A Bad Day for Labor

by Erica Intzekostas on June 30, 2014

In two 5-4 decisions today, the Supreme Court chipped away at the rights and power of employees and public sector unions. Both decisions, although narrowly drawn, will likely open the door to additional lawsuits that will attempt to further weaken labor rights.

In the Hobby Lobby case, the Court created another exemption to the Affordable Care Act, holding that closely-held corporations can refuse to cover birth control as part of their employee group healthcare plans for religious reasons, essentially extending first amendment religious freedom protections to corporations through their owners. Although the Supreme Court attempted to make its decision apply to a very narrow set of circumstances, it will likely serve as a pathway to further exemptions (and possibly even in areas other than healthcare) based on the religious beliefs of the owners of a company. Some of the other ACA exemptions include prisoners, undocumented immigrants, Native Americans, very low-income individuals, and employers with fewer than 50 employees.

In Harris v. Quinn, the Court ruled that a group of non-union home health care employees in Illinois could not be forced to pay fees to cover the cost of collective bargaining (often called “agency fees”), as required by Illinois law, even though they financially benefited (quite significantly) from the collective bargaining agreements that were made possible by the union who represented their interests. Although the rationale used by the Court in reaching its decision was that forcing these individual employees to pay violates their first amendment freedom of speech and association rights (and thus seemingly protecting the rights of individual laborers), it ultimately undermines the power of the union that represents them because it chips away at the union’s power to collectively bargain. The Illinois law, which made possible by a 1997 Supreme Court case, Abood v. Detroit Board of Education, prevents non-union member public sector employees from being able to essentially get a free ride (i.e. not paying dues but benefiting from the higher wages bargained for by the union — because the law requires unions to cover all employees in their collective bargaining agreements). A majority of states have similar laws. The Supreme Court did not go so far as reversing the 1977 case by saying that such state laws are unconstitutional. Rather, the Supreme Court held that the particular group of employees that were the plaintiffs in this case were not actually public sector employees because they are hired by individual patients and work inside those patients’ homes. That said, the opinion leaves little doubt about the majority’s disdain for the Abood case. It will not be surprising if the ruling, and Justice Alito’s harsh criticism of the Abood case expressed in the majority’s opinion, encourages anti-union groups to seek other ways to further undermine unions.

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No Cell Phone Searches Without a Warrant

by Erica Intzekostas on June 25, 2014

In a 9-0 decision today, the United States Supreme Court ruled that absent objectively exigent circumstances, police cannot search data on cell phones without a warrant. The 4th amendment protects people against warrantless searches and seizures. However, an exception has long existed to allow for limited searches made during an arrest. Interpreting this exception to include searches of a cell phone would mean that a person’s entire digital life could be subject to a warrantless search. Smart phones have the capacity to contain or link to just about all of a person’s digital information, including emails, calendars, social media accounts, even bank accounts and online purchases. As Justice Roberts pointed out, cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Here on Earth in the United States of America, information on a cell phone can now only be accessed by police after obtaining a search warrant.

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What the Redskins Trademark Cancelation Means

by Erica Intzekostas on June 18, 2014

The USPTO today canceled 6 federal trademark registrations containing the term “Redskins” based on a ruling by the Trademark Trial and Appeal Board that the term Redskins is (and was at the time of registration) disparaging to Native Americans. The ruling was the result of a claim filed 8 years ago by plaintiff Amanda Blackhorse, a Native American of the Navajo tribe.

The Washington football team plans on appealing the ruling and will be able to keep its trademark protection during the appeals process. If they lose the appeal, they will lose federal trademark protection. However, even if the team loses their federal trademark protection, they will still be able to use the name, be known as the Washington Redskins, and sell merchandise with the brand name. They will also continue to enjoy common law rights to their name, which means that others cannot start selling merchandise with the Redskins name and logo without the team’s permission simply because they lost their registrations. In other words, despite the team’s assertions (as part of its original defense in a related 1999 case that was thrown out on a technicality) that loss of its trademark registrations would devastate the team, it is quite possible that it would not have much, if any, legal impact. The affect on player and fan morale, on the other hand, could be another story.

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Where’s the (Pomegranate) Juice?

by Erica Intzekostas on June 16, 2014

In September 2008, Pom Wonderful, LLC, the makers of pomegranate and pomegranate blend juices, filed a Lanham Act claim against Coca-Cola Company. The subject of the claim was Coca-Cola’s Minute Maid brand pomegranate blueberry juice. Pom Wonderful claimed Coca-Cola’s ads and labels regarding the juice drink were misleading and resulted in unfair competition. 

