The National Law Forum

Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

Jeanine M. Gozdecki with Barnes & Thornburg LLP recently had an article, Employee Retaliation Claims: Will the Supreme Court Stem the Tide?, featured in The National Law Review:

It was no surprise for practitioners and their clients alike to learn that, statistically, retaliation claims remain the largest number of claims brought before the EEOC (in 2012, almost 38,000 charges alleged retaliation—38.1% of all charges). Worse, retaliation claims are expensive to defend. This point is painfully highlighted in this week’s submissions with the U.S. Supreme Court.

Last week, the U.S. Chamber of Commerce (along with the Retail Litigation Center) filed with the Supreme Court an amici curiae brief in a case in whichretaliation is the central issue. The case, captioned Univ. of Texas Southwestern Medical Center v. Nassar (U.S. No. 12-484), has been appealed from the 5th Circuit.

The underlying case arose when a doctor was not hired after he complained about his treatment at another organization. But, his complaint is of little consequence on the big stage. The central question before the Court—and the one on which the U.S. Chamber focuses—is the standard required to prove retaliation under the Civil Rights Act of Title VII. Should employees be required to prove that their employers would not have taken an adverse action against them but for an improper motive? Or, does the standard require employees only to show that an improper motive was one of multiple factors? The latter—a mixed-motive standard—is the one the 5th Circuit applied.

The U.S. Chamber’s brief argues that the “mixed-motive standard” lowers the bar for retaliation claims, resulting in increased costs for employers. The Chamber’s brief is boldly specific—it cites research estimating that in 1988, the cost of defending a wrongful discharge claim averaged more than $80,000. The brief cites research supporting that today, it costs employers “possibly over $500,000 to defend a case at trial.”

As businesses on the front line, we, of course, already knew that.

Oral argument is scheduled for April 24, 2013.

You can follow the case and read the U.S. Chamber of Commerce’s brief at the SCOTUS Blog by clicking on the following link: University of Texas Southwestern Medical Center v. Nassar.

IP Law Summit – March 21-23, 2013

The National Law Review is pleased to bring you information about the upcoming IP Law Summit:

The IP Law Summit is the premium forum for bringing senior IP Counsel and service providers together. As an invitation-only event taking place behind closed doors, the Summit offers an intimate environment for a focused discussion of cutting edge technology, strategy and products driving the IP market place.

The one-on-one business meetings provide access to Senior IP Counsel within the largest corporations across the United States. A thorough selection process ensures a qualified audience, which grants unparalleled business and networking opportunities in a luxurious and stimulating environment.

March 21-23, 2013

The Broadmoor, Colorado Springs, CO

Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development

The National Law Review recently published an article by Lowell M. Rothschild with Bracewell & Giuliani LLP titled, Two Polar Bear Decisions in Two Weeks: Their significance for Climate Change, Endangered Species and Project Development:

The end of February saw a flurry of news regarding the status of the Polar Bear under the Endangered Species Act. On February 20, the US Fish and Wildlife Service reissued its so-called “4(d)” rule regarding the Bear, outlining the rules “necessary and advisable” to protect it. Nine days later, the U.S. Court of Appeals for the DC Circuit upheld FWS’s listing of the Polar Bear as a “threatened” species under the ESA. Each development is significant in its own right; together, they offer solid guidance as to where FWS is heading on using the ESA to address climate change and how climate change is affecting the listing of potentially endangered species.

Endangered v. Threatened

The latter question was at the heart of the litigation decided by the DC Circuit. There, the court faced the question of whether FWS correctly identified the Polar Bear as “Threatened”, rather than “Endangered”. Under the ESA, the difference between the two is essentially whether the species is currently in danger of extinction (Endangered) or whether it is likely to become endangered in the foreseeable future (Threatened).

The Polar Bear’s Listing

The Polar Bear is heavily dependent on sea ice, and climate change is decreasing the amount of arctic sea ice. FWS’s decision that the Bear was Threatened, rather than Endangered, was based, essentially, on the Service’s view of how quickly climate change was causing arctic sea ice to melt. If it is happening “quickly,” FWS would list the Bear as Endangered. If it is happening very slowly, FWS wouldn’t list the Bear at all. FWS took the middle path, deciding that climate change is happening fast enough that those species face the threat of extinction in the foreseeable future. Given the limitations of climate science, FWS chose 45 years as the “foreseeable” future and the Court upheld FWS’s use of this timeframe.

