The Quest for Class Certification
October 01, 2003
Last month, we introduced our primer on the "leniency" standard for FLSA actions, and its interplay with Rule 23 guidelines. We called the quest for class certification "the most feared battle waged in litigation," and went on to explain that if well-regarded class action practitioners were surveyed, there would almost assuredly be a consensus that the quest for class certification is exactly that to a targeted defendant.We discussed the FLSA's opt-in burden, and the liberal standard in our previous article. This month, we address the seemingly irreconcilable approaches taken by some courts.
Plaintiffs' Employment Lawyers Are No Longer Secure
October 01, 2003
Plaintiffs' employment lawyers contemplating bringing Title VII or other discrimination suits have long felt secure in the knowledge that, even if they lose at trial or at the summary judgment stage, their client will not be assessed attorney's fees. Any ambiguity regarding the meaning of a "prevailing party" entitled to fees under the Federal Rules was resolved by the Supreme Court's decision in <i>Christiansburg Garment Co. v. EEOC</i>, 434 U.S. 412 (1977). The Supreme Court denied fees to the prevailing defendant employer in that Title VII case, pointing out that the EEOC's actions in bringing the case could not be characterized as without merit or unreasonable. Is that still the case?
Understanding Equitable Distribution
October 01, 2003
As the definition of marital property continues to expand and embrace more and more esoteric forms of property, equitable distribution cases become increasingly…
Recent Decisions Every New York Family Law Practitioner Should Know
October 01, 2003
The Court of Appeals decided a number of important family law cases over the past year, addressing an array of issues ranging from technical questions of the interface between the Employee Retirement Income Security Act of 1974 (ERISA) and common law waiver to fundamental issues of protecting children from severe abuse and ensuring their support rights under the Child Support Standards Act. Following is a review of those cases.
Did You Expect to Be Paid Too?
October 01, 2003
The option of seeking redress by asking the court to compel the client's spouse to pay is foreclosed, according to a recent decision by the Appellate Division, Second Department, in the case of <i>Frankel v. Frankel</i>, 2003 N.Y. App. Div. LEXIS 9279 (App. Div., 2d Dept. 9/8/03).
A Look Back at <i>New Kids on the Block</i> : Ninth Circuit Expands the Nominative Fair Use Doctrine
October 01, 2003
Trademark fair use under the common law and '33(b)(4) of the Lanham Act has long permitted a defendant to use terms descriptively to refer to the defendant's own product or service; in contrast, the doctrine of nominative fair use permits a defendant to use a plaintiff's mark to describe the plaintiff's product or service. Unlike the common law and statutory fair use defense, the nominative fair use doctrine is a judicially created defense of relatively recent vintage. Prior to the development of the nominative fair use defense, courts occasionally declined to enjoin the copying of nondescriptive marks used to refer to the plaintiff's products or services, however, a true doctrinal basis for that result was not expressly articulated until New Kids on the <i>Block v. News America Publishing, Inc.</i>, 971 F.2d 302 (9th Cir. 1992).
Tiger Woods' IP Claims Stuck in the Sand Trap
October 01, 2003
First Amendment theory triumphed over celebrity right of publicity and trademark rights this past summer. The Sixth Circuit Court of Appeals upheld a dismissal of Tiger Woods' damages claims for use of his likeness in limited edition prints of a painting titled "The Masters of Augusta." <i>ETW Corporation v. Jireh Publishing, Inc.,</i> 332 F.3d 915 (6th Cir. 2003).