The Lanham Act is normally associated with trademark infringement claims. But the Lanham Act goes beyond trademark protection and creates a cause of action for individuals and companies against competitors for unfair competition through false or misleading advertising. Coca-Cola, however, claimed that Pom Wonderful’s Lanham Act claim was precluded by another federal statute governing food labeling: the Federal Food, Drug, and Cosmetic Act (the FDCA), which grants the task of policing food and beverage labeling to the FDA. Both the District Court and the Ninth Circuit Court of Appeals agreed with Coca-Cola. The case made it all the way to the Supreme Court, which unanimously ruled last week that Pom Wonderful’s false advertising claim can move forward.

Pom Wonderful claims that the name, marketing, labeling, and advertising of Coca-Cola’s Minute Maid pomegranate blueberry juice is misleading because of the minuscule amount of pomegranate and blueberry juice actually contained in the blended juice drink. According to case records, Coca-Cola’s Minute Maid pomegranate blueberry juice only contains .3 percent pomegranate juice and .2 percent blueberry juice. 99.4% of the blend is actually (the far less expensive) apple and grape juices, and the remaining .1 percent is raspberry. Although the label does indicate (in smaller font just below the label) that the drink is a blend of 5 juices, and includes a picture of all 5 fruits, Pom Wonderful claims that calling the drink “pomegranate blueberry juice” is misleading and that consumers have and will mistakenly believe that the drink is primarily made up of pomegranate and blueberry juices. Even if consumers believed, based on the picture and the language about the drink being a blend of 5 juices, that the drink contains fairly equal parts of all 5 juices, that is still a far cry from the reality of the mix. Pom Wonderful claims that this confusion has resulted in a loss of sales because, by using the less expensive ingredients, Coca-Cola is able to sell its Minute Maid Pomegranate Blueberry juice for much less than if it contained primarily pomegranate and blueberry juices.

The legal question at issue for the Supreme Court was whether Pom Wonderful was precluded from bringing a claim under the Lanham Act because of the FDCA. Unlike the Lanham Act, competitors cannot bring a claim under the FDCA. The Supreme Court, in reversing the District Court’s and the Ninth Circuit’s ruling, held that competitors can bring Lanham Act claims challenging food and beverage labels that are governed by the FDCA. The pomegranate case will now be remanded back to the District Court to be decided on its merits as a Lanham Act unfair competition claim. In the meantime, Coca-Cola continues to sell its “pomegranate blueberry” juice under the contested label.

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We’ve Moved!

by admin on May 9, 2014

We moved! But don’t worry, we haven’t gone far… We’ve simply moved to bigger offices upstairs. Please note our new address:

The Erb Law Firm, PC
20 South Valley Road
Suite 100
Paoli, PA 19301

Our phone numbers, fax number and email addresses remain the same.

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Naughty or Nice: Which Would Bubbie Choose?

by Erica Intzekostas on March 20, 2014

My Bubbie always told me I should find a “nice Jewish boy” to settle down with. I dutifully did as my Bubbie advised. But what about all the nice Jewish single women who are still looking for their nice Jewish soulmate? Where are they to find a future husband to make a Jewish home with? Luckily for them there’s the Nice Jewish Guys calendar, which can be ordered from http://nicejewishguys.net/. There they can find photos and bios of “nice Jewish guys” that they can take “home to Mom”. And Bubbie of course, let’s not forget Bubbie.

But, oh no! What if instead these nice Jewish women get confused and inadvertently stumble upon a different calendar, one that features naughty Jewish boys?! (Funny, my Bubbie never warned me about the naughty variety of Jewish boys.) Well, apparently, there really is such a thing as naughty Jewish boys, and they can soon be found lurking on the pages of the Naughty Jewish Boys calendar, which is still in production but can be pre-ordered from http://www.naughtyjewishboys.com/.

In an effort to save these young naive Jewish women and their hopeful adoring Bubbies from inadvertently purchasing a calendar filled with naughty Jewish boys (and making sure these nice Jewish women stay on the right path to Jewish marital bliss), the owners of the Nice Jewish Guys calendar and their lawyers sent a letter to the makers of the Naughty Jewish Boys calendar asking them to stop promoting these Naughty Jewish Boys calendars so as not to “cause confusion in the marketplace.” But alas, the owners of the Naughty Jewish Boys calendars are refusing to back down, claiming that “aside from the existence of Jewish males in the calendar our aspirations are different.” I think my Bubbie would agree that their aspirations are indeed different. I also think my Bubbie would not have been at all confused  … and most likely would have chosen the Nice Jewish Guys calendar for her daughters and granddaughters.