What the Listing Shows about FWS’s View of Climate Change’s Impact on Species

The Court upheld FWS’s listing decision, doing so in the face of challenges on both sides of the decision – some argued that the Bear shouldn’t be listed at all and others argued that it faces an imminent risk of extinction and should be considered Endangered, not just Threatened. The takeaways from FWS’s listing decision and the court’s refusal to strike it down are that, at least for the ESA:

climate change is occurring
it will have significant adverse impacts to species in the foreseeable future
those impacts are still reversible

The 4(d) Decision

So, since FWS has determined that climate change is adversely affecting species, will it use the ESA to regulate climate change? That question was at the heart of the other major development: FWS’s issuance of the “4(d)” rule for the Polar Bear. At a very high level, a 4(d) rule outlines the steps FWS believes are necessary and advisable to protect a Threatened species. These steps can include either restrictions on public action, such as limitations on development in the species’ habitat, or the allowance of otherwise prohibited activity, such as permitting certain specified, limited adverse impacts to the species.

What the Polar bear 4(d) Decision Means for Using the ESA to Regulate Climate Change

For the Polar Bear’s 4(d) rule, the main public policy question was how to address activities outside of the Bear’s range that increased the potential for climate change. Since we know the Polar Bear needs sea ice to survive and that climate change is reducing arctic sea ice, would FWS’s 4(d) rule attempt to protect the Bear from further reductions in sea ice by addressing activities that affect the climate change? Boiled down to its core, would the 4(d) rule require greenhouse gas-emitting projects far from the Polar Bear’s range to obtain an ESA permit for those emissions? FWS’s rule says no.

The Takeaways

The rule is consistent with FWS’s prior 4(d) rule for the Polar Bear, issued in 2008 and struck down by US District Court for the District of Columbia in 2011. The rule is also consistent with Bush Administration guidance addressing how FWS should examine the ESA impacts of GHG emissions. It is therefore a reliable and useful marker as to FWS’s view of the ESA. The new 4(d) rule is more likely to be upheld than the prior one – the prior one was struck down for largely procedural reasons and for a few inadequate findings which FWS appears to have since corrected.

The takeaway here is that FWS has taken a consistent position over time on the use of the Act to regulate GHGs. The Service has used and will continue to use the Act to protect species affected by climate change, but only from actions taken against them directly or in their range – it will not use the ESA to regulate GHGs on a national or global level.

Chief Litigation Officer Summit – March 21-23, 2013

The National Law Review is pleased to bring you information about the upcoming Chief Litigation Officer Summit:

The primary objective of the Chief Litigation Officer Summit is to explore the key aspects and issues related to litigation best practices and the protection and defense of corporations. The Summit’s program topics have been pinpointed and validated by leading litigation counsel as the top critical issues they face.

March 21-23, 2013

The Broadmoor, Colorado Springs, CO

6 Ways Your Marriage Problems Might Be Like The Fiscal Cliff

Rebecca L. Palmer with Lowndes, Drosdick, Doster, Kantor & Reed, P.A. recently had an article, 6 Ways Your Marriage Problems Might Be Like The Fiscal Cliff, featured in The National Law Review:

It’s been hard to avoid all the talk about the economic “Fiscal Cliff” over the past few months. Going over this cliff means a combination of higher taxes for everyone, cutting vital programs, and the continued deficit funding of expensive entitlements.

Going over the cliff, the analysts say, spells economic disaster.

We often play this same “fast and loose” game with our marriages. We tax the relationship, we cut important programs, and we cheapen spontaneity, love, and generosity by acting like we’re entitled.

As a result, we go over the marriage cliff. We make a wreck of a good thing, and we can even leave the entire relationship broken and in pieces at the bottom. Here are 6 things the fiscal cliff and your marriage cliff have in common:

The entire scenario is avoidable from the get-go:

Elected representatives swear an oath to work on behalf of the people, and married couples promise to put one another first. Revisiting our vows and following through on our promises not only strengthens the relationship, but it avoids the free-fall of schism.

We empty the bank faster than we put capital in:

Both the country and our relationships tend to practice deficit spending. Rather than investing and stocking up emotional capital in terms of kindness, encouragement, love, gentleness, self-sacrifice and self-control, we keep the balance at zero or less via selfishness, unkindness, thoughtlessness, and more.

