The 2016 DRI Appellate Advocacy Seminar

Posted on January 20, 2016 08:54 by Sara Kobak

I am writing to encourage folks to attend the upcoming 2016 DRI Appellate Advocacy Seminar at the Scottsdale Resort at McCormick Ranch in Scottsdale, Arizona.

I have been involved with organizing the seminar panel on appellate arbitrations, which features: Eric Tuchmann, General Counsel for the American Arbitration Association (AAA); Michael Garone, appellate practitioner and counsel of record for the petitioner in Hall Street Associates v. Mattel, 552 U.S. 576 (2008); and Maura Abeln Smith, former chief legal officer for a number of major companies including Owens Corning, PepsiCo, International Paper, and most recently, the Delhaize Group.  The panel discussion is going to be very interesting and includes insights on strategic considerations with handling arbitration appeals from different perspectives.

If you haven't attended a DRI Appellate Advocacy seminar in the past, I highly recommend it.  My attendance at a past seminar opened doors for me to get more involved with DRI, and it is a great way to connect with appellate litigators from across the country.  The deadline for early registration discounts and hotel discounts is January 26, so I recommend signing up soon. 

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Among the more frustrating nuances for employers in the wage and hour context is the potentially exempt status of registered nurses.  The Department of Labor’s Fact Sheet #17N explains that “registered nurses” working on a salary basis in an amount meeting the salary threshold “generally meet the duties requirements for the learned professional exemption.”  That is “generally” reassuring, yet a Westlaw search “generally” contains dozens of cases nationwide where an RN’s exempt status is successfully challenged.  

Though not a case directly involving nursing, the Fourth Circuit opinion in Williams v. Genex Services, LLC, 2015 WL 9259057 (4th Cir. Dec. 18, 2015) should be helpful to employers.  In Williams, a Field Medical Case Manager (“FMCM”) sued for unpaid overtime, challenging her employer’s decision to treat her as exempt under the learned professional exemption.  As an FMCM, Williams was responsible for assessment, planning, coordination, implementation and evaluation of injured/disabled individuals involved in the medical case management process.  She works as an intermediary between carriers, attorneys, medical care providers, employers and employees to ensure appropriate and cost-effective healthcare services and a medically rehabilitated individual who is ready to return to an optimal level of work and functioning.  

Though there is no direct patient care involved, under Maryland law the FMCM position requires the credential of being a registered nurse as well as a Workers’ Compensation Case Manager Certification from the Maryland Board of Nursing.  These credentials played a crucial role in the Fourth Circuit’s decision to affirm the lower court’s summary judgment for the employer.  The lower court relied on the credential considerably, holding that because Williams’ status as a registered nurse was a requirement, she performed work in a field of science that is customarily acquired by a prolonged course of specialized intellectual instruction, a hallmark of exempt learned professionals.  Taking it a step further, the Fourth Circuit held that Williams regularly uses her skills, training, and knowledge as a registered nurse to perform her duties as an FMCM.  Despite the lack of direct patient care, the Fourth Circuit noted that Williams develops individual care plans by reviewing injured workers’ medical records and interviewing workers about their medical conditions and recovery.  

Also, though not meeting the $100,000 threshold for the highly paid exemption, the Court noted that Williams’ $80,000+ annual salary cast doubt over whether she was in the class of employees intended for FLSA protection, citing earlier opinions which held that the FLSA was meant to protect “low paid rank and file employees.”  

Though the Fourth Circuit did not come out and say all registered nurses are exempt (so long as they are performing work related to their certification), the opinion adds some much needed predictability for employers.  

Clarity and predictability should be a benefit to all in the wage and hour field, and is much needed with regard to nurses.  


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Having defended lawyers for thirty years and been in law firm risk management for fifteen years, I find myself becoming like the rural radio preachers of my younger days.  These folks would get on a topic and pound away at it, almost without breathing.  They connected all their thoughts with “and-a” and kept on going.  I hope I am not that strident about you going to legal hell if you do not listen, but I freely admit to believing in the mission of preventing losses in the law practice as a reverse way to make money.

