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When there are no allegations that the claimant suffered damages as a result of advertising, there will be no advertising injury claim.
Three Step Analysis to Determine Coverage. . . . [which include] (1) is there “advertising injury” offenses defined by the policy?; (2) was the offense committed in the course of advertising your goods, products or services?; and (3) is there causal connection between the advertising and the injury?
The proposition that the “claimant suffered damages as a result of advertising” glosses over a significant distinction in element three. The authority for this “damages” nexus is a citation to Simply Fresh Fruit, Inc. v. Continental Ins. Co., 94 F.3d 1219, 1222 (9th Cir. 1996). There, no advertising was alleged that created liability for the offense at issue — “misappropriation of advertising ideas” in a patent infringement lawsuit.
The court’s gratuitous reference to “damages as a result of advertising” did not track the policy language in Simply Fresh Fruit, nor in Blackstone. Citing Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 16-17, 852 A.2d 98, 107 (2004), the majority presumed that under the predecessor policy language, a third element requiring a causal relationship between the “advertising” and “injury,” but its citation to Walk does not explain how either element relates to proof of damages.
The “use” itself need not be wrongful so long as injury arises out of that “use.” “[T]here is nothing limiting ‘use of an advertising idea’ to a laundry list of theories or causes of action.” (Ohio Cas. Ins. Co. v. Albers Medical, Inc., No. 03-1037-CV-W-ODS, 2005 U.S. Dist. LEXIS 45675 at *4 n.5 (W.D. Mo. Sept. 22, 2005) The policy language only calls for an indirect causal connection between the advertising and the injury, as injury need only “arise out of” the pertinent offense.
Maryland’s policy only requires that the suit seeks damages where injury “arises out of” Offense (f) with damages available as a remedy for that injury. The policy phrase “damages because of ‘personal and advertising injury’” only requires that “damages” (as opposed to injunctive relief alone) be available under a “personal and advertising injury” offense. Norfolk & Dedham Mut. Fire Ins. Co. v. Cleary Consultants, Inc., 81 Mass. App. Ct. 40, 48 (2011) review denied, 461 Mass. 1108, 961 N.E.2d 591 (2012) (“What matters is whether the allegations … are reasonably susceptible of the interpretation that they state or roughly sketch a claim for damages because of injury arising out of one or more of the offenses specified as within the personal and advertising injury coverage …. It is of no significance that other factors may have contributed to those damages apart from conduct covered by the policy.”).
Such an approach also substitutes a focus on injury and damages, which is inappropriate in analyzing offense-based policies. Rather, the question is “whether that conduct as alleged in the complaint is at least arguably within one or more of the categories of wrongdoing that the policy covers.” Curtis-Universal, Inc. v. Sheboygan Emerg. Med. Servs., Inc., 43 F.3d 1119, 1122 (7th Cir. (Wis.) 1994). As Judge Croskey, a noted insurance coverage scholar and legal writer as well as jurist, noted: “Coverage for personal injury is not determined by the nature of the damages sought in the action against the insured, but by the nature of the claims made against the insured in that action. . . . ‘[C]overage … is triggered by the offense, not the injury or damage which a plaintiff suffers.’ ” Atlantic Mut. Ins. Co. v. J. Lamb, Inc., 100 Cal. App. 4th 1017, 1032 (2002) (emphasis added).
While damages may result from advertising in many fact scenarios, to require the complaint to speak in the words of the policy imports a policy limitation under the guise of interpretation. “[T]he duty to defend does not require that the complaint allege or use language affirmatively bringing the claims within the scope of the policy.” Axiom Ins. Managers, LLC v. Capitol Specialty Ins. Corp., 876 F. Supp. 2d 1005, 1013 (N.D. Ill. 2012). See “Can A Product Be An ‘Advertisement’ For Itself – The Debate Continues”, Licensing Journal, Vol. 30, No. 1 (January 2010).