We cut vital programs:

When was the last time you took your wife on a date? “How to Reinvent Date Night” Don’t cut this, it’s a vital program! Ditto bringing her flowers! When did you last make sure she knew how much you appreciated her? How often do you say, “I love you” during the day? These are all important programs. Cut them, and the slippery slope to the edge of the cliff gets a little steeper every time.

Both parties value themselves more than the relationship:

The idea of government is to work together for the common good. The idea of marriage is to pool our resources and value the relationship ahead of our own agenda. Unfortunately, just like many politicians, we often forget the big picture. Sometimes we even knowingly steer over the cliff just to prove a point. Read more here: 10 Ways to Love Your Wife for Life.

We put our feet on the coffee table, turn on the TV, snap our fingers, and put our hand out for a drink:

Not only that, but we expect sex without offering affection, we leave our dirty laundry on the floor, we act offended if our laundry’s not ironed the next day, we forget to thank our wife for cooking our favorite meal, and we act entitled in so many ways. We forget that marriage is a covenant. A covenant requires all parties involved to nurture the relationship.

The solution lies in sacrifice more than it does in victory:

When we insist on winning, we also insist that someone else lose. When that happens, everyone tends to lose. But when we work for the other person to win, it seems like no one has to lose a thing. Self-sacrificial love is win-win.

3rd Annual International Trade Compliance Conference

The National Law Review is pleased to bring you information about the upcoming Marcus Evans conference – 3rd Annual International Trade Compliance Conference:

Navigating the Latest Changes in Trade Regulations and Global Controls for Improved Compliance

24-26 Apr 2013
venue to be confirmed – Chicago, IL, United States of America

Building from the success of our 2012 conference, the marcus evans 3^rd Annual International Trade Compliance Conference will bring together senior executives looking to improve processes with evolving global markets, trade agreements, technology requirements and compliance. Additionally, this conference will provide attendees with the latest updates in international trade regulations, as well as insights and tools for strengthening internal operations in order to remain compliant with critical requirements on a day-to-day basis.

The 3^rd Annual International Trade Compliance Conference features two distinct tracks; allowing attendees to fully customize their agenda.

Track one focuses specifically on advanced import & customs topics, such as identifying the latest changes to the ISA program, discovering advancements in supply chain programs and applying recent FDA regulation updates to your business plan.

Track two is entirely centered on export controls. Featured topics include evaluating the recent updates to the ECR, understanding requirements for OFAC compliance and dissecting US and global technology regulations for secure transfers.

Delegates are able to mix and match sessions from both tracks to create a complete conference experience that covers every area of interest.

Attending this conference will enable you to:

1.) Identify the latest regulatory changes within emerging markets for seamless trade operations

2.) Navigate Free Trade Agreements to increase efficiency and decrease corporate costs

3.) Institute a successful global trade compliance program to improve company procedures

4.) Conquer import and export classification for more effective business practices

5.) Tackle the latest regulations and requirements for technology transfers and determine various tactics for remaining compliant

Industry leaders attending this conference will also benefit from a dynamic presentation format consisting of workshops, panel-discussions, and industry-specific case studies that provide accurate, real-world knowledge. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking, and exclusive online access to materials post-event.

Who Should Attend

marcus evans invites Heads, Vice Presidents, In-House Counsel, and government agencies with responsibilities in the following areas:

-Global/International Trade Compliance
-Import/Export Trade Compliance
-Global Customs Compliance
-Import/Export Operations
-Export Controls

New Family and Medical Leave Act (FMLA) Regulations Effective: New Notice Poster and Model Forms Available

Danielle Barbour Wilson and David L. Woodard with Poyner Spruill LLP recently had an article, New Family and Medical Leave Act (FMLA) Regulations Effective: New Notice Poster and Model Forms Available, published in The National Law Review:

As of March 8, 2013, employers with 50 or more employees are required to post the Department of Labor’s (DOL) new Family and Medical Leave Act (FMLA) notice poster incorporating the recently issued final regulations, which incorporate amendments made by the National Defense Authorization Act (NDAA) and the Airline Flight Crew Technical Corrections Act (AFCTCA). The new notice poster can be found at the DOL’s website here. Federal law requires that all covered employers post the FMLA notice in a conspicuous place, even if no employees are eligible for FMLA leave. The deadline for employers to begin posting the new notice poster was March 8, 2013, so any employer who has not already done so should act now.

