Originally published by John G. Browning.
Friends of mine have been urging me to binge watch the hugely popular Netflix science fiction drama “Stranger Things, assuming that the show’s
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Originally published by Carrie Hoffman.
Texas employers should beware. If they haven’t been subject to a Department of Labor audit and/or a lawsuit alleging that employees were denied or
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Originally published by Austin TX Business Law Blog.
The look and feel of your retail location are likely a driving factor behind your success. Customers often come to a certain store, over competing options, because they know and appreciate the overall style of the store. Your “look” might include your arrangement of items for sale or services, a unique display, a signature floor design, and much more. Retailers often miss out on protecting the design of their store because they are unaware intellectual property law could give them much needed legal protection. A design patent can be the ideal tool for some retail owners to guard their unique design and prevent copycats.
When most of us think of patents, we conjure an image of the traditional utility patent. Utility patents are the most common form of patents and they protect the way something works. These patents are often issued for novel new inventions, software creations, and the like. However, utility patents are not the sole type of patent. Design patents are less known, but offer critical protection for the way something looks, as opposed to how it works. To achieve protection, the design must simply be new in appearance.
Design patents are easier to apply for, cheaper, and faster. If you are granted a design patent, it will allow you to stop others from using a design protected per the patent. Your design patent application will need images of the design along with descriptors, but it is far less tedious than a utility patent. It is considered important to file for one as soon as possible before the design has been disclosed to the public.
Design patents can cover a broad array of designs that may be included in a retail store. Design patents could, for instance, cover the building itself, items from the interior of the store, fixtures within the store, and other like portions of the store. The only limitation is that you must be able to depict the design clearly within the application. To fully protect the look of your store, you may in fact need to file a few design patents. By protecting the aspects of your store that most contribute to its look and feel, you can best guard your store against competitors who may attempt to copy your unique look.
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Originally published by Douglas A. Darch and Emily Harbison.
Government contractors are familiar with the obligation to retain minority or women-owned businesses as subcontractors to obtain government work. Increasingly, apex private sector businesses require participation by minority or women-owned businesses as a condition of obtaining work, as well.
A recent decision by the federal court for the Southern District of New York is a cautionary tale, and highlights the care required when terminating a minority business enterprise (MBE) sub-contractor. Annuity Funds Operating Engineers Local 15 v. Tightseal, No. 17-CV-3670 (S.D.N.Y. August 14, 2018).
The case arose after Jadlau, the general contractor on the Queens Midtown Tunnel Rehabilitation Project, terminated one of its MBE subcontractors, Tightseal Construction. The subcontract between Jadlau and Tightseal provided that Jadlau would withhold contributions due to various union sponsored fringe benefit funds and pay them. Allegedly, at some point, Jadlau ceased payments to these funds. After Jadlau terminated Tightseal, the union funds sued Tightseal to collect the delinquent contributions. Tightseal and its CEO then sued Jadlau under 42 U.S.C. Section 1981 (part of the Civil Rights Act of 1866) claiming Jadlau had terminated the subcontract in “bad faith.” Specifically, Tightseal and its CEO claimed that Jadlau’s termination of the subcontract was due to racial animus. It should be noted that the punitive damages which can be awarded under Section 1981 are uncapped, making claims under this statue more potent than Title VII claims.
Jadlau moved to dismiss the (third-party) complaint filed by Tightseal and its CEO. The court granted Jadlau’s motion as to Tightseal’s CEO but denied motion as to Tightseal. The district court found Tightseal’s CEO’s section 1981 claim failed because he was not a party to the subcontract between Tightseal and Jadlau. As the court explained, the Supreme Court had already concluded a “shareholder and contracting officer of a corporation has no rights and is exposed to no liability under the corporation’s contracts,” quoting Domino’s Pizza v. McDonald, 546, U.S. 470, 477 (2006). The district court noted that the CEO had not alleged he was the third-party beneficiary of the subcontract, or that Jadlau had the actual ability to interfere with the formation of any contracts between the CEO and any other party, both of which are alternative theories of liability under Section 1981. Accordingly, the court dismissed his claim.
The district court, however, determined Tightseal could bring a claim under Section 1981 because it was a party to the subcontract with Jadlau. Tightseal alleged it was a “disadvantaged African-American Company” and that Jadlau had “subjected it to race discrimination.” The court found this allegation was sufficient to state a claim under Section 1981 because Tightseal alleged that Jadlau’s superintendents had subjected its CEO to racial harassment by calling him racist names and using racial slurs when addressing him. The case will now proceed to discovery and a likely trial absent a settlement.