First, the duty to defend turns on the “grounds for liability” expressed by “allegations of fact” in the underlying complaints. . . . This is not a case where there is only a single cause of action based wholly on acts expressly excluded by the policy. . . . Second, the factual allegations triggered the duty regardless of the label [the insurer] would like to attach to the cause of action. . . . The court cannot speculate as to the nature or merit of the claims; . . . If the facts alleged show any basis for imposing liability upon the insured that falls within policy coverage, the insurer has a duty to defend.
There is nothing about the terms “misappropriation of an advertising idea” or “misappropriation of a style of doing business,” neither of which constitutes a recognized tort, which compels us to conclude one way or the other as to just how broadly or narrowly they should be read. Nor is there anything about the statutory offense of trademark infringement which necessarily precludes its inclusion as a part of either.
Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group, 50 Cal. App. 4th 548, 565 (Cal. Ct. App. 1996).
The “specified perils” approach also ignores that “Those draftsmen had it within their power to make clear the full scope of the coverage offered as well as any limitations they wished to place thereon.” (Id. at 566, n.13) So understood, the majority’s opinion is out of step with the better reasoned coverage case law analyzing offense-based coverage, as the dissent affirming the intermediate court of appeals’ reasoning concluded.


Summary: The U.S. District Court, Northern District of California ruled that a school district’s proposal to reevaluate a student after the student’s parents requested an independent educational evaluation (“IEE”) could constitute illegal retaliation, and allowed the case to continue. M.M. v. Lafayette School District, 115 LRP 54386 (Nov. 18, 2015).
Facts: Student was in third grade receiving special education services from the Lafayette School District when Student’s Parents requested an independent educational evaluation (“IEE”). In response, the District proposed that the District reevaluate Student instead. Parents filed a due process complaint alleging various violations of the Individuals with Disabilities Education Act (“IDEA”) and Section 504 of the Rehabilitation Act, including retaliation.
Issue: Can a local educational agency’s (“LEA”) suggestion that the LEA reevaluate a student in response to parents’ request for an independent educational evaluation (“IEE”) be considered retaliation under the IDEA and Section 504?
Holding: Yes, an LEA’s suggestion that it reevaluate a student instead of conducting an IEE could qualify as retaliation under the IDEA and Section 504. The burden is still on the student and parents to ultimately prove their allegations of retaliation, but a court will not dismiss the retaliation claim outright.
Discussion: Under Section 504, retaliation occurs when a plaintiff (1) engaged in a protected activity, (2) defendant knew the plaintiff was involved in the activity, (3) defendant took an adverse action against plaintiff, and (4) defendant would not have taken the adverse action “but-for” the plaintiff engaging in the protected activity. Alex G. ex rel. Dr. Steven G. v. Bd. of Trustees of David Joint Unified Sch. Dist., 387 F.Supp.2d 1119, 1128 (E.D. Cal. 2005).
In this case, Parents alleged that (1) their request for an IEE was a “protected activity” under Section 504, (2) District knew the Parents made the request for an IEE, (3) District suggested that it reevaluate Student instead of engaging in an IEE and this was an “adverse action”, and (4) District would not have made its suggestion if Parents had not requested an IEE.
District argued that, even if Parents’ factual allegations were true, Parents could not prove retaliation because requesting an IEE was not a “protected activity” and a suggestion that the District reevaluate Student instead could not constitute an “adverse action” in the eyes of the law.
The Court disagreed with the District. First, requesting an IEE is a “protected activity” under the IDEA because it is a right specifically granted to parents. Therefore an “adverse action” taken because of a request for an IEE could constitute retaliation. Second, the District’s response to the IEE request could possibly be an “adverse action” that would not have occurred “but-for” the IEE request. When Parents requested an IEE, the District only had two options under the IDEA: (1) provide the requested IEE or (2) file a due process complaint. 34 Code of Fed. Regs. § 300.502(b)(2); Cal. Educ. Code § 56329(c). The District had to do at least one of these things “without unnecessary delay.” 34 CFR § 300.502(b)(2). Instead, the District offered a third option to Parents which caused delay. The Court was skeptical that Parents could ultimately prove that the District retaliated against them, but the Court could not conclude as a matter of law that the action Parents complained of could never constitute retaliation.
