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When individuals are not considered to be employees, employers are often insulated from various discrimination suits. While this is not the main reason an employer hires contingent workers, it can be an added benefit. However, just as it is important to classify individuals properly for benefit and tax purposes, law firms also need to classify individuals properly to ensure they understand the possible discrimination issues up front and will not be unwittingly blind-sided by someone whom they thought was a contingent worker, but who is subsequently determined to be an employee. The U.S. Court of Appeals for the Second Circuit held in Eisenberg v. Advance Relocation & Storage, Inc. that when determining whether a worker is an employee for Title VII purposes, the analysis needs to focus on the "extent to which the hiring party controls the manner and means by which the worker completes [his or] her assigned tasks, and not on how [he or] she is treated for tax purposes or whether [he or] she receives benefits." The factors used by the court were derived from the 13 factors set forth in the U.S. Supreme Court case, Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989). The court in Eisenberg focused on how the "anti-discrimination laws were not intended to be skirted by the terms of individual employment contracts."
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The early days of 2003 have brought a stark reminder to the leaders of law firms. While strong law firms have experienced an exceptional level of prosperity and growth in a consolidating market, continued expansion and ever increasing profitability are not the only potential destinies for law firms today. As the high profile closures of long established firms such as Brobeck; Peterson & Ross; Hill & Barlow and others demonstrate anew, firms can fail. And with failure come career interruption, client uncertainty and financial distress for many.
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How many times have you heard it? It's the little things that count. Trite as this axiom might sound, nowhere does it hold more truth and power than in the competitive world of business - where the little niceties and social amenities, these things I call the half-percents, can mean the difference between simply existing and gaining the edge so necessary for success in today's fiercely competitive business environment. Whether you are dressing down, communicating via voice-mail or e-mail, 21st Century business etiquette should be followed.
As law firms grow in size and complexity, they are increasingly realizing that professional development of their lawyers can no longer be left to the haphazard of on-the-job experience. Competing effectively today requires strategic thinking about cultivation of the law firm's primary business asset: its lawyers.
Features
The Supreme Court's recent Federal Trademark Dilution Act (FTDA) opinion, <i>Moseley et al. dba Victor's Little Secret v. V Secret Catalogue, Inc. et al.</i>, has a number of practical consequences. It settled an issue that had split the Circuits for years: whether actual dilution or a "likelihood of dilution" must be shown to establish an FTDA violation. Dilution law seeks to prevent the diminution or whittling away of a famous trademark's value through another's commercial use of the same or a similar mark. That somewhat abstract harm suggests the less concrete "likelihood of dilution" standard would more logically apply.
Can the victim of infringement of a creative work find relief under the trademark law, when relief under the copyright law may not be available, without the need to prove likely consumer confusion? With the Circuit courts split, the Supreme Court recently agreed to decide the issue in <i>Dastar Corp. v. Twentieth Century Fox Film Corp.,</i> U.S. NO. 02-428 (granting <i>cert.</i> on January 10, 2003)
Highlights of the latest intellectual property cases from around the country.
Features
As if the recent attacks on the tax-exempt status of Internet transactions were not enough for e-commerce vendors to worry about, a new problem has come to light for companies that sell goods or services via an Internet Web site. PanIP, LLC (PanIP), a company based in San Diego, has initiated lawsuits in the U.S. District Court for the Southern District of California against over 50 companies transacting business over their Internet Web sites, alleging that such activity constitutes infringement of two patents owned by PanIP.1 The patents asserted by PanIP are generally directed to "data processing systems designed to facilitate commercial, financial and educational transactions between multimedia terminals"2 and to "a system for filing applications with an institution from a plurality of remote sites, and for automatically processing said applications in response to each applicant's credit rating obtained from a credit reporting service."3
The FDA has just approved (April 24) the first drug eluting stent for angioplasty procedures to open clogged coronary arteries. In most cases, a stent is left permanently in the artery to keep the vessel open after angioplasty. The new stent slowly releases a drug, and has been shown in clinical studies to significantly reduce the rate of re-blockage that occurs with existing stents.
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Due to the rising cost of "defensive medicine," the U.S. House of Representatives recently passed legislation to limit or ban punitive damages in product liability lawsuits over injuries allegedly caused by FDA-approved products. 2003 H.R. 5. The HEALTH "Help Efficient, Accessible, Low-Cost Timely Healthcare" Act of 2003 was introduced in the House on February 5. This bill passed in the House on March 13 and is currently on the calendar of the Senate.