The practice of law is stressful and hard enough.  You do not want to add in the cost of claims and the effect on your professional reputation by you not giving the necessary effort to prevent these losses.  More importantly, a claim will cost you money.  I do find myself regularly preaching that good loss prevention is both good business and even better client development and relations.

The approach of staff and lawyers becomes quite different when it is made absolutely clear to all that the law firm pays attention to both the quality of its work and its professional obligations.  Task someone (in any size office) to be the ethics and conflict person for the firm.  Have someone be familiar with your professional liability coverage and its requirements, and have someone be your quality control person.  It can be one, or several, but you will be making money, rather than spilling it, with preventable types of claims. 

Larger firms recognize this and often have one of its lawyers serve as its own General Counsel.  Some even have a separate conflicts staff under a lawyer’s management.  While smaller firms have to do it differently, they still need to have some established framework to:

-Screen for conflicts

-Discuss conflicts resolution

-Obtain and manage its LPL coverage

-Monitor for ethics issues

-Perform quality control on their work

-Educate all in the office on loss prevention

Once everyone knows these things matter, they then get noticed, reviewed, and monitored.  The tone or approach of a firm to this can make a difference in its bottom line.  I often say small slips can make big falls.  Likewise, small preventative efforts matter.  Mistakes can be caught and avoided with even basic loss prevention.  Conflicts and ethical issues can be better addressed when the basics of a loss prevention program exist in any size office.

Of course, you could ignore these suggestions and just plow on without taking this time, and you would then deal with:

-Payment of your deductible to another firm

-Loss of lawyer and staff time

-Damage to the firm’s reputation

-Loss of clients

-Disgorgement of your fees already received

-Inability to get coverage

-Endure ethics complaints

So maybe you do need to take the time to do loss prevention in any office.

The unedited blog was posted on December 3 on Lawyering for Lawyers. Click here to read the original entry. 

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Some Needed Insurance in the Law Office

Posted on November 11, 2015 03:51 by Steve Crislip

We often joke that we lawyers knew more black letter law upon graduation from law school, or at the Bar Exam, than at any other time in our careers.  It is always that pesky change that affects what we know.  The statutory and the common law and the rules all change almost daily.  Maybe that is where the phrase “practicing law” came from because you have to constantly practice dealing with changes in order to survive as a lawyer.  In 1967 U.K. Prime Minister Harold Wilson said:  “He who rejects change is the architect of decay.”

In this changing environment, we all learned the basics of risk arising from the practice of law and most offices have comprehensive general liability policies for our offices and equipment and Lawyers’ Professional Liability (“LPL”) for negligence, errors or omissions with regard to client work.  While LPL is not required, most prudent lawyers do not want to risk their personal assets for such expected risk exposure.

Think now of the changes in your practice in just the most recent years.  Electronics have replaced the traditional pen and paper approach.  These changes then placed great emphasis on the protection of health and other private records that are now being used in electronic form.  You and your clients are now exposed to large costs and penalties if some of these records got loose in the process.  Well, the fact of the matter is that information in that form does get loose, probably far more so than when it was locked in your office in a file folder in a drawer. 

Let’s just look at this month’s news feed:

  • Office of Personnel Management said hackers stole 5.6 million fingerprints it had on file.  (All across the federal agencies)
  • Hackers stole federal personnel data on 21.5 million people including their social security numbers.
  • Excellus Blue Cross Blue Shield had 7 million files breached and its subsidiary Lifetime Healthcare Cos. had about 3.5 million exposed with all their personal and medical data.
  • 15 million T-Mobile customer records (including encrypted information) were stolen via Experian’s site.
  • 6400 American Bankers Association e-mails and passwords stolen and posted online.
  • Sony, Target, Anthem and Home Depot as just a few of the Fortune 500 to be breached in the past year.

So, if happened on this scale recently, it is likely that someone wanting something from your files has already done so, or will.   A law firm would be a great place to get sensitive and valuable proprietary materials, and a lot easier to hack than those listed above.  That just deals with the people trying to get in and obtain the information.  Add to that the inadvertent lost laptop with lots of medical data, etc., and you have plenty of risk and exposure from these changes in the practice.

