LJN Newsletters

In a decision that caught many employers by surprise, the U.S. Court of Appeals for the Fourth Circuit recently held in Taylor v. Progress Energy, Inc. that claims arising under the Family and Medical Leave Act(FMLA), including post-dispute claims, cannot be waived or settled via private agreement between an employee and employer. The only other Court of Appeals ever to consider this issue in the dozen years since the FMLA was enacted reached an opposite result. In light of Taylor, employers inside and outside of the Fourth Circuit must now review the language of their general release agreements and evaluate what, if any, changes are needed.

Whistleblower suits by in-house counsel not barred by privilegeThe Fifth Circuit has ruled that employers cannot claim attorney-client privilege to exclude…

With the expanded use of patents to protect business innovation, high-stakes patent litigation has become an unwelcome byproduct of business success. Increasingly, such litigation involves numerous patents on different technologies asserted by each side in several forums around the world. The resulting "mega-case" presents a strategic and logistical challenge that tests the skills of the best patent litigators. Unless those challenges are met efficiently, the costs of the mega-case can quickly spiral out of control.

The most important question in every patent case is "what do the claims mean?" The district court answers this question in its claim construction ruling. Presently, every aspect of a district court's claim construction is reviewed de novo by the United States Court of Appeals for the Federal Circuit.
The problem of de novo review is tied to the nature of patent claims themselves. Patent claims, the series of numbered paragraphs at the conclusion of the patent, define the scope of the patent owner's rights. Yet, because of the technical nature of inventions, the determination of the scope of rights is not easily made.

Law firm strategic and operational planners commonly use data from periodic law firm surveys to "benchmark" their own firms' performance. Many law firms now also employ business intelligence (BI) technology to extract more value from their internally collected financial data. Recently, interest has grown in a convergence of these two capabilities: using BI software to combine internal and external data streams, making benchmarking more standardized, sophisticated and reliable.

The U.S. Supreme Court recently issued an important decision concerning the Age Discrimination In Employment Act of 1967 (ADEA). In Smith v. Jackson, Miss., the Court held that employees aged 40 and over can assert claims for age discrimination under the ADEA based on the disparate impact of a facially neutral employment policy, even in the absence of discriminatory intent on the employers' part. In so doing, the Court reconciled a split in the federal circuit courts of appeal and aligned its view concerning the scope of the ADEA with its view of the scope of Title VII of the Civil Rights Act of 1964, which, according to prior Court decisions, permits employees to allege discrimination because of race, color, religion, sex and national origin based on the disparate impact of a facially neutral employment policy. An increase in the amount of litigation in respect to these types of claims under the ADEA will likely result from the Smith opinion.

Many of our specialist readers are so involved in financial intricacies that it may be difficult for them to answer questions on investment basics from non-initiates. Jim Berliner's clear explanations should be useful not only in advising professionals who earn a large fee but also for any firm member or client who is faced with a major investment decision.

Considering how much damage can result from something as innocuous as a faulty sprinkler system, it may be understandable that many law firm disaster planners previously gave their first attention to common threats, and then never got around to considering large-scale disasters.
Some firms were convinced as a result of 9/11 that such a patchwork of miscellaneous point solutions was inadequate. For other firms, Hurricane Katrina should drive that point home. While we can't expect disaster plans to protect our firms from all possible risks, we should expand our planning perspective to include more catastrophic scenarios.