In addition to the new poster, the DOL has issued revised model forms that reflect the final regulations. Most notably, the DOL has issued an all-new certification form: Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385-V). This form reflects the FMLA’s expanded provisions that allow eligible employees to use Military Caregiver Leave to care for a veteran who was (not dishonorably) discharged from the military within the past five years.

While there are several new provisions of the FMLA that relate to job–protected leave for airline personnel and flight crews, there have been significant changes made that apply to all employees. Specifically, there have been significant changes made to Qualifying Exigency Leave which include the following: expanding the number of days that an eligible employee may take for rest and recuperation qualifying exigency leave, revising the definition of “military member” for purposes of leave, changing the type of duty required for coverage, and granting certain employees leave rights to care for the parents of a military member.

In addition, Military Caregiver Leave under the FMLA has been expanded. Under the new regulations, the definition of “covered servicemember” has been expanded to include covered veterans who are undergoing medical treatment, recuperation, or therapy for a serious injury or illness. Under the final regulations, a “covered veteran” is an individual who was discharged or released under conditions other than dishonorable at any time during the five-year period prior to the first date the eligible employee takes FMLA leave to care for the covered veteran. Moreover, the definition of a “serious injury or illness” for a current servicemember has been expanded to include injuries or illnesses that existed before the beginning of the member’s active duty that were aggravated by service in the line of duty while on active duty in the Armed Forces.

For more detailed information, the DOL’s side-by-side comparison of the 2008 and 2013 regulations can be found here.

While many of the changes relate to provisions that are seldom used by most employers (with the exception of airlines), every FMLA-covered employer must post the new notice poster and should review its forms and policies to ensure compliance with the new regulations.

Cutting Edge Issues in Asbestos Litigation Conference – March 18-19, 2013

The National Law Review is pleased to bring you information about the upcoming Perrin Cutting Edge Issues in Asbestos Litigation Conference:

Monday, March 18th – Tuesday, March 19th, 2013
Beverly Wilshire, A Four Seasons Hotel
Beverly Hills, CA

Protect Your Trademark Online: Global Trademark Clearinghouse to Begin Accepting Submissions

The National Law Review recently published an article by Karen Artz Ash, Bret J. Danow, Roger P. Furey, Doron S. Goldstein, Peter J. Riebling, and David B. Sherman of Katten Muchin Rosenman LLP regarding Trademarks and the Global Clearinghouse:

On March 26, 2013, the Internet Corporation for Assigned Names and Numbers (ICANN) will begin to allow trademark owners to submit their marks for inclusion in a newly created Trademark Clearinghouse, which is intended to serve as a single centralized database of verified information that will enable trademark holders throughout the world to better protect their rights on the Internet. This follow-up to “New Generic Top-Level Domain Names: What Brand Owners Need to Know” (June 15, 2012) introduces brand owners (and their licensees, assignees and agents) to several key elements of the Trademark Clearinghouse submission process, and describes the primary benefits that the Trademark Clearinghouse promises to provide to trademark rights holders.

Background

ICANN, the private nonprofit corporation that manages most top-level domains (TLDs) and IP addresses, developed the Trademark Clearinghouse (in connection with Deloitte and IBM) as part of its new generic Top-Level Domain (New gTLD) Program. Generally speaking, the New gTLD Program allows any legal entity to file an application to create a new gTLD—the general domain name address extensions that come after the last dot (such as .com, .net., .org)—and, as a result, has the potential to significantly expand the existing Internet infrastructure by increasing the number of gTLDs to an almost unlimited amount (and simultaneously expanding the potential for online trademark infringement). Amid this expansion, the Trademark Clearinghouse was created to protect trademark rights holders by permitting them to more easily register second-level domain names under new gTLDs (e.g., YOURNAME.example), and to allow gTLD operators and registries to better review and assess trademark claims.

The Submission Process

The Trademark Clearinghouse will initially accept and verify for registration (1) nationally or regionally (i.e., multi-nationally) registered trademarks; (2) court-validated marks; and (3) marks protected by statute or treaty. Trademarks that are the subjects of pending applications or are inactive or invalid may not be registered.

