Author: NCBA BLOG (page 1 of 22)

Damned If You Do: Supervisors Could Be At Risk For Reporting Sexual Harassment

By Michael A. Kornbluth and Joseph E. Hjelt

On June 7, 2017, Judges Traxler, Motz and Agee on the U.S. 4th Circuit Court of Appeals issued a decision which could make employees think twice before they report other individuals’ complaints of sexual harassment in the workplace. The facts of the case, Villa v. CavaMezze Grill, LLC, No. 15-2543, 2017 WL 2453254 (4th Cir. Jun. 7, 2017), are alleged as follows:

In October of 2013, Judy Bonilla, a former employee at Cava Mezze Grill in Merrifield, Va., told Patricia Villa, a low-level manager at Cava Mezze, that the restaurant’s General Manager had offered her a raise in exchange for sex. Villa then approached Rob Gresham, the restaurant chain’s Director of Operations, to report the conversation with Bonilla and convey her suspicions that the same quid pro quo offer had been made to another former employee. Gresham is close friends with the General Manager who was accused of sexual harassment. In investigating Villa’s report, Gresham interviewed Bonilla and the other individual Villa suspected had been offered a raise in exchange for sex. Sergio Valdiva, Area Manager, accompanied Gresham in the interview with Bonilla to serve as a translator. In their interviews with Gresham and Valdiva, both employees denied the allegations and denied having ever said anything to Villa. At the close of the investigation, Gresham fired Villa, telling her that he concluded that she fabricated the story.

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MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please click on the links below for the most recent updates.

Revision of Patent Cooperation Treaty Procedures: Final rule.  Effective July 1, 2017

Updated Trademark Trial and Appeal Board Manual of Procedure (TBMP)  June 2017

 

Avoiding the Bullseye: Cybersecurity Lessons From the Target Litigation

David M. Furr is a member of the North Carolina Bar Association’s newly created Privacy and Data Security  Committee, which begins work in the upcoming bar year. 


By David M. Furr

Traditional retail in the United States has had two distinct issues negatively affecting its survival in this decade. First, the proliferation of E-commerce companies has severely reduced the profitability of the traditional brick and mortar businesses as shoppers’ habits are fundamentally changing. In the first four months of this year, nine retailers have filed for bankruptcy — Payless Shoes, hhgregg, The Limited, RadioShack, BCBG, Wet Seal, Gormans, Eastern Outfitters and Gander Mountain — with the closing of hundreds of stores.Many other retailers are shuttering stores at such a record pace that 2017 is being bannered as the year of retail bankruptcies.2

Second, retail has been particularly hard hit by cybersecurity breaches because of the wealth of Personal Identity Information (PII) collected and, unfortunately retained, by the retailers. The 2013 massive compromise of retail giant Target’s systems has been litigated in the courts and subject to an extensive Multi-State Attorney General task force action that has produced record payouts to plaintiffs.

The purpose of this paper is to use the Target litigation as a backdrop of the cybersecurity measures a business must have in place if it is to protect adequately the PII of its lifeblood — the customers. While common tort and specific statutory theories serve as the foundation for these claims, the sophistication of the Plaintiff counsels’ deep dive into the actual technology facts serve as an important road map to safe cybersecurity.

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The Devil and the Details: Constructive Discharge, Punitive Damages and the Mark Of the Beast

By Kevin P. Murphy

According to Revelation, the wild beast will seduce mankind to follow its evil ways and will cause everyone, small and great, wealthy and poor, free and servant, to have the Mark of the Beast imprinted on their right hand or on their foreheads. Revelation 13:11-18. According to the 4th Circuit, career coal miner Beverly Butcher Jr. had the right to opt out of a new biometric hand scanner policy implemented by Consol Energy, Inc. in light of his sincerely held religious belief that placing his hand in this scanner would mark him as a follower of the antichrist, to be tormented with fire and brimstone for all eternity. U.S. EEOC v. Consol Energy, Inc., No. 16-1230 (4th Cir. June 12, 2017).

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Talking To All Generations: Manage Your Online Reputation

By Matt Cordell

When I have the opportunity to give advice to law students and young lawyers, one of the things I try to impress upon them is the importance of their reputations, including their “online reputations.”

Usually the comment is quickly met with a knowing nod. Everyone seems to know that their reputation is important. However, having witnessed many lawyers of all ages impair their professional reputations online, I have begun to realize that many of us fail to recognize some aspects of maintaining our online reputations, and I have begun to be much more specific in my advice to younger lawyers.

