Attorneys’ fee awards, Prevailing Parties and Reasonable Fee Awards!

Attorneys’ fees are often a huge point of contention in a lawsuit, especially, in consumer and employment law areas.  Often fee shifting provisions are utilized to negotiate concessions from opposing parties.  However, understanding how fee petitions are awarded by courts is crucial to litigating these disputes, advising business owners, individuals, employers, employees, collection agencies and consumers. 

A court will look at the following factors: 1) the nature of the law and the expertise required; 2) the local rates of attorneys specializing in that area of law; 3) the use of multiple attorneys; 3) the complexity of the task performed by the billing attorneys; 4) the amount of recovery obtained for the client; 5) the efficient use of paralegals or administrative staff; 6) the number of conferences and attorney meetings; and 7) the length of the litigation. 

In a recent opinion, the 7th Circuit, affirmed a district courts award of $6500 in fees, based on the following findings: 1) four attorneys were used, when one attorney with a billing $260 could have performed the work; 2) duplicative tasks were performed by attorneys with a billing rate of $425 and $375; 3) the lawsuit was resolved in a matter of months; 4) $6500 seemed roughly proportional to the amount recovered for the Plaintiffs under the Fair Debt Collections Practices Act (FDCPA); and 5) the courts determination that the proffered evidence did not justify the billing rates claims by Plaintiffs’ attorneys. 

See:  Fee_7th_Schlacher_0809.  If you have any concerns or questions regarding the attorneys’ fee matters, then please feel free to contact us.

Displaying Products at Trade Shows-Basis for Personal Jurisdiction!

Imagine you are a foreign company selling a product in Brazil.  Your company does not sell or distribute products in the United States (“US”).  You learn of a trade show or convention relating to your products.  It’s an international trade show or convention located at a site in the US. You decide to send a company representative to the US with a demo of your product.  

Little did you know that now, you will be subjecting yourself to a lawsuit in the US.  This is very close to the facts that led the Federal Circuit to find personal jurisdiction for Synthes (U.S.A) to sue GMReis.  GMReis’ CEO and an employee attended international trade show of the American Association of Orthopedic Surgeons (AAOS) in San Diego and displayed five interlocking bone plates at a booth. At the trade show, GMReis was served with a complaint for patent infringement.  

Synthes an assignee of a US patent directed at “a bone plating system and method for fracture fixation of bone” sued GMReis, a Brazilian company for patent infringement in the US.  The Federal Circuit held that under FRCP 4 (k) (2), although the court did not have general jurisdiction over GMReis, there was sufficient contact for specific jurisdiction relating to patent infringement. 

The court’s holding was based on the following activities by GMReis: 1) attending seven (7) trade shows in the US demonstrating its products; 2) selling one (1) product to a veterinary company in the US; 3) purchasing parts and a manufacturing machine for use in Brazil; 4) meeting with two American companies regarding purchase and development of non accused products; and 5) two inquiries by US entities regarding FDA approval of its interlocking bone plating products and potential clinical trials. 

The Federal Circuit’s analysis of minimum contacts and whether or not it would be reasonable and fair to sue a foreign company in the US; opens the door to patent infringement claims against foreign entities.   Only, time will tell how far this door will open, but it’s another tool for a patent holder to protect its interest.

Trademark Law Treaty Implementation Act-Summary

The Trademark Law Treaty Implementation Act (TLTIA) has several important changes that trademark owners, practitioners and litigators should know.  The following are important provisions of the act that can impact your mark(s):

1) the requirement in section 1(a) and 1(b) for the applicant to state the mode or manner in which the mark is to be used or in connection with goods is eliminated;

2) an application based on foreign trademark no longer has to be accompanied by a certificate or certified copy of the foreign registration at the time of filing is eliminated;

3) to revive an application under 12 (b) the applicant must now demonstrate an unintentional delay in filing a untimely response to an Office Action instead of showing an unavoidable delay; and

4) a section 8 affidavit of continued use or excusable nonuse must be filed in the 9^th year of mark’s registration and every ten years thereafter.   Section 9 no longer requires a declaration of continued use or excusable nonuse in a renewal application. Thus, every tenth year, the owner of a registration must file both a §8 affidavit and a §9 renewal application. However, a section §8 affidavit must still be filed between the fifth and sixth year after the date of registration.