So how well are you protected for this change and this new and unexpected risk?  You might have coverage if a client sues you, but then only for covered items and after your deductible under your LPL policy.  But the real cost of these types of breaches or data losses comes earlier from the immediate things not covered like:

  • Computer experts to discover all details and rebuild the hack;
  • Public relations costs;
  • Loss of reputation and business income losses;
  • Damages to injured parties, not necessarily your clients;
  • Notification costs;
  • Government investigations;
  • Employee claims.

The insurance industry responded quickly and began selling stand-alone cyber insurance policies.  Yet, it seems that few firms have such policies despite these being available from many sources with various types of protection at business acceptable cost.   Debra Cassens Weiss, reporting for the ABA Journal, noted a 2015 survey of 880 lawyers which had only 11 percent (of those responding) with cyber liability policies in place.  Significant numbers of those in this Bloomberg BNA’s Big Law Business survey did report that their firms had experienced computer viruses or hacking incidents.  Contrast all this with 80% of surveyed General Counsel of companies saying cyber security is their number one concern in 2015.  There is a human factors element involved with the law firms here also.  Lawyers do not want to reveal that their esteemed firm has been breached, and many also just do not know that they have been breached.

Dan Bressler in a recent Law Firm Risk Blog noted data from Mandiant which finds that 80 of the 100 biggest law firms in the U.S. have been hacked since 2011.  That being said, I believe the smaller your practice the easier it will be to be breached.

It does not appear this risk is a “Y2K” kind of issue that might not happen.  Just think of what you might need if all your files were breached.  Identifying who, what, when and where could cost a bunch.  How to fix it and how to notify all who had records with you would be a problem.  It would therefore appear reasonable to have such cyber insurance coverage and team up with experts to (1) help prevent the loss and (2) have all these resources on call if a firm laptop, for example, with class action medical files just disappears and the health care penalties have kicked in.

This blog was originally posted November 4 on Lawyering for Lawyers. Click here to read the original entry. 

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Categories: Insurance Law

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Employers frequently utilize tests and other assessments to determine which job applicants are best suited for a position. However, employers must ensure such assessments are race and gender neutral and do not unknowingly screen out protected classes or else risk liability. A test can be biased, even if it appears neutral on its face, by the statistical effect it has on the applicants considered for the job and ultimately hired.

The problem recently came to light by the Equal Employment Opportunity Commission (EEOC) which began taking steps to eliminate systemic bias from occurring in the recruitment, screening, and hiring of employees. According to the EEOC, despite progress, employment discrimination is widespread in the United States and can arise knowingly, and unknowingly, in screening assessments of potential employees.

One of the most recent cases involves the superstore chain Target, which last month settled a complaint filed against it by the EEOC alleging gender and race bias in hiring for $2.8 million. The settlement amount is considered high for a suit of its kind and will be divided among approximately 3,000 employees in accordance with the damages incurred by each.

According to the EEOC, for the past decade, Target had been utilizing hiring assessments for upper-level positions that were not sufficiently related to the job for which the test applied, in violation of Title VII of the Civil Rights Act of 1964. The EEOC agreed that, on their face, the tests were neutral. However, it contended that in practice the tests prevented certain races and genders from receiving jobs, and, in particular, that it screened out blacks, Asians, and women. In addition to the assessments, Target required a pre-employment psychological exam in violation of the Americans with Disabilities Act (ADA). Under the ADA, employers are not permitted to submit applicants to medical exams prior to receiving job offers.

In response to the charges, Target has agreed to monitor the hiring of its employees in a more careful manner as well as utilize expert consultants to train its employees on the proper administration of assessments and maintain better records.

Despite the large settlement, Target is not admitting any wrongdoing. “The EEOC has concluded that only a small fraction of the assessments administered during the relevant time period could have been problematic,” Target spokeswoman Molly Synder stated. “We continue to firmly believe that no improper behavior occurred regarding these assessments.”