Older lawyers, I have observed, often seem to understand some of the things that younger lawyers may miss, but older lawyers can have their own blind spots in this area. In this short piece, I would like to describe a few observations about lawyers’ online reputations and suggest that young lawyers and older
lawyers can learn much from one another regarding this topic. (There are, of course, plenty of exceptions to my generational generalizations.)

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Lessons Learned From the Former ‘Fat Boy’: Tackling Childhood and Adolescent Obesity

By Russell Rawlings

Rumor has it the incidence of childhood and adolescent obesity has reached epidemic proportions in this country. That would stand to reason, considering the fact that obesity has also become rampant within the adult population.

In other words, the kids ain’t driving themselves to the grocery store.

I am neither a physician nor a psychologist, so nothing I would ever say about weight and wellness should ever be mistaken for professional advice, especially when it comes to childhood and adolescent obesity.

But I have lived through both, and although it has been nearly 40 years since I experienced my transformative weight loss, I will never forget what it was like to be young and overweight. I will never forget what it was like to be the “fat boy.”

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Bioethics Master Strengthens and Expands Health Care Practice

NCBA Health Law Section / N.C. Society of Health Law Attorneys


The Wake Forest Bioethics Graduate program admits attorneys seeking to advance their knowledge of health care ethics and public policy, as well as joint-degree law school students who realize the career flexibility that comes with graduate training in the moral dimensions of health care policy. Bioethics education can deepen a health care lawyer’s understanding of the broader social context of various aspects of the life-sciences industry. In depth study of both classic and emerging bioethical dilemmas can sharpen lawyer’s skills in representing health care clients. Or, a graduate degree can be a springboard for a lawyer looking to move into management or public policy career paths.

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MacCord’s List: IP Notices & News From Art MacCord

By Art MacCord

Art MacCord is a patent attorney with 38 years of experience. He keeps an eye on the U.S. Patent and Trademark Office and the U.S. Copyright Office for new rules and practice tips of interest to intellectual property attorneys. Please click on the links below for the most recent updates.

Copyright Office Publishes Recent Review Board Decisions

Copyright Office Releases an Updated Draft of the Compendium of U.S. Copyright Office Practices, Third Edition

 

Section 1557 Of the ACA, Association Discrimination, and Health Insurance Coverage For an Employee’s Dependent With Gender Dysphoria

By Joseph S. Murray IV

The regulations implementing Section 1557 of the Affordable Care Act (“ACA”) prohibit covered health insurance providers from discriminating against individuals based on gender identity (which is defined as sex discrimination) and require covered entities to treat individuals in accordance with their gender identity. 42 U.S.C. § 18116 & 45 C.F.R. § 92 et seq. Based on these requirements, covered health benefit plans cannot limit or exclude medical services related to gender dysphoria and gender transition. Employees and their covered dependents can directly sue employers and benefit plans to enforce the Section 1557 non-discrimination provisions.[1]

But what if Section 1557 does not apply to an employee’s health benefit plan? Can employees use association discrimination claims to require their employers’ health benefit plans to cover gender transition surgery and related medical treatments for the employees’ dependents?[2] In a recent case, the 8th Circuit Court of Appeals upheld the dismissal of an employee’s Title VII association discrimination claim since such claims are based on the employee’s own protected status.

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Texas, Delaware or Good Ole North Carolina?

By Tara Muller

In a much-anticipated ruling on May 22, 2017, the U.S. Supreme Court in TC Heartland v. Kraft Foods narrowed the definition of venue for patent infringement cases. Until last week, a patent holder could sue an alleged infringer in any venue where the defendant was doing business, causing forum shopping and a very high concentration of patent cases in plaintiff-friendly venues like Eastern District of Texas. Roughly 40 percent of infringement suits, many filed by non-practicing entities, have been filed in ED TX in the last two years. Now, however, patent enforcers must file suit in the judicial district in which the corporate defendant “resides” (meaning state of incorporation) or where it has committed alleged acts of infringement AND has a regular and established place of business. Experts predict TC Heartland will increase the cost of litigation and drastically end forum shopping. They forecast a flood of litigation into other states, including Delaware, where so many companies incorporate, or tech-sector states like California and New Jersey.

Possible?  Sure, but litigators are a clever bunch when they put on their thinking caps. If they found work-arounds to the America Invents Act, they may just find creative ways to stay in their favorite jurisdiction, perhaps by shifting their focus from producers to sellers and retailers.

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