McDermott Will & Emery (LexBlog United States)

While the Occupational Safety and Health Administration (OSHA) has not released specific standards covering COVID-19, Michelle Strowhiro, a partner in the Los Angeles office of McDermott Will & Emery, is quoted in a recent ABA Journal article saying that employers could face risks under the Occupational Safety and Health Act’s general duty clause if they...

Although 2020 has already provided more than its share of surprises for businesses, one thing appears to remain unchanged: the California attorney general’s commitment to enforcing the California Consumer Privacy Act beginning July 1, 2020. As companies work to ensure compliance with this legislation, we explore several key issues. No one will disagree that a...

The first wave of California Consumer Privacy Act litigation has begun to roll in, and the complaints are already raising interesting questions about the scope of CCPA’s private right of action. The actions assert a variety of claims under numerous theories and present a broad range of potential risks to businesses subject to CCPA. In...

McDermott recently hosted Andrew Ellenbogen of EIG Partners and Jeff Hunter of Apollo Global Management for a lively discussion about the trends and developments in today’s shifting investment landscape. Below are key takeaways from this week’s webinar. The most impactful changes in energy investment over the last decade have been the drop in natural gas...

A proposed ballot initiative in California known as the California Privacy Rights Act, which is likely to pass if placed on the 2020 ballot, would both clarify and expand the existing California Consumer Privacy Act. Companies doing business in the state should closely monitor these developments and prepare for compliance, as we outline in this...

In remarks at the NYU Tax Controversy Forum on June 18, 2020, Internal Revenue Service (IRS) officials indicated that the agency is analyzing the use of private foundations for tax planning. Ms. Tamera Ripperda, who is the commissioner of the Tax Exempt and Government Entities (TEGE) Division and previously served as the industry director for...

In recent weeks and months, legal and technical issues related to use of facial recognition systems in the United States have received national attention, including concerns that the technology lacks accuracy in identifying non-white individuals and that its widespread use by police departments may play a role in racially discriminatory policing. Privacy considerations will play...

The US Court of Appeals for the Federal Circuit affirmed in part and dismissed in part a district court’s final judgment for lack of jurisdiction, concluding that the judgment below was final only as to one of multiple defendants. Iron Oak Technologies, LLC v. Microsoft Corporation, Case No. 19-1802 (Fed. Cir. June 8, 2020) (Hughes,...

The US Department of the Treasury has released long-expected proposed regulations regarding the section 4960 excise tax on certain remuneration or separation amounts paid to the five highest paid employees of a tax-exempt organization. The new proposed regulations continue the tough approach previously taken on section 4960 issues, while also providing some new exceptions and...

As part of the general move to better-for-you beverages, non-alcoholic (NA) options have been and will likely continue to be on the rise. However, how NA is treated, or not treated, as “beer” has significant impact on its potential route to market. The below summarizes the overall treatment of NA beer under US federal law,...

The Patent Trial and Appeal Board (Board) designated as informative a decision on institution of a post-grant review (PGR), which set forth an analysis for determining whether a design patent’s claims are primarily functional and therefore not patentable under 35 U.S.C. § 171’s requirement that the invention be an “ornamental design.” Sattler Tech Corp. v. HumanCentric...

Addressing the issue of claim preclusion, the US Court of Appeals for the Federal Circuit affirmed the district court’s holding that patent infringement customer lawsuits were precluded in view of a prior action against a website proprietor that was dismissed with prejudice and involved the same patents and accused product. In re: PersonalWeb Techs, LLC,...

The success of remote working arrangements during the COVID-19 pandemic has made more employers interested in hiring out-of-state workers. In a recent article, Michelle Strowhiro, a partner in McDermott Will & Emery’s Employment Practice Group, explained how relaxed labor laws in other states could also be a draw for employers. Access the full article.

The Patent Trial and Appeal Board (PTAB) designated as informative a decision explaining the procedure for holding oral arguments where confidential information will be discussed. Curt G. Joa, Inc. v. Fameccanica.Data S.P.A., Case No. 2016IPR-00906 (PTAB June 20, 2017) (Chagnon, APJ). Joa filed a petition for inter partes review against a patent owned by Fameccanica....

The Patent Trial and Appeal Board (Board) designated as precedential a decision on a motion to terminate under § 317(a), finding that any collateral agreements referred in the parties’ agreement to terminate a pending inter partes review (IPR) must be filed with the Board. DTN, LLC. v. Farms Techs, LLC, Case Nos. IPR2018-01412, -01525 (PTAB June...

