Gibbons Law Alert Blog

Pleading Setback Stalls N.J. Moldy Washing Machine Class Action, Which Will Face Uncertainty in Light of Comcast

A New Jersey moldy washing machine class action suffered a big pleading setback after the District of New Jersey held that the lengthy complaint still contained insufficient detail to place the defendant on notice of the precise misconduct alleged. But even if plaintiffs replead their case, their ultimate goal of class certification may be stymied in light of the Supreme Court’s decision in Comcast Corp. v. Behrend, and its collateral effect upon other defective washing machine putative class actions.

Gibbons IP Department Featured in 2013 Chambers Edition

The 2013 edition of the Chambers USA Guide to America’s Leading Lawyers for Business features the largest number of Gibbons practice areas (10) and individual attorneys (26) ever ranked in the top tiers of this publication. The firm has appeared in the New Jersey section of the Chambers guide since its inception. Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research.

Gibbons Employment & Labor Law Department Featured in 2013 Chambers Edition

The 2013 edition of the Chambers USA Guide to America’s Leading Lawyers for Business features the largest number of Gibbons practice areas (10) and individual attorneys (26) ever ranked in the top tiers of this publication. The firm has appeared in the New Jersey section of the Chambers guide since its inception. Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research.

Trade Secrets Theft by Former Employee Results in a Criminal Conviction Under the Federal Computer Fraud and Abuse Act but Still Leaves Uncertainty Over the Scope of the Act

In United States v. Nosal, a federal jury in California convicted a former employee of Korn/Ferry for violating the Computer Fraud and Abuse Act (“CFAA”). The evidence showed that the defendant directed his co-conspirators within the firm to use a borrowed password to gain access to trade secrets to be used in establishing their own business. The use of the borrowed password was critical to the successful prosecution under the CFAA because earlier in the case the Ninth Circuit Court of Appeals issued an opinion that narrowly interpreted the statute to prohibit only “unauthorized procurement or alteration of information, not its misuse or misappropriation.” The significant aspect of the Ninth Circuit’s interpretation of the CFAA in Nosal is the Court’s conclusion that a violation of the statute does not occur merely because an employee initially uses his authorized access to obtain his employer’s proprietary information even if he does so with the intent to misappropriate it. Presumably, had Nosal’s co-conspirators who accessed the computerized information in question been able to do so using their own passwords, there would have been no “unauthorized procurement” in violation of the CFAA.

Supreme Court Requires “But-For” Causation for Title VII Retaliation Claims

In a victory for employers, the U.S. Supreme Court ruled in University of Texas Southwestern Medical Center v. Nassar, that employees asserting retaliation claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) must establish that the adverse employment action at issue would not have occurred “but for” an improper motive on the employer’s part. This “but for” causation standard, as opposed to the more plaintiff-friendly “motivating factor” causation standard used in Title VII discrimination claims, gives employers a better chance at defeating Title VII retaliation claims, particularly at the summary judgment stage.

The U.S. Supreme Court Decides Who is a “Supervisor” for Title VII Purposes

Yesterday, the U.S. Supreme Court decided Vance v. Ball State University, one of the most-anticipated decisions of the Court’s 2012 Term. The Vance case concerns who is considered a “supervisor” for purposes of establishing an employer’s liability for hostile work environment harassment under Title VII of the Civil Rights Act of 1964. In a 5 to 4 decision, the Court affirmed the decision of the Court of Appeals for the Seventh Circuit, from which the case arose, and other lower courts which had defined “supervisor” to include only those individuals who possess the authority to fire, demote, promote, transfer, discipline or take some other tangible action against a harassment victim. The Court rejected the definition of “supervisor” proposed by the federal government, appearing as amicus curiae, and found in the EEOC’s Enforcement Guidelines, which links “supervisor” status to the ability to exercise direction over the victim’s daily work.

High Court Seeks Government Input on Akamai v. Limelight

The Supreme Court asked the U.S. Solicitor General to weigh in on whether to hear an appeal from the Federal Circuit’s decision in Akamai Technologies Inc. et al v. Limelight Network, Inc. on induced infringement. This is a very closely watched case for the software industry, but may have far reaching implications in the pharmaceutical field as well.

Supreme Court Will Decide Whether President’s Purported “Recess” Appointments are Constitutional

As predicted, the Supreme Court of the United States announced today that it will address the constitutionality of President Obama’s purported “recess” appointments of Members to the National Labor Relations Board. The Supreme Court’s decision, which could invalidate hundreds of Board decisions made during the past two years, is expected by July 2014.

Be Careful What You Wish For: Supreme Court Upholds Arbitrator’s “Erroneous” Class Arbitration Ruling

In Oxford Health Plans LLC v. Sutter, the U.S. Supreme Court affirmed an arbitrator’s decision that an agreement providing for arbitration of any disputes, constituted an agreement to participate in class arbitration. While at first blush this appears to be a departure from Stolt-Nielsen, S.A. v. AnimalFeeds Int’l Corp., it is not. Oxford Health says more about limited judicial review of an arbitrator’s decision than it does about the permissibility of class arbitration.

Ghost Rider Copyright Case Lives On

Last week, in Gary Friedrich Enters., LLC v. Marvel Enters., Inc., the Second Circuit reversed the lower court’s dismissal of a lawsuit brought by Gary Friedrich, who created the comic book super hero “Ghost Rider,” ruling that Friedrich could maintain his lawsuit against Marvel Enterprises Inc. regarding his ownership rights in the character.