This case should raise a red flag to employers who utilize tests and other assessments to screen job applicants. It is important that such tests do not disproportionately affect protected classes. Whether a test does have a biased effect on applicants can only be determined by employment statistics. However, careful review of screening tests prior to their use should be conducted to eliminate any potential for bias. Furthermore, Target’s improper utilization of pre-job offer psychological exams demonstrates a clear lack of legal leadership in the hiring process. Experienced legal counsel, were it utilized, could have prevented such an ADA claim by ensuring Target’s practices conformed to federal and state laws.


This blog was posted to Jampol Zimet LLP blog on September 29. Click here to read the original entry. 

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A Year Since Tincher

Posted on October 19, 2015 02:51 by Arun J. Kottha

About a year ago, the Supreme Court of Pennsylvania issued its opinion in Tincher v. Omega Flex, a landmark case in which the Court refused to adopt the Third Restatement of Tort for product liability law.  Where have we been since then?  Tincher is obviously cited for the proposition that the Supreme Court of Pennsylvania failed to adopt the Third Restatement for product liability cases - which the Federal Courts of Pennsylvania (wrongly) predicted it would do.  See e.g. McKenzie v. Dematic Corp., No. 3:12-250, 2015 WL 3866633 (W.D. Penn. 2015).  Post-Tincher decisions have also discussed the role of the jury.  For example, the court in McDaniel v. Kidde Residential and Fire & Commercial decided not to weigh evidence of product performance because it was the jury who must evaluate design defect theories if reasonable minds could differ as to whether the product was in a defective condition. McDaniel v. Kidde Residential and Fire & Commercial, W.D. Penn Case Nos. 2:12-cv-1439, 2:12-cv-1473, 2015 WL 1326332.  

Courts are still sorting through the policy implications of Tincher. One MDL court applied the Tincher doctrine to liability to the “bare metal” defense. Schwartz v. Abex Corp., MDL No. 875, 2015 WL 3387824 at *19 (E.D. Penn. 2015) (holding that a product manufacturer has a duty under Pennsylvania law to warn about the asbestos-related hazards of component parts it neither manufactured nor supplied only where the manufacturer knew that its product would be used in connection with a particular hazardous asbestos-containing component). Other courts are unwilling to read Tincher’s “tea leaves” too expansively regarding the scope of strict product liability without explicit language from the Supreme Court of Pennsylvania.  In re Zimmer Nexgen Knee Implant Products Liability Litigation, MDL No. 2272, 2015 WL 3669933 at *35 (N.D. Il. 2015).  

What has been your experience in Pennsylvania at the trial level since Tincher?  Has Tincher been used in other jurisdictions to advance (or detract) from the progress of product liability law?     


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Avoid Ageism in Promotional Practices

Posted on October 16, 2015 07:46 by Brenda Bannon

The Ninth Circuit recently reversed a summary judgment order issued in favor of the employer where during a promotional process, management had stated a preference to hire “younger, less experienced agents.” France v. Johnson, Dep’t of Homeland Security, __ F.3d __, 2015 WL 4604730 (9th Cir. 2015).

Fifty-four year old France applied for a new pilot program of operations agents that would receive a higher pay grade than the administrative agents. Four operations positions were created as a result of the pilot program and twenty-four eligible candidates applied. The applicants' ages ranged from 38 to 54 years.

The selection process consisted of ranking the applicants by their scores from a standardized agency test. Assistant Chief Patrol Agent (“ACPA”) Gilbert then invited twelve candidates for interviews in Washington, D.C. The panel of interviewers consisted of Chief Patrol Agent Gilbert and two other ACPAs. After the interviews, the panel selected six top-ranked candidates. Gilbert recommended four of the six to Chief Border Patrol Agent, who in turn recommended the same four candidates to the decision-maker -- the Deputy Commissioner.

France was the oldest agent to apply for the new program, and was rejected in favor of the four selected applicants who were 44, 45, 47, and 48 years old. France claimed that ACPA Gilbert had repeatedly approached him about taking retirement prior to this application process. Another agent testified that Gilbert had stated his preference to promote “young dynamic agents” to staff the new operations program.

