LJN Newsletters

Sex-based stereotypes still play a role in workplace decisions in what has become one of the fastest growing areas of employment discrimination law: Family Responsibilities Discrimination ('FRD'). While overall the filing of employment discrimination cases has declined in recent years, FRD lawsuits have increased by 400% in the last decade; and FRD cases have a 50% success rate, compared with a 20% success rate for other employment discrimination cases.

Recent developments you need to know.

While the rhyming nature of these two Web sites provided entertaining fodder for journalists and bloggers, in Lulu Enterprises, Inc. v. N-F Newsite, LLC, aka Hulu, LLC, et. al, the court focused its denial of Plaintiff Lulu's motion for preliminary injunction not on the rhyming nature of the domain names, but upon the Plaintiff's inability to prove imminent harm from the launch of Defendant's 'hulu.com' Web site. Rather than focusing on a likelihood of confusion analysis, the court's decision instead contains useful commentary on the effects of statements made in federal registration applications, and the likely expansion of the use of the mark, as they relate to the 'imminent harm' standard in trademark and unfair competition cases.

Patent drafters must often write a patent application based on minimal disclosure. Some practitioners take pride in their ability to do so. However, several recent landmark court cases have substantially increased the risk that a patent drafted in this manner will be unenforceable.

In another Ninth Circuit case involving Microsoft Corporation, a district court ruled last fall that a software company is entitled to recover statutory damages under both the Copyright and Lanham Acts against those who sell and distribute counterfeit software, where the software maker suffers distinct injuries to different interests as a result of the infringement. Microsoft v. Evans. This Eastern District of California decision reflects what may be a growing trend regarding the issue of awarding statutory damages under both copyright and trademark law for a single act that violates aspects of both statutes.

Alaska Supreme Court Enforces Pollution Exclusion

In a ruling that affects both insurance and reinsurance companies as well as policy-holders of insolvent insurers subject to the New Jersey's Insurer Liquidation Act, the New Jersey Supreme Court, in a 3-2 decision in a case of first impression, definitively excluded contingent claims that are 'incurred but not reported' from sharing in the distribution of assets of an insolvent insurer.

Policyholder counsel have heralded the recent New York Court of Appeals' decisions in Bi-Economy and Panasia as victories for insureds due to the court's recognition, in certain circumstances, of claims for consequential damages beyond the limits of an insurance policy. However, a close reading of the majority opinions in these cases demonstrates that the Court of Appeals has taken only a tentative step in the direction of allowing claims under New York law for damages beyond policy limits. Based on the analytical construct used by the court to address the policyholders' claims in these cases, insurers have several avenues to challenge the application of these holdings to future cases and may ultimately limit these decisions to the specific facts under which they were decided.