For more, please reach out to your Baker McKenzie lawyer.
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Originally published by David Coale.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
Originally published by Beth Graham.
The Northern District of Texas has dismissed a worker’s Fair Labor Standards Act (“FLSA”) claim because it should have been submitted to arbitration. In Gay v. Manchester Mgmt., LLC, No. 3:18-CV-1378-D., (ND Texas, October 22, 2018), a woman, Gay, signed an agreement to arbitrate all future claims against her employer, Manchester, when she began working for the company. The binding arbitration agreement specifically included FLSA wage and hour claims. In addition, the agreement stated any questions regarding its validity, enforceability, or scope must be resolved by an arbitrator.
Later, Gay filed a complaint against Manchester seeking compensation for her unpaid overtime hours with the Northern District of Texas in Dallas. In response, the woman’s employer sought to dismiss the case based on the agreement Gay signed at the commencement of her employment with the company. Gay opposed Manchester’s motion to dismiss by arguing the arbitral agreement was unconscionable and illusory. In addition, the worker asserted her court case should be stayed in lieu of dismissal.
In a memorandum opinion, the federal court first stated it was required to engage in a two-step process when “considering a motion to dismiss claims because they are allegedly subject to binding arbitration.” Such a determination requires a court to consider: “(1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement.” Where an arbitration agreement contains a delegation clause that transfers “the court’s power to decide arbitrability questions to the arbitrator,” however, the court stated it was obligated to “refer a claim to arbitration to allow the arbitrator to decide gateway arbitrability issues.”
Next, the Northern District of Texas stated the question of whether a valid arbitration agreement existed between Gay and Manchester was one for the court to decide. The Dallas court then held Manchester successfully established there was a valid agreement to arbitrate between the two parties under Texas contract law.
After that, the court addressed “whether the dispute in question falls within the scope of the arbitration agreement.” The Northern District of Texas found that Manchester “clearly and unmistakably” demonstrated “the parties agreed to delegate ‘gateway’ issues of arbitrability to the arbitrator.” In addition, the court said:
Because the Agreement contains a valid delegation clause, the court must refer to the arbitrator for binding arbitration the remaining unconscionability issues that Gay raises. The court must also refer the underlying FLSA complaint to the arbitrator because it falls within the explicit scope of the Agreement. See D. Mot. Ex. A at 1 (providing that “claims and/or violations under the . . . Fair Labor Standards Act (“FLSA”) (wage and hour)” are subject to mandatory, binding arbitration). All of these issues are “plainly the right and the responsibility only of the arbitrator” to resolve. Kubala, 830 F.3d 204.
The federal district court next examined whether Gay’s case “should be dismissed with prejudice.” According to the court:
If the court determines that all claims in a lawsuit are arbitrable, it cannot allow the suit to proceed. Heritage Capital Corp. v. Christie’s, Inc., 2017 WL 1550514, at *6 (N.D. Tex. May 1, 2017) (Fitzwater, J.). Although the FAA provides that the court should normally stay the action, the Fifth Circuit has held that dismissal with prejudice is appropriate “in the proper circumstances.” Dean Witter Reynolds, 975 F.2d at 1164. “The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration.” Id.(emphasis in original). “When, as here, `[t]he only possible role the Court could have would be to review the arbitration award once the proceedings are concluded[,]’ the court should dismiss rather than stay [the underlying complaint].” Heritage Capital Corp., 2017 WL 1550514, at *6 (quoting SGC Health Grp., Inc. v. eClinicalWorks, LLC, 2016 WL 2595109, at *2 (N.D. Tex. May 4, 2016) (Lynn, C.J.)). “The reason for dismissal with prejudice is that retaining jurisdiction of the action by the district court serves no purpose because any remedies after arbitration are limited to judicial review based on the grounds set forth in the FAA.” Atlas Health, LLC v. Geoffrey, 2018 WL 1026271, at *4 (N.D. Tex. Feb. 23, 2018) (Lindsay, J.). Because the court has concluded that all of the issues raised by Gay are arbitrable, the court grants the motion to dismiss with prejudice.
Finally, the Northern District of Texas issued an order dismissing Gay’s FLSA case with prejudice.
Photo by: Jon Tyson on Unsplash
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Originally published by Academic Support.
The leaves are changing and falling. For some, the weather is beautiful. The crisp air makes many want to cuddle up by the fire with hot chocolate and read a fully completed Con Law outline. Well, maybe not the outline…
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