From a legal standpoint, the “what would Bubbie do?” question is an important one, because at the heart of a trademark infringement claim is the question of whether the average target consumer is likely to be confused. So if this case actually goes to court, a judge will have to decide whether Bubbies and young single Jewish women are likely to be confused between a calendar featuring nice Jewish males and one featuring naughty Jewish males. In the meantime, all the Bubbies can continue to do everything in their power, including purchasing Nice Jewish Boys calendars (and forsaking the Naughty ones), to make sure their daughters and granddaughters find nice Jewish boys. Now excuse me while I put in my pre-order …

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Permission to Call

by Erica Intzekostas on October 1, 2013

Major changes to United States telemarketing laws are just around the corner. The changes, issued and finalized by the FCC more than a year ago, are to the Telephone Consumer Protection Act, one of the main pieces of legislation that governs how telemarketers can use telephones to market products and services to consumers. These new rules, aimed at reducing the number of unwanted telemarketing calls, especially to cell phones, are expected to have a significant impact on the telemarketing industry. Under current law, telemarketers can call cell phone lines as long as they have the consumer’s prior consent or if they have an “established business relationship” with the consumer. The new rules, which come into effect later this month on October 16th, eliminate the “established business relationship” exception and significantly narrow the ways in which a telemarketer can obtain a consumer’s consent.

Under the new rules, before making either (a) an autodialed or prerecorded telemarketing call to a cell phone or (b) a prerecorded telemarketing call to a residential land line or a cell phone, the telemarketer must obtain the “unambiguous written consent” of the consumer and must provide the consumer with “clear and conspicuous disclosures” of the consequences of the consent (e.g. that the consumer will receive telemarketing calls). To qualify as unambiguous, the consent must specify the consumer’s phone number and the name of the business that would call that number. The language of the consent must also make it clear that no purchase of any product or service is conditioned upon the consent. (In other words, the consumer does not have to agree to receive telemarketing calls in order to make a purchase.)

The resulting problem for telemarketers is twofold. One, the elimination of the “established business relationship” is a big deal because that exception allowed businesses to call their existing and recent customers to market additional products. Two, many businesses obtain phone numbers of potential new customers by purchasing legally obtained phone numbers from other companies. Those companies were able to obtain the required consent by simply having consumers agree to receive telemarketing calls in general. Now, however, the law requires that the consumer must agree to receive telemarketing calls from or on behalf of a specific company. In other words, the consent, in order to be valid under the new rules, must specifically inform the consumer of the name of the company that will be calling.

Electronic and digital forms of signature are acceptable as long as they comply with applicable federal and state law, such as the E-SIGN Act. However, the business bears the burden of proving that a clear and conspicuous disclosure was provided, that the consumer unambiguously consented to receive marketing calls at the number called, and that it was clear that the consent was not a condition of purchase. Telemarketing companies need to make sure they comply with these new rules or face steep penalties. Even an inadvertent violation of these rules can result in fines of $500 per violation. (The fine is $1,500/call for intentional violations.) These numbers may sound small for a major telemarketing company, but they can quickly add up — not to mention the time and money expended to address complaints.

Only time will tell whether the new law actually reduces the volume of unwanted telemarketing calls, or if it merely creates more hoops for telemarketers to jump through. Keep in mind, however, that the new rules do not affect debt collection calls because those are not considered telemarketing calls. So if you owe money, don’t expect those debt collection calls to stop!

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Hey, Good Looking

by Raelynn Zappulla on July 22, 2013

Pop quiz: Which of the following is not an acceptable reason for termination?

(a) Your repeated, unapproved missed days from work

(b) Your alcoholism is affecting your work performance

(c) You’re way too good looking

(d) You stole money

The answer is not c, but all of the above. On July 12th, the Iowa Supreme Court determined for a second time that James Knight, 53, was not guilty of gender discrimination after firing Melissa Nelson, 32, for being too irresistible.

Nelson, a married mother of two, worked for Knight at his dental office for ten years. In the final months of her employment, Knight claimed Nelson’s clothes were distractingly tight and that his arousal was a threat to his marriage. Nelson, who reportedly saw Knight as a father figure, claimed she wore standard scrubs like the other dental assistants in the office.

Knight’s wife, also an employee at the dental office, discovered text messages on her husband’s phone between he and Nelson. They discussed things such as how her infrequent sex life would be like “having a Lamborghini in the garage and never driving it” and how often she experienced orgasms (she didn’t respond), but mentioned to her in person that “if she saw his pants bulging, she would know her clothing was too revealing.’

Knight’s wife demanded Nelson be terminated and after consulting with their pastor, Knight obliged, offering Nelson one month’s severance pay.

According to The Daily Mail UK, Nelson’s attorney, Paige Fiedler is concerned about how this ruling will affect women in the workplace.

“These judges sent a message to Iowa women that they don’t think men can be held responsible for their sexual desires and that Iowa women are the ones who have to monitor and control their bosses’ sexual desires,’ Fielder said. ‘If they get out of hand, then the women can be legally fired for it.”

