about it), starting in November 2021, U.S. immigration agencies began issuing documents that allowed these spouses to work based only on their I-94 entry document, without requiring a separate EAD application. This eliminated lengthy delays and gaps in work authorization that inhibited the ability of dual-career couples to continue their dual pursuits following a relocation to the U.S. With these developments, the US is slowly aligning with other similar economies around the world that allow dependent spouses to work automatically.

There is still more progress that can be made. Currently, the Permits Foundation, an advocacy group focused on “enabling dual careers in the global workplace” characterizes 35 countries as allowing spouses or partners to work freely. The U.S. is included on that list, but the foundation notes that spouses are only allowed to work in certain categories and that work authorizations are often subject to long delays. In the U.S., access to work authorization is not available to all types of dependents. H-4 spouses are excluded until their H-1B spouse reaches a certain point in the green card process (something that takes about 4 years for many, amounting to a major career gap for a trailing spouse). Spouses of J-1 visa holders still need to apply separately for an EAD. Spouses of F-1 student visa holders are not allowed to work, even during the one to three years of post-graduation work authorization granted to international graduates of U.S. universities. We also do not grant any immigration status to unmarried partners. Although many other countries including Canada, the UK, the Netherlands, and Australia, provide an immigration path for non-married partners, there is no option for that when an unmarried couple wants to relocate together to the US (resulting in some interesting conversations and sometimes resulting in the complete cancellation of a proposed relocation). Overall, expanding work authorization to married (and even unmarried) partners of the workers already employed in the US in various non-immigrant categories could be a boon to the labor market. Our team is often asked how they can find new sources of skilled an unskilled workers to fill open positions. Expanding this avenue of work authorization would enable this latent talent pool, many of whom are already here in the US, to enter the US workforce.

Bottom line, if you are an accompanying spouse in one of the limited categories of dependents who do not need separate employment authorization (E or L), rejoice. You are probably be able to work in the US without needing anything more than the entry document issued when you arrive. If you are not one of those lucky ones, review your options with immigration counsel, and hope the U.S. continues to catch up with other immigration destinations.

Federal Circuit Weighs in on Exceptional Case Determinations in Realtime Adaptive Streaming v. Sling TV and Dish

A recent Federal Circuit decision provided some additional insight into exceptional case determinations in patent infringement disputes. In Realtime Adaptive Streaming v. Sling TV, the Federal Circuit reviewed an award of attorneys’ fees granted to DISH and related Sling entities (collectively, DISH) by the United States District Court for the District of Colorado. Realtime Adaptive Streaming LLC v. Sling TV, L.L.C. , Fed. Cir., 23-1035, vacated 8/23/24.

History of Events

On August 31, 2017, Realtime Adaptive Streaming LLC sued DISH and related Sling entities for alleged infringement of U.S. Patent Nos. 8,275,897; 8,867,610; and 8,934,535. Early in the case, the Defendants filed motions to dismiss and motions for judgment on the pleadings, asking the district court to find the asserted claims invalid under § 101. The district court denied these motions.

In October 2018, the Central District of California issued an order finding Claims 15-30 of the ‘535 patent ineligible under § 101 (Google decision). In December 2018, a magistrate judge in the District of Delaware found Claim 15 of the ‘535 patent ineligible (Netflix decision). Shortly after that, the district court stayed the infringement litigation pending IPR proceedings.

During the IPR proceedings claims 1-14 of the ‘535 patent were found to be unpatentable on obviousness grounds. Realtime then withdrew its claims under the ‘535 patent.

The district court lifted the stay on January 15, 2021. Shortly after stay was lifted the USPTO rejected claim 1 of the ‘610 patent as obvious as part of an ex parte reexamination.

In February 2021, DISH sent Realtime a letter conveying its belief the ‘610 patent was invalid and expressing its intention to seek attorneys’ fees.

On July 31, 2021, the district court granted DISH’s motion for summary judgment of invalidity, finding Claims 1, 2, 6, 8-14, 16, and 18 of the ‘610 patent directed to ineligible subject matter under § 101 and ultimately granted DISH’s Motion for Attorneys’ Fees, highlighting six “red flags” that Realtime’s case was fatally flawed.

On May 11, 2023, the Federal Circuit affirmed the district court’s order concluding that the asserted claims of the ‘610 patent are directed to ineligible subject matter under § 101. On August 23, 2024, it issued its opinion on the appeal of the attorneys’ fees award under 35 U.S.C. § 285, vacating the district court’s opinion and remanding for further consideration.