The US Patent and Trademark Office (PTO) extended the time to petition for restoration of the right of priority or benefit to certain prior-filed applications. Pursuant to the Coronavirus Aid, Relief, and Economic Security Act and 37 CFR § 1.183, the PTO also waived the associated petition fees. For any nonprovisional application seeking priority of...

In a non-precedential ruling, the US Court of Appeals for the Second Circuit affirmed the dismissal of a makeup artist’s lawsuit filed against a fashion photographer, finding the plaintiff’s state unjust enrichment and unfair competition/misappropriation claims were preempted by the Copyright Act. Sammy Mourabit v. Steven Klein, Case No. 19-2142-cv (2d Cir. June 8, 2020)...

Presented below is our summary of significant Internal Revenue Service (IRS) guidance and relevant tax matters for the week of June 15 – June 20, 2020. Additionally, for continuing updates on the tax impact of COVID-19, please visit our resource page here. June 19, 2020: The US Tax Court announced that the Court will resume...

On Monday, June 15, 2020, the US Supreme Court held in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects transgender, gay and lesbian employees (and prospective employees) from workplace discrimination based on sex. This means that the protective authority of Title VII for LGBTQ individuals generally extends to employer-sponsored healthcare...

The United States Patent and Trademark Office (USPTO) has announced a new prioritized examination program to expedite the examination of applications for marks used to identify qualifying COVID-19 medical products and services. Applications that qualify for the program will immediately be assigned to an examining attorney for review, which expedites examination by approximately two months....

The US Court of Appeals for the Second Circuit affirmed a district court’s denial of a motion to dismiss a copyright infringement suit on the ground of sovereign immunity, holding that advertising activity in the United States on behalf of a sovereign government falls within the commercial activity exception to sovereign immunity. Pablo Star Ltd....

The coronavirus (COVID-19) pandemic has thrown our personal and professional lives into a constant state of change, as we deal with social distancing, e-learning, remote working, and Zoom. In this American Bar Association article, Andrew R. Roberson, a partner in US and International Tax at McDermott Will & Emery, describes how the constant change or...

On June 18, 2020, McDermott partners Neil Levy and David Tewksbury were joined by Paul M. Sotkiewicz, PhD, of E-Cubed Policy Associates, LLC, to discuss recent developments in the markets operated by PJM Interconnection (PJM). Below are key takeaways from this week’s webinar. In December 2019, the US Federal Energy Regulatory Commission (FERC) issued an...

Employers are poised to collect health data from their workforces daily as they adopt temperature checks and other screening protocols to fight the coronavirus, triggering concerns about workers’ privacy and whether the practices will continue beyond the pandemic. “The temperature checks give employees and customers the feeling of safety and the idea that the company...

A Texas Court of Appeals reversed a jury verdict for the plaintiff on claims of trade secret misappropriation under the Texas Uniform Trade Secrets Act (TUTSA) and fraud. The Court reversed the misappropriation verdict because the jury form commingled valid and invalid theories of liability, and reversed the fraud verdict because the jury instructions permitted...

The US Department of Justice’s (DOJ) revised compliance program document “The Evaluation of Corporate Compliance Programs,” released June 1, 2020, helps organizations understand how DOJ evaluates compliance programs for effectiveness. Below are the the top takeaways from this revision that you should be aware of. For a deeper dive into this revision, listen to our...

Reversing an award of attorney’s fees, the US Court of Appeals for the Federal Circuit found that a district court abused its discretion in making an exceptional-case determination where patent and trademark infringement claims were reasonable. Munchkin, Inc. v. Luv N-Care, LTD., Admar International, Inc., Case No. 19-1454 (Fed. Cir. June 8, 2020) (Chen, J.)....

The COVID-19 pandemic has brought not only a healthcare crisis, but also one of the worst economic downturns in history. As businesses emerge from this crisis, there may be increased risk that employees may cross the line and engage in anticompetitive conduct. Therefore, it is critical that companies and individuals prepare now to ensure that...

The South Carolina Supreme Court (S.C. Supreme Court) affirmed a state Court of Appeals finding that information taken by a minority LLC member did not have the requisite independent value to be considered a “trade secret” under the state’s Trade Secrets Act. Wilson v. Gandis, Case No. 27980 (S.C. June 3, 2020) (James, C.J.). In...

Like the days of the Old West, last week a masked gang held up local businesses demanding their wallets. Unlike the days of the Old West, this was not the hole-in-the-wall gang, but the California State Assembly who, on June 10, 2020, approved AB 2570, a bill that authorizes tax-based false claims actions. If passed, AB...