For additional changes see:  tlt_summ

Continuation of Health Insurance Coverage in IL?

Continuation of Health Insurance Coverage by IL  may seem unnecessary, but it is required under Illinois Continuation laws.  The Illinois Continuation laws apply to employers or companies of any size and provides for the following:

1) spousal and dependent continuation of health insurance coverage;

2) written notice to the employee of his or her right to elect Illinois Continuation Health Coverage;

3) the employee bears a 100% of the premiums costs for electing the coverage;

4) the employee must elect the coverage within 60 days of the date his or her employment was terminated;

5) benefits for hospital, surgical or major medical are the same as that under the previous group coverage; and

6) the Illinois Continuation coverage lasts for nine months from the date of termination or separation of employment. 

If you have any questions regarding the requirements for Continuation of Health Insurance Coverage in IL, then please feel free to contact us.

When is an Employer required to provide a Reasonable Accommodation to disabled employees?

In the legal world, a Reasonable Accommodation is not a stay at a five star hotel or resort.  Instead these terms, refer to the balance that courts attempt to strike between a disabled employee’s rights and an employer’s duty to accommodate the employee. 

Typically, the employer or Company does not have to provide a Reasonable Accommodation under the American’s with Disabilities Act (ADA), unless the employee asks for the accommodation or the employer knows of the disability.  Hedberg v. Indiana Bell Tel. Co. Inc., 47 F.3d 928, 934 (7th Cir. 1995).  

In order for the employer’s obligation to accommodate to be triggered, without the employee’s request, the symptoms of the disability must be obvious enough to reasonably infer that the employer actually knew about the disability.  Hedberg,  47 F.3d 928, 934 (7th Cir. 1995) and Jovanovic v. In-Sink-Erator Div. of Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000). 

However, this inquiry is often very fact specific, and courts will make a case by case determination about whether or not the employer or Company, had a duty to provide a Reasonable Accommodation to its disabled employees.   

Hedberg  and Jovanovic

A new test for determining Employee v. Independent Contractor Status?

A recent DC Appellate Circuit Court decision may create a new twist on the factors used to determine whether or not an individual is an employee or an independent contractor.  The DC Circuit Court of Appeals recently focused on the degree to which FedEx delivery drivers had the “opportunity and functioned as an entrepreneur”, instead of the traditional focus on the “right to control.” 

Although this decision involved classification of individuals for purposes of determining their rights to bargain as a Union with FedEx, the test and factors discussed are the common law factors used by courts to determine the employment status of an individual. 

The new standard resulted in FedEx delivery drivers being classified as independent contractors.  The DC court also focused on the following: 1) the drivers had their own vehicles; 2) the drivers could use the vehicles for personal or other commercial purposes; 3) the drivers were not subject to disciplinary actions; 4) the drivers signed independent contractor agreements; and 5) the drivers were responsible for the costs of operating and maintaining their vehicles. 

Of course, it is not clear if IL courts will follow this line of reasoning, but it does provide another way for business owners, entrepreneurs and companies to structure relationships with individuals and justify the classification.  Also, individuals need to be aware of the ruling to recognize the potential for greater enforceability of such an independent contractor agreement; otherwise, individuals may be unable to get out of such an arrangement.    

See. FedEx Home Delivery v. NLRB, 07-1931 (D.C. Cir. Apr. 21, 2009). 

The Safe Harbor for ISPs. What is it?