Although the specific type of information and documentation required to verify a trademark record will vary depending on the type of mark, the Trademark Clearinghouse will generally require trademark rights holders to submit information regarding the mark itself, details about any applicable registration, court reference numbers or other documentation evidencing rights, the goods and/or services covered and the corresponding Nice classification(s), the country(ies) in which the mark is protected, the name and contact information of the trademark rights holder, and, for purposes of obtaining applicable Sunrise Services, certain verification of proof of use of the mark, which may include a signed declaration and specimen(s) of trademark use (e.g., labels, tags, containers, advertising and marketing materials). All trademark submissions will be subject to verification by Deloitte Enterprise Risk Services.

This verified trademark data will support the two primary benefits that the Trademark Clearinghouse promises to provide to trademark rights holders: Sunrise Services and “Trademark Claims” for all new gTLDs. The cost charged by ICANN for making a submission to the Trademark Clearinghouse will vary from US$95 to US$150 per year for a single mark, with discounted fees available to trademark rights holders who seek registration for three years (US$435) or five years (US$725). The Trademark Clearinghouse’s submission guidelines and basic fee structure are available for download at its official website.

Sunrise Services

By registering a trademark with the Trademark Clearinghouse, a trademark rights holder will be permitted to register second-level domain names under new gTLDs (e.g., YOURNAME.example) during a “Sunrise” period of at least thirty (30) days before registration of such names is made available to the general public. All new gTLD applicants are subject to this mandatory “Sunrise” period after the registration of the new gTLD with a registry. Access to “Sunrise” registration will provide trademark rights holders with a relatively low-cost means by which to obtain some level of control of, and some ability to safeguard, second-level domain names comprised of their trademarks.

Trademark Claims

Registering a trademark with the Trademark Clearinghouse will also entitle a rights holder to a “Trademark Claims” service following the “Sunrise” period. This “Trademark Claims” service will extend for at least the first sixty (60) days after a new gTLD is open for registration with the general public. At the outset, the “Trademark Claims” service will provide a warning of potential infringement to any third party attempting to register a domain name that matches a trademark registered with the Trademark Clearinghouse. In the event that the third party proceeds to register the domain name despite such a notice, the “Trademark Claims” service would send an automated notification to the trademark holder alerting it to the potential infringement. Although the Trademark Clearinghouse will not bar registration of the potentially infringing domain name, the “Trademark Claims” notice will expeditiously inform the rights holder and enable it to consider whether to take action.

As a practical matter, the “Trademark Claims” service will only identify identical matches to eligible trademarks. In other words, “Trademark Claims” notices will only be generated if the domain name label consists of the complete and identical textual elements of the trademark registered with the Trademark Clearinghouse. As a result, even a domain name containing a plural version of the mark would not be considered an identical match. Typos and “trademark + generic term” domain name labels also would not be considered identical matches. To the extent a trademark contains any special character that cannot be represented in a domain name, e.g., “@” or “!,” such character may be either omitted, replaced by hyphens, or spelled out with appropriate words of the official language(s) of the country/jurisdiction in which the mark is protected. Accordingly, if a trademark rights holder is interested in obtaining additional protection against the use and registration of infringing domain names, it may wish to work with legal counsel and use a private domain name watching service.

Conclusion

The launch of the Trademark Clearinghouse marks a phase of ICANN’s New gTLD Program that would appear to be particularly significant to brand owners and licensees. In view of the numerous ways in which the New gTLD Program promises to alter the existing Internet infrastructure, trademark rights holders may wish to consider the benefits of early registration with the Trademark Clearinghouse and work with counsel to develop other cost-effective strategies to protect their trademarks and other valuable intellectual property rights.

National Institute on E-Discovery 2013

The National Law Review is pleased to bring you information regarding the upcoming ABA Conference – National Institute on E-Discovery 2013:

When

April 05, 2013

Where

Proskauer Rose LLP
Eleven Times Square
New York, NY 10036-8299
United States of America

Nationally-acclaimed e-discovery professionals and judges will convene for a full day to analyze and discuss the latest developments and best strategies for managing the e-discovery process.

Program Focus

Attendees of this program will learn:

Comprehensive and practical “issue-spotting”
About the continuing rules amendment process directly from members of the federal judiciary, as well as leading-edge issues emerging in their courts
How to choose, search, and review technology that fits your case
Tips for cost-effective and defensible project management for both requesting parties and producing parties
The latest information on e-discovery of “personal data sources” including social media and personal devices
How to navigate “discovery about discovery,” including important privilege considerations

The National Law Forum

Employee Retaliation Claims: Will the Supreme Court Stem the Tide?

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IP Law Summit – March 21-23, 2013

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