The Role of Motive in Franchise Termination Cases
October 01, 2003
Should the franchisor's motive in a franchise termination case ever become the central issue? Some courts answer that seeking the true reason for termination is the target inquiry, as if a franchisor could not have a mixed motive for termination. The question turns the trial into a search as to whether the franchisor has breached an implied covenant of good faith and fair dealing which augments the terms of a written franchise agreement. Often the outcome depends on where in the life of the franchise relationship the dispute arises. At the end of the relationship, courts considering the propriety of termination and nonrenewal often treat the role of good faith and fair dealing differently than when, for example, reviewing whether the franchisor imposed unreasonable standards of performance.
News Briefs
October 01, 2003
Highlights of the latest franchising news from around the country.
Court Watch
October 01, 2003
Highlights of the latest franchising cases from around the country.
Book Review: Noteworthy 'Intangibles' and the Obviousness of 'Unseen Wealth'
October 01, 2003
The book "Intangibles" is largely one of policy, but is not without its practical lessons. Baruch Lev's book is a worthwhile read for anyone interested in the management of intangible assets ("intangibles"), such as patents, know-how, and relationships. The book addresses the full scope of intangibles and may be too broad to be of interest to some patent practitioners. However, the book includes interesting observations and supporting data that will reward the practitioner willing to take a broad view of patents and their place in the business world.
Participation in Standard-Setting Organizations
October 01, 2003
Some patent-owning companies choose to participate in standard-setting organizations (SSOs), such as the IEEE, IETF and ANSI. They do so for a variety of business reasons, including the opportunity to monitor industry trends and to influence technological advancement. However, the business advantages of participation must be balanced against its potential legal consequences to the company's IP rights. Accidental or premature disclosure, failure to disclose, and licensing and enforcement practices can lead to loss of patent and trade secret rights, equitable defenses for infringers, and antitrust concerns. The current litigation between Rambus and Infineon provides a cautionary tale for both SSOs and member companies of what can happen if a company participates in an SSO whose IP patent policy is not clearly defined. <i>See, e.g., Rambus, Inc. v. Infineon Technologies AG,</i> 164 F. Supp. 2d 743 (E.D. Va. 2001), <i>aff'd in part, rev'd in part, and vacated in part,</i> 318 Fed. 3d 1081 (Federal Circuit 2003). In order to avoid such losses, companies need to investigate the IP policies of the SSOs to which they belong and carefully assess and monitor their compliance with those policies.
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?