Under the Age Discrimination in Employment Act (ADEA), this evidence alone was sufficient to overcome summary judgment and establish a prima facie case of discrimination for trial. The ADEA makes it unlawful for an employer to discriminate “because of [an] individual's age.” In reversing the district court’s order, the Ninth Circuit emphasized as follows:

When a plaintiff opposing summary judgment presents direct evidence of a discriminatory motive, we do not assess the direct evidence in the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The court then underscored its view that the above-described evidence provided both direct evidence and circumstantial evidence of discriminatory intent such that the traditional burden-shifting analysis was conducted.

The court concluded that France had established that he was (1) at least forty years old, (2) qualified for the position for which an application was submitted, (3) denied the position, and (4) the promotion was given to a substantially younger person. In so doing, the court adopted the Seven Circuit’s test for “substantially younger person:”

The Seventh Circuit has held that an age difference of less than ten years creates a rebuttable presumption that the age difference is insubstantial. Hartley v. Wisc. Bell, 124 F.3d 887, 893 (7th Cir.1997).

According to the Ninth Circuit, France’s evidence rebutted this presumption and demonstrated a prima facie case that his age was a significant factor in the promotional process. In response to France’s evidence, the agency provided legitimate nondiscriminatory reasons for not promoting France that were related to his qualifications to lead. Overall, the court concluded that the evidence presented by France was sufficient to demonstrate an issue regarding whether the agency’s reasons were pretext for discrimination such that a trial on the merits was required.

The court found significant that ACPA Gilbert created the new program for operations agents, had expressed a desire to promote young agents, was involved in the promotional process, had recommend the four finalists to the Chief, and had approached France about retiring. Such evidence was sufficient to demonstrate a genuine issue of material fact as to whether the agency’s stated nondiscriminatory rationale was pretext for discrimination. Even though Gilbert was not the final decision-maker, his alleged discriminatory motive was enough to defeat the agency’s motion for summary judgment.

Employers are reminded to keep discussions of an employee’s age out of the workplace. In promotional situations, the France case serves as a reminder that the comments of employees involved in the process – especially influential management employees – can create ADEA liability for the employer. The France court emphasized in its analysis that a case will likely head for a trial on the merits if there is either direct or circumstantial evidence that an applicant’s age was a significant factor to the employer during the promotional process. Even an age differential of less than ten years can provide probative evidence to establish a prima facie case of discrimination.

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Categories: Employment/Labor Law

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Over thirty-five years after Congress passed the Pregnancy Discrimination Act to amend Title VII of the Civil Rights Act, the United States Supreme Court decided that Employers must provide a light duty position to a pregnant worker as a medical accommodation if restricted by her doctor, and similar light duty positions are afforded to other non-pregnant employees with similar limitations on their ability or inability to work.1 The Court explained that the Pregnancy Discrimination Act is clear that Title VII's prohibition against sex discrimination applies to discrimination “based on pregnancy.” It also says that employers must treat “women affected by pregnancy ... the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). The Court decided the question of how this second provision applies in the context of an employer's policy that accommodates many, but not all, workers with nonpregnancy-related disabilities. Prior to the Young decision, courts frequently refused Title VII challenges to light duty policies that only applied to occupationally injured workers. A healthy pregnancy was not treated as a disability. 

Young involved a part-time UPS driver whose doctor provided her with a twenty-pound lifting restriction in the first several months of her pregnancy, and a ten-pound lifting restriction thereafter. Young’s job required her to be able to lift up to seventy pounds.  After her employer told her she could not work while under the lifting restriction, Young took a leave from work and eventually lost her medical coverage. She filed a Title VII and ADA lawsuit alleging that UPS discriminated against her due to sex and disability. Young pled a “disparate treatment” discrimination claim.  

UPS had bargained a union contract that provided for temporary light duty positions in the following three circumstances: 1) occupational injury; 2) ADA qualifying disability; and 3) temporary loss of DOT certification.  UPS argued that this light duty allocation was gender neutral and contractually binding.   

