Battles between brand owners are frequently fought in the United States in two forums: the Trademark Trial and Appeal Board and federal district court. While the TTAB is limited to determining a party’s right to register its trademark, district courts may adjudicate rights to registration and use of a mark. When prosecuting or defending an inter partes challenge to registration before the TTAB, brand owners are wise to consider the possible preclusive impact of the TTAB’s decision in a later-filed or concurrently pending district court action. In its recent petition for a writ of certiorari, B&B Hardware, Inc. argues that Circuit Courts of Appeal are incurably split as to whether district courts are collaterally estopped from relitigating issues decided by the TTAB. In its opposition, respondent Hargis Industries, Inc. argues that any alleged Circuit split is illusory. B&B’s petition is still pending, and … [Read more...] about Are Circuit Courts of Appeal Split as to the Preclusive Impact Accorded to Prior Trademark Trial and Appeal Board Decisions?
7th circuit court of appeals
On May 4, 2017, the U.S. Court of Appeals for the Seventh Circuit in Brown v. Milwaukee Board of School Directors affirmed the summary judgment dismissal of a former employee’s disability discrimination claim under the ADA. While the employer consistently sought to find reasonable accommodations, plaintiff failed to engage in the interactive process because neither she nor her doctor clarified the extent of her restrictions despite the board’s multiple written requests. Employers who engage in the interactive process in good faith, and document their efforts are much better positioned to prevail in failure to accommodate claims. … [Read more...] about Recent 7th Circuit Court of Appeals Case Demonstrates Importance of Documentation of the Interactive Process
In a big win for the tech industry and app developers, and for other companies seeking to enforce arbitration agreements through web-based interactions, last week the Second Circuit Court of Appeals held that the plaintiff in a putative class action entered into an enforceable arbitration agreement when he registered for Uber Technology, Inc.’s (Uber) app. See Meyer v. Uber Technologies, Inc., et al., Nos. 16-2750-cv, 16-2752-cv (2d Cir. Aug. 17, 2017). The Uber app publishes Uber’s terms and conditions, which contain a mandatory arbitration clause, via hyperlink on the app’s registration screen. The lower court had concluded that Uber’s notice of its terms of service was not reasonably conspicuous to users, and thus, users did not unambiguously assent to a mandatory arbitration provision contained in those terms. Id. The Second Circuit disagreed. It held that Uber’s publication of its terms and conditions via a conspicuous … [Read more...] about Second Circuit Court of Appeals Reaffirms Strong Federal Preference for Enforcing Arbitration Agreements in the Evolving Era of Web-based Contracting
On February 10, 2015, in United States v. Patel (Case No. 14-2607), the Seventh Circuit Court of Appeals ruled that a physician makes a “ referral ” within the meaning of the federal health care programs Anti-Kickback Statute (AKS) when the physician makes a certification and recertification for Medicare -reimbursed home health services even without playing any role in the patient’s selection of the provider. This expansive definition could give broad leeway to prosecutors and will make it more difficult for counsel to advise clients on the scope of the AKS.Patel was convicted in February 2014 by the Northern District Court of Illinois (J. Dow) for receiving kickbacks from Grand Home Health Care (Grand) in the form of $400 cash for each original home health care certification (CMS Form 485) and $300 for each recertification. It was undisputed in the case that all of the patients needed home health services. … [Read more...] about 7th Circuit Court of Appeals Creates Expansive Definition of “Referral” Under the Anti-Kickback Statute
The Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”), prohibits “robo-calls” to cell phones, text messages and “junk” faxes without prior consent. It imposes statutory penalties from $500 to $1,500 per violation, regardless of any actual damage, and is thus increasingly popular with the plaintiffs’ class action bar. Though passed in 1991, there are relatively few Circuit Court of Appeals decisions regarding the TCPA. In August of 2013, however, both the Third and Seventh Circuits issued TCPA decisions—one involving the revocation of prior express consent and the other involving cy pres awards in TCPA class actions. In Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (3d Cir. Aug. 22, 2013), the plaintiff, in the course of obtaining financing from Dell to purchase a computer, provided her cell phone number on her application. (Though courts have split on the issue, the plaintiff in this case … [Read more...] about Third and Seventh Circuit Courts of Appeals Issue TCPA Decisions