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The Second Circuit has held that denying insurance coverage for infertility treatments that can only be performed on women does not violate the Pregnancy Discrimination Act (PDA). Saks v. Franklin Covey Co., 00-9598 (Jan. 15, 2003).

This is part two of a three part series on electronic issues related to litigation. Just as general counsel and their outside litigation attorneys are getting familiar with the challenges of electronic discovery, the definition of what is discoverable has begun to broaden. In most of the literature on electronic discovery, the list of places where discoverable information resides is fairly standard and includes computer hard drives, servers, CD-ROMs, floppy disks, zip disks, backup media, e-mail servers, laptops, home computers, and hand-held devices.

This is part two of a two part article. Clients subpoenaed by the government or private litigants rarely want to disclose their documents. They reflexively assert that it is all personal, confidential or proprietary. However, they are often surprised to learn that most documents are not protected from disclosure by the Fifth Amendment privilege. There is an entire body of case law that narrowly restricts the protection of the Fifth Amendment privilege in document production, which can be a trap for the unwary.

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As it stands now, if your company brings a trademark dilution claim in federal court, you are risking a ruling that your company's brand is not diluted or, even worse, 'not famous.' There is currently a great deal of confusion among the courts over the concept of trademark dilution, and none of the recent decisions are helping to clear the air. Courts across the country continue to struggle with the very concept of trademark dilution and its application. Issues the courts are struggling with include: How much fame is required for a mark to be 'famous' under the statute? What marks deserve protection under the Federal Trademark Dilution Act (FTDA)? What factors should a court consider when evaluating a dilution claim? Is proof of actual harm or injury required in order to prevail on a dilution claim? These issues are not easily resolved, and it is only the issue of proof of actual harm or injury on which the Supreme Court will provide guidance this spring. In light of these other continued uncertainties, companies should carefully analyze their case before putting their most prized brands at risk.

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Highlights of the latest commercial leasing cases from around the country.

When a taxpayer commences a real property tax review proceeding, his/her focus is on the bottom line — the amount of the real estate taxes paid on that property and getting them reduced. These bottom-line taxes are, however, the end product of a multistep process that ultimately results in the tax bill issued for that property.

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Office leases typically provide that the landlord will furnish services without additional charge, including heat, ventilating, and air conditioning (HVAC) during 'normal business hours.' Many leases specifically denote such hours, sometimes including up to 6:00 p.m. on weekdays, and also Saturday mornings. These hours are usually not controversial, but certain tenants sometimes negotiate the specific hours. The potential problem for tenants is that many leases state that a tenant will be billed for overtime HVAC (or other services) without specifying a rate for such services.

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The ensuing softening of the commercial real estate market fueled by massive corporate restructuring, downsizing and changes in geographic locations has led to a flood of sublease space being placed on the market. As recently reported in the National Real Estate Investor, there are 124 million square feet of office space being offered for sublet today, which equates to approximately 25% of total available office space nationwide. <i>See</i> Parke Chapman and Matt Valley, 'The Sublease Overhang: A 124 Million Square Foot Headache', National Real Estate Investor (February, 2003). In order to mitigate the cost of leasing unused space, companies are subletting, or similarly, positioning their excess space so that a favorable lease termination fee or a lease buy out can be negotiated with the existing landlord. As tenant representatives, we are often retained by companies to assist with their disposition efforts. We recommend that the following subleasing strategies be considered for mitigating a company's remaining leasehold obligation effectively.