The federal district court granted UPS’ motion for summary judgment and the Fourth Circuit Court of Appeals affirmed.  The appellate court reasoned that the employer’s light duty allocation policy was gender-blind.  Because Young’s pregnancy was neither an occupational injury nor a disability, and it did not provide a legal obstacle such as a licensing issue to continue working, she was not comparable to the other workers who were provided temporary light duty positions. “Such a policy is at least facially a ‘neutral and legitimate business practice,’ and not evidence of UPS's discriminatory animus toward pregnant workers.2  The Fourth Circuit refused to treat temporary conditions caused by pregnancy more favorably for purposes of construing the PDA or providing claimed workplace benefits. 

The U.S. Supreme Court granted certiorari and reversed the Fourth Circuit.  The Court reasoned that although an employer may defend against such a claim by showing it had non-discriminatory reasons for treating pregnancy-related infirmities and other work-limiting conditions differently, a plaintiff can overcome that showing with evidence that the “employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden.” Such evidence may defeat summary judgment and send the case for trial.3 In reviewing Young’s evidence and arguments, the Court applied the familiar McDonnell Douglas burden-shifting framework.  In doing so, the Court focused on accommodations provided to other employees who were similar in their ability or inability to work. 

In concluding its decision, the Court posed the following question: “why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  The Court did not decide that UPS had intentionally discriminated against Young, but instead left a final determination of that question for the Fourth Circuit to make on remand, in light of the Court’s interpretation of the Pregnancy Discrimination Act. 

In light of the Supreme Court’s analysis in Young, employers should review their light duty or temporary alternative work policies. If a light duty policy provides disparate treatment to pregnant employees, it should be revised.  If an employer has available light duty positions, it may be prudent to make them available for both work-injured and non-work-injured temporarily disabled employees.  Accommodations provided to employees with injury-related lifting restrictions who are similarly situated in their ability or inability to work should correspondingly be provided to workers with pregnancy-related lifting restrictions who are similarly situated in their ability or inability to work.  Consulting with the employer’s attorney when these questions arise is recommended.


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By judgment of October 6, 2015, the European Court of Justice declared the Commission Decision 2000/520/EC of 26 July 2000 pursuant to Directive 95/46 on the adequacy of the protection provided by the safe harbor privacy principles and related frequently asked questions issued by the US Department of Commerce invalid. In that Decision, the European Commission had held that the U.S. ensures an adequate level of protection of personal data transferred to the U.S. under the ‘safe harbor’ scheme. As a consequence, many U.S. companies doing business in the EU had relied on the safe harbor principles when transferring personal data from the EU to the U.S. 

The judgment was issued in preliminary ruling proceedings and concerned the transfer of personal data of Mr. Schrems, a Facebook user residing in Austria, by Facebook’s Irish subsidiary to servers located in the United States. Mr. Schrems had argued that in the light of the revelations made in 2013 by Edward Snowden, the law and practice of the U.S. do not provide sufficient protection against surveillance by the public authorities of the data transferred to the U.S. The Court held that Commission Decision 2000/520/EC fails to comply with the requirements laid down in Article 25 (6) of Directive 95/46 in that it merely examined the safe harbor scheme but did not take into consideration that the scheme is applicable solely to the United States undertakings which adhere to it but not to United States public authorities. Public Authorities in the U.S. may thus interfere with the fundamental rights of persons, because national security, public interest and law enforcement requirements of the U.S. prevail over the safe harbor scheme. 

Due to the invalidity of Commission Decision 2000/520/EC, transfer of personal data from the EU to the U.S. can no longer be based on the safe harbor privacy principles. Companies that have so far relied on the safe harbor principles will have to react so as to ensure compliance in the future. The alternative routes had so far been the use of the EU Model Clauses pursuant to Commission Decision of 5 February 2010 or the implementation of Binding Corporate Rules (BCR) approved by the competent data protection authority. However, it remains to be seen if and to what extent the ECJ judgment of October 6, 2015 also has an impact on these alternative routes, because neither the EU Model Clauses nor BCR protect against surveillance by public authorities in the U.S. or other non-EU countries. It also remains to be seen how European data protection authorities react to the judgment. 