In the same article, Knight’s attorney, Stuart Cochrane, is quoted as defending the courts ruling stating “while there was really no fault on the part of Mrs. Nelson, it was just as clear the decision to terminate her was not related to the fact that she was a woman. The motives behind Dr. Knight terminating Mrs. Nelson were quite clear: He did so to preserve his marriage.”

Since the termination was based on feelings and not gender, the all-male court decided 7-0 that this was not gender discrimination even if Nelson claims this wouldn’t have happened if she were a man. Nelson has since been replaced by a woman, adding to his all-female staff.

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How important are the results that come up when someone does an internet search on you? If you ask Lee David Clayworth, he’ll likely say “very.”

We’ve all heard of the crazy ex that spreads rumors or unflattering photos after a bad breakup on Facebook, Twitter or the like. You might have even had one. Lee Ching Yan takes the crazy ex label to a completely new level.

For several months, Lee David Clayworth and Lee Ching Yan dated while he was on a teaching assignment in Malaysia in 2010. Like many relationships, theirs went south. After the breakup, Yan broke into Clayworth’s home and stole his personal computer and other items. She hacked into his email and Skype accounts and began sending emails claiming he has had sexual relationships with his students. Memes with Clayworth’s semi-pantsless image with his name and the words “genital herpes”, “loves young boys and old man”[sic], and “would you hire this guy as a teacher?” spread across Google image search results. When searching his name, liarscheatersrus.com is the first result. This has gone on for two and a half years.

Clayworth had sued Yan in a Malaysian court where she was found guilty of defamation, however due to “differing international interpretations of cyber-law”, Malaysian officials cannot demand American search engine companies to remove the posts, according to Huffington Post Canada. Yan has reportedly fled the country, possibly to Australia, where she continues her cyber assault. Clayworth returned to Canada in 2012 where he struggles to gain employment, possibly due to his negative internet reputation.

According to an article on Mashable.com, Kaplan Test Prep surveyed college admissions officers and found that in 2012, 35% of officers that searched the internet found something negative about an applicant that affected their chances of acceptance. That number has increased from 12% the year prior.

A survey completed by CareerBuilder.com states that two in five companies use social networking sites to gain information about their potential employee. A search on “Lee David Clayworth Facebook” brings up a BlackList Planet page accusing Clayworth of cheating on his girlfriend. An unsavory online reputation has become such an issue that companies such as Reputation911 and Massive PR specialize in restoring brand and reputation management.

So what comes up when you google me? My LinkedIn page, about a million pictures of me with my dogs, links to some blogs I authored, my slow Broad Street Run results and an article from 1995 when I won a figure skating competition. Yes, I may be a bit on the tame side but had a potential employer did a search on me and found pictures of me drinking from a beer bong in front of city hall, my employment options may be a little scarce. For the record, that picture does not exist.

If you’ve ever suffered through a bad breakup, it may be worthwhile to do a vanity Google… just in case. Your future may depend on it.

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Don’t sue the messenger

by Chris Erb on April 26, 2013

My children spend much of their time tattling on, arguing with, and otherwise maligning their siblings, presumably in the hope of achieving some parentally-conferred advantage. In the legal world those statements, if false, would generally be referred to as defamation, although Wikipedia lists a host of synonyms or near synonyms including “calumny, vilification, traducement, slander … and libel.” I personally like “calumny,” since it sounds vaguely Dickensian, but either way those statements would be considered actionable under the common law.
In the past, the distribution of those types of statements was necessarily limited to people within reach of the speakers voice, with wider distribution necessitating a whole lot of stamps and envelopes or the cooperation of the New York Times. More recently, the internet has made it possible to broadcast those statements well beyond the confines of a home, or a town, or even a state at a very low cost, emboldening a host of would-be defamers. Equally importantly, the speakers are often anonymous, and may be located in a distant state or country beyond the reach of their victim’s local courts or law enforcement.
As a result, frustrated victims (or those who perceive themselves victims) often look to a bigger but more easily reached target – the internet host or service provider. Of course, in most instances the host has no idea of the nature of particular customer’s content until told, and even then the host is hard pressed to determine the relative truth of, say, a blog post or a website. Mindful of this, and in response to a number of early internet cases, Congress inserted what became section 230 into the otherwise ill-fated Communications Decency Act (“CDA”) which confers immunity on an ISP for the speech of its customers for many types of speech.
Section 230′s protections are broad, but there are some important limitations. Immunity does not extend to intellectual property rights, which are governed by existing IP law as well as newer laws like the DMCA. Immunity can also be lost when the ISP is or becomes the speaker or the provider of the content, rather than the infrastructure on which the content is disseminated.
Otherwise, an ISP or even a website which allows third parties to provide content has a fairly solid defense against claims which are based on the content of a third party’s statement. While the protection isn’t without limits, those seeking the removal of content should generally focus their efforts on the speaker, rather than the ISP.

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