The safe harbor is not a tranquil body of water, but a section in the Digital Millennium Copyright Act (DMCA) that protects Internet Service Providers (ISPs).  The ISP is an entity offering transmission, routing or providing connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.  512 (A)

Or, an ISP is a provider of online services or network access or the operator of such facilities. 512 (B).  The ISP is immune from liability for monetary, injunctive or equitable relief for copyright infringement for storage of such material at direction of user on its systems.  512 (c).  However, the ISP must meet the following elements to acquire such immunity:

1) not have actual knowledge that the material or an activity using the material on the network is infringing;

2) is not aware of circumstances or facts from which the infringing activity is apparent; or

3) upon acquiring such knowledge or awareness, removes or disables access to the material;

4) does not receive a financial benefit directly attributable to the infringing activity, where the ISP has the right and ability to control such activity; and

5)    upon notice of claimed infringement responds expeditiously to remove or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.

Website Immunity for Defamation under the CDA!

The Communications Decency Act (CDA) of 1996, is still alive and protects many internet service providers (ISPs) and website hosts from liability for statements and actions made by others using their services.  The goal is to promote the free exchange of information and ideas over the internet.

Many individuals have received information or posts from individuals that defame or paint them in a bad light.  Sometimes there is false or misleading information that is posted on a website are the basis of tort, contract and intellectual property claims against the ISP or website host. 

The CDA shields these individuals from liability, because they are not considered the speaker.  Moreover, they are shielded from liability if they act in good faith and restrict access to false or misleading information.   Most of the cases dealing with these issues have been in the defamation context, but there is some crossover with contract and intellectual property matters. 

The ISP and the website host is immune as long as they are not the author or creator of the post or statement.  In other words, they are just a means of commnication.  It remains to be seen how the CDA, particularly, section 230, will be interpreted in the context of an breach of contract or violation of intellectual property rights claims.

On-line Auction Sites and Trademark Infringement!

On-line auction sites have become a popular method for selling, buying or bidding for many consumer items.  This raises questions about the sale of counterfeit or infringing goods being provided by anonymous sellers via on-line auction sites.  Often the on-line auction site is sued for direct and contributory trademark infringement. 

However, this raises concerns about shutting down an entire on-line auction site due to a few bad actors or anonymous sellers.  In Tiffany v. E-bay, the court dealt with this scenario and found that E-bay was not liable to Tiffany on its claims of direct trademark infringement, contributory trademark infringement, dilution, unfair competition or false advertising. 

The Court focused on E-bay’s extensive policies for investigating, reporting and removal of infringing or counterfeit goods from its sites.  The Court also went to on to find that the sale of actual Tiffany goods was protected under the nominative fair use defense.  Thus, on-line auctions sites were protected assuming they met their affirmative duty to police the sale of infringing and counterfeit goods. 

This ruling will provide for an increase in the number of on-line auction sites and allow for numerous resell opportunities.  Whether you are the trademark owner, a consumer or an on-line auctioneer, understanding trademark law and how it impacts your business practices or purchasing behavior is crucial to avoiding liability for trademark infringement. 

If you have any concerns or questions regarding these matters, then please feel free to contact us.

Back to the Basics: What is a Copyright?

A copyright is an often overlooked area of intellectual property law.  Most business owners, individuals, entrepreneurs and small/mid-size companies know that patents and trademark can help increase their number of assets, develop licensing royalties, increase market share, block competitors and a variety of similar business objectives.

However, most business owners, individuals and small/mid-size companies fail to realize that a copyright can help in many of the same ways.  Under 35 USC 106, a copyright grants the author or owner the following: a) the right to reproduce; b) prepare derivative works; c) the right to distribute works; d) the right to perform the work publicly; and d) the right to publicly display the work.

Moreover, owning a copyright is distinct from having a tangible copy of the work.  A copyright can be licensed or transferred in a similar manner to patents or trademark.  A individual, business owner, entrepreneur, small or mid-size company can acquire and register a copyright in a book, song, video, a play, business process manual, a photograph, a logo, a website, computer software, a movie and a variety of other similar works of authorship. 

Upon registering a copyright, you can sue for copyright infringement in federal court, get statutory damages and get attorneys fees for the lawsuit.  To learn more about how copyright law can help you achieve your business objectives please feel free to contact our office.