See press release by the European Court of Justice and full text of the judgment. 

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Court Issues New Decision

Vermont’s Lawsuit against Alleged Patent Troll Can Stay in Vermont State Court

Case Not About Federal Patent Rights and Does Not Belong In Federal Court

A federal appeals court has just affirmed Vermont federal Judge Sessions’ second decision to “remand” the case against MPHJ – the alleged “patent troll” – back to Vermont state court.

Procedural History Of The Case:

Vermont Attorney General William Sorrell originally filed this lawsuit against alleged “patent troll” MPHJ Technology Investments, LLC in Vermont state court claiming that MPHJ’s bad faith sending of numerous patent infringement letters to Vermont businesses and non-profit organizations violated Vermont consumer protection law. (The AG’s Complaint was not based on Vermont’s new Bad Faith Assertions of Patent Infringement Act (i.e., the “anti-patent troll” law), as that law had not yet been passed when the AG filed his Complaint).  MPHJ “removed” the case to federal court arguing that the case was really about its federal patent rights and therefore belonged in the federal court system.  The AG moved to “remand” the case back to state court and federal Judge Sessions did so, agreeing with the AG that the case was not fundamentally about MPHJ’s patent rights but rather about its behavior within Vermont.  MPHJ appealed that remand decision, and lost.  The federal appeals court agreed with the AG and with Judge Sessions that the case did not implicate patent law.  Therefore, the case was back in state court as originally filed.  The AG then amended its Complaint against MPHJ.  Thereupon MPHJ again removed the case to federal court.  MPHJ argued that the AG’s amendment invoked the new anti-troll law (even though the amended Complaint made no mention of the law), and that that law is unconstitutional, and therefore provided a basis for removing the case to federal court.  The AG responded by again moving to remand the case, stating emphatically that the amended Complaint did not implicate the anti-troll law and that the AG was not suing MPHJ under that law, but only under pre-existing Vermont consumer protection law.  Again Judge Sessions remanded, agreeing with the AG that the amended Complaint did not invoke the anti-troll law.  Again MPHJ appealed that remand order.  And, again, the same federal appeals court has now shot down MPHJ’s (second) appeal – agreeing with the AG and with Judge Sessions that the AG’s case against MPHJ is not based on the anti-troll law and has nothing to do with federal patent rights.

But What About Vermont’s Anti-Troll Law?

What is interesting about this decision – and about this entire case – is that it is about the legality or illegality of a patent-holders alleged trolling activities, but it is NOT about Vermont’s new anti-troll law. MPHJ’s second attempted “removal” of this case to federal court was an attempt to make this case about the constitutionality of the anti-troll law.  But that attempt did not work. This decision does not decide whether Vt.’s anti-troll law is or is not constitutional, nor whether it does or does not interfere with a party’s patent rights. The whole point of this jurisdictional decision is that that issue was not before the court, because, in turn, the AG is not suing under that law. Thus, this particular case will not involve, and will not test, Vermont’s first-in-the-nation state anti-troll statute.

So one might well ask: why is Vermont’s Attorney General so determined not to use the anti-troll law against an alleged patent troll?  Wouldn’t a state attorney general want to use his latest and greatest weapon to go after an alleged patent troll, and rise up, so to speak, against a challenge to the constitutionality of that law?  I assume the answer is, essentially, because the conduct by MPHJ that the AG is suing over in this case took place before the anti-troll law went into effect, and the lawsuit was filed before the law went into effect. Trying to apply that law retroactively against MPHJ might be problematic.  If MPHJ were to be found liable under the new anti-troll law, it could argue on appeal that that law shouldn’t have been applied to them in the first place because it wasn’t in effect at the time of their activities.

So What Now?

So what now?  After two years of procedural and jurisdictional battles that had nothing to do (at least in the view of the AG and the federal courts) with the merits of the consumer protection case, will the case now proceed in state court to litigation on the merits? 

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