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Paul Zimmerman
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Showing 132 posts from 2014.

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New Limits in New York on Commercial Depositions

On Monday, December 23, 2014, New York enacted a rule that will limit the number of depositions to 10 per side, in addition to a maximum of seven hours per witness in the State Supreme Court’s Commercial Division. (Read more)

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Perceived Whistleblower can Maintain an Action for Wrongful Termination

In Diego v. Pilgrim United Church of Christ (November 21, 2014), a California Court of Appeal held that an employer that fires an employee for reporting an alleged violation of a statute or regulation to a government agency can violate public policy, even if the employee did not actually make the report. In Diego, the plaintiff claimed she had been terminated from her position as assistant director of a preschool. She argued that the school’s director mistakenly believed that she had lodged a complaint with a state agency that caused an unannounced inspection of the school. According to the plaintiff, she was asked several questions indicating that the director thought that she had filed the complaint. Shortly after that conversation, the school terminated the plaintiff. The school asserted that the plaintiff had actually been terminated for insubordination. On appeal, the school argued that the plaintiff could not bring a whistleblower claim because she had never, in fact, made a complaint to a state agency.  (Read more)

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Franchisors Beware: You May Be on the Hook for Joint Employment

On Friday, December 19, 2014, the National Labor Relations Board (NLRB) issued complaints against McDonald’s franchisees and McDonald’s USA LLC, as joint employers, alleging labor law violations. Specifically, the NLRB is claiming that McDonald’s USA and its franchisees retaliated against their employees for participating in union-related activities by reducing hours and terminating employees who participated in fast-food worker protests.  (Read more)

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Being Proactive will Help Restaurants Comply with New FDA Rules

The Food and Drug Administration (FDA) recently released a final rule for publication in the Federal Register, which outlines new menu labeling regulations. The rules will apply to restaurant chains with 20 or more locations, as well as any “retail establishment that offers for sale restaurant or restaurant-type food.” Hence, grocery and convenience stores, movie theaters and takeout services, to name only a few, will all be impacted by the law. These establishments must be in compliance by December 1, 2015. (Read more)

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Court Dismisses Cyber-Attack Lawsuit Against P.F. Chang's for Lack of Actual Harm

Open a newspaper on any given day, and chances are that you will read about the impacts of a new cyber-attack: accessed consumer profiles, hacked credit card information, leaks of personal customer information, etc. The March 2014 Cost of Data Breach Study: Global Analysis (sponsored by IBM), reports that the average cost to a company suffering a cyber-attack is now approximately an astounding $3.5M (an increase of 15% over 2013). Not surprisingly, the number of cyber-attacks is rapidly increasing, and virtually every type of business is a potential target, including those in the food and beverage industry. As cyber-attacks increase, so do class-action lawsuits alleging businesses have inadequately maintained their security measures. Consequently, in addition to suffering the public relations nightmare, the victimized businesses must also incur the high costs of defending themselves against these lawsuits.  (Read more)

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InterContinental Hotels Group to Buy Kimpton Hotels for $430 Million

One of the world’s leading hotel groups, United Kingdom’s Intercontinental Hotels Group (IHG), has agreed to acquire boutique hotel specialist Kimpton Hotels & Restaurants for $430 million. IHG is excited about the deal because the boutique hotel segment is “the fastest growing segment in the industry.”  (Read more)

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In Major Shift, NLRB Allows Work Email Use for Union Organizing Purposes

The National Labor Relations Board (NLRB) has ruled in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, that employees can use work email for non-work activities, including union organizing. Previously, the NLRB held that employers could restrict the use of work email for organizing-related communications, while still allowing them to use work email for other personal reasons. Under this new decision, employers are not required to let employees use work email for organizing purposes, and can ban work email for organizing purposes during both work and non-work hours, but only if that ban is part of a total ban on non-work use of the email system. The NLRB made clear, however, that the ruling only applies to those employees who have already been granted access to the employer’s email system, and that employers may justify a total ban on non-work use of email where special circumstances make such a ban necessary to maintain production or discipline. And, if the employer does not implement a total ban, it can still apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline. This ruling applies to employers even if they do not have a unionized workforce.  (Read more)

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House to Vote Today on TRIA Six-Year Extension

UPDATE (DECEMBER 11, 2014): By a vote of 417 to 7, the House voted to approve the passage of the Terrorism Risk Insurance Program Reauthorization Act ("TRIA") of 2014.

One of the most anticipated decisions in the insurance industry may finally be one step closer to a resolution. The Terrorism Risk Insurance Act (“TRIA”), created in the wake of the 9/11 terrorist attacks, is set to expire on December 31 of this year—leaving many insurers uncertain regarding their potential exposure. With the new political makeup of Congress, a revised version of TRIA that could be passed in 2015 may look very different than the current legislation. (Read more)

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Foisting Patent Assertion Entity Indemnity Risk on Agencies Ignores Economic Realities

Patent Assertion Entities (PAE’s) commonly assert ownership status of methods and technologies, and seek to enforce infringements when the alleged “infringer” has failed to attain proper authorization (i.e., paying licensing fees). Patent trolls focus on aggressive litigation tactics, often threatening to sue hundreds, even thousands, of companies and create shell companies so defendants find it difficult to even know who is suing them. Patent troll lawsuits constitute the majority of all patent infringement claims, and exploit the fact that it is often difficult to discern the difference between a new technology’s function, versus the method by which that function is actually accomplished. Hence, these assertions are frequently vague and tend to claim ownership over common marketing methods in online and mobile marketing. For good reason, patent trolls have been the source of discussion and concern in the technology, media and advertising industries for many years.  (Read more)

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NYC Living Wage Law Adds Life To Minimum Wage Debate

If you are a business operating in New York City, you should be aware of a recent change, via Executive Order, to NYC’s “Living Wage” Law. The NYC Living Wage Law establishes a “minimum wage” based not on a standardized minimum, but upon the cost of living in a certain area. Up until recently, it applied exclusively to companies directly receiving City subsidies, but Mayor de Blasio’s recent Executive Order now changes that. (Read More)