Federal Circuit’s Analysis of the District Court’s Red Flags

The Federal Circuit reviewed each of the six red flags identified by the district court:

a) Google and Netflix decisions: The Federal Circuit agreed that these decisions, which found claims of a related patent ineligible, were significant red flags.

b) Adaptive Streaming decision: The Federal Circuit found that the district court erred in treating this as a red flag, as it involved different technology and lacked sufficient analysis to show the patent infringement claim was exceptionally meritless.

c) Board’s invalidation of the ‘535 patent: The Federal Circuit found that the district court failed to adequately explain how these decisions supported a finding of exceptionality.

d) Reexamination of the ‘610 patent: The Federal Circuit found that the district court’s analysis was lacking and failed to adequately explain how these decisions supported a finding of exceptionality.

e) DISH’s notice letter: The Federal Circuit found that the letter alone was not sufficient to trigger § 285 and support an exceptionality finding.

f) Expert analysis evidence: The Federal Circuit found that the district court erred in its justification of Dr. Bovik’s opinions as a red flag.

Notice Letter Insufficient

The notice letter from DISH was not considered sufficient to trigger § 285 and support an exceptionality finding for several reasons:

Limited analysis: The letter contained only two paragraphs dedicated to discussing the ineligibility of the asserted claims of the ‘610 patent. These paragraphs were described as “conspicuously short” and “riddled with conclusory statements” asserting similarities between the ‘610 patent claims and those of the ‘535 patent and the Adaptive Streaming patent.
Lack of specific comparisons: The letter did not provide any further analysis or specific comparisons to support its assertions about the similarities between the patents.
Insufficient notice: The court found that simply being on notice of adverse case law and the possibility that opposing counsel would pursue § 285 fees does not amount to clear notice that the ‘610 claims were invalid.
Potential for abuse: The court noted that if such a notice letter were sufficient to trigger § 285, then every party would send such a letter setting forth its complaints at the early stages of litigation to ensure that—if it prevailed—it would be entitled to attorneys’ fees.
Lack of follow-up: DISH did not follow up regarding its allegations after Realtime responded to the notice letter eleven days later.

The Federal Circuit concluded that without more substantive analysis or specific comparisons, the notice letter alone was not enough to put the patentee on notice that its arguments regarding ineligibility were so meritless as to amount to an exceptional case.

Conclusion

In conclusion, while the Federal Circuit agreed that some of the red flags identified by the district court were valid considerations, it found that others were not properly justified or explained. As a result, the court vacated the attorneys’ fees award and remanded the case for reconsideration consistent with its opinion.

The findings regarding the notice letter are not surprising. Patent cases may take a long time to develop and typically include an enormous amount of information. Both parties have a limited amount of information early in the case and so positions are staked out carefully. The court did not give an indication of what would be necessary to serve as adequate notice of the defects of a plaintiff’s patent assertion. It remains to be seen how the court treats the exceptional case analysis in light of the remand guidance from the Federal Circuit.

Boeing Whistleblower Continues to Raise Concerns

At the National Whistleblower Day celebration held on Capitol Hill on July 30, a Boeing whistleblower announced new documents which he claims further demonstrate shortcomings by Boeing around the manufacturing of the 737 Max which crashed in Ethiopia on March 10, 2019.

During his speech, Ed Pierson, the Executive Director of The Foundation for Aviation Safety, an aviation industry watchdog group, stated “since it’s Whistleblower Day, I thought I’d do some whistleblowing.”

Pierson went on to detail three sets of documents which he said Boeing employees had recently shared with him. The documents include the production records for the Ethiopian Airlines 737-8 MAX airplane, which according to the Foundation for Aviation Safety “paint a clear picture of the confusing and chaotic production operations going on at the 737 factory when this airplane was being manufactured.”

The documents also include information about a Federal Aviation Administration (FAA) investigation into whistleblower complaints about alleged loss of quality control at Boeing’s Electrical Systems Responsibility Center (ESRC) in Everett, Washington. According to Pierson, this investigation occurred the same week that the Ethiopian Airlines 737-8 MAX airplane was being manufactured in nearby Renton, Washington.

Lastly, the documents include communication between Boeing and Ethiopian Airlines about an uncommanded roll that plane had allegedly taken within three weeks of being delivered to Ethiopia.

In recent months, a number of Boeing whistleblowers have come forward alleging both safety concerns as well as a culture of retaliation at the company.

The National Law Forum

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