Take Away: M.M. v. Lafayette School District is a reminder that LEAs stray from the letter of the law at their own peril, but also presents a good example of why most cases settle. (See this recent Legal Alert on OAH filing statistics.) Litigation can be very time consuming and, therefore, very costly.
When contemplating the alternative of litigation to compromise and settlement, a party has to consider both the strength of its case and how efficiently it can prove its case. There are procedural mechanisms to try and speed up the judicial process and resolve issues quickly without the usual array of hearings, discovery, or trial, but such procedural short-cuts set a very high bar for success to protect parties who have not had a full opportunity to develop and argue their cases. For example, juries usually resolve factual disputes while judges resolve disputes over the law. You have an opportunity to get a case dismissed if you can convince a judge that no legal violation occurred even if the other party’s version of the facts is true. However, this is difficult to do and a judge will normally allow a case to proceed to trial when there is disagreement over key facts. This invariably leads to delay and more expense.
The M.M. v. Lafayette School District proceedings have continued for over six years. After a full OAH hearing, the District sought to get Parents’ due process complaint dismissed years ago and succeed in the U.S. District Court only to see the Parents get a partially favorable ruling from the Circuit Court of Appeals. The matter was returned to the U.S. District Court to reconsider certain issues like the retaliation claim. The District tried again to get the retaliation claim dismissed. The Court was skeptical of Parents ability to prove the truth of their version of the facts, but nonetheless the case could proceed. All the while the parties continue to incur legal expenses and Student’s placement is subject to a stay-put order.
Summary: On August 14, 2015, the California Office of Administrative Hearings, Special Education Division, released its fourth quarterly report detailing special education filing activity for 2014-2015. This report is useful to help school administrators and parents understand special education litigation’s complex nature.
Based on the above statistics a vast majority of Due Process filings are settled before reaching a hearing decision. Indeed, only 2% of all due process filings are fully adjudicated with 98% resolved before reaching a hearing. Most filings are initiated by the student. Although the student only prevailed in 9 of the 83 cases heard, the administrative law judge split the decision 32 times. Also of note is that only 11 of the 83 cases decided, or 13% were appealed.
As with most types of litigation, special education due process filings are frequently resolved before a hearing. In all litigation, the parties are essentially forfeiting their ability to craft their own settlement and are requesting that a third party decide the outcome for them. This data indicates that parties are very effective when settling cases. It also indicates that both the districts and students find controlling settlement terms is preferable to submission to a third party. As with any litigation, each party must carefully consider the relative costs and benefits before filing for a due process hearing.
Have you ever received emails from a parent questioning the adequacy of their child’s education? Or perhaps calling a teacher “incompetent”? Or perhaps threatening to file a due process or a civil rights complaint? If so, how has your school responded to such emails?
One school district was found by the Office for Civil Rights (“OCR”) to have engaged in unlawful retaliation under Section 504 where it informed the parent that it would no longer respond to emails due to his “mischaracterizations, threatening tones, and unsubstantiated allegations.” Granville County (NC) Schs., 111 LRP 59348 (OCR 2011). The school district asserted that the parent’s behavior amounted to cyberbullying, in part, because he threatened legal action. OCR explained that the district had inappropriately responded to the parent’s protected activity in that the purpose of the parent’s emails were to address concerns related to the student; specifically, the student’s safety and receipt of special education services.
In another case, OCR found that there were sufficient facts to support a school district’s, legitimate, non-retaliatory restriction of a parent’s communication with staff as part of a policy to minimize disruption to the school environment. Tucson (AZ) Unified Sch. Dist., 114 LRP 45095 (OCR 05/07/14).
The complainant engaged in a protected activity.
The complainant suffered an adverse action around the same time (or within a reasonable amount of time after the protected activity).
The LEA was aware of the complainant’s protected activity.
There is evidence of a causal connection between the protected activity and the adverse action.
Once the complainant meets the burden of proof for a retaliation claim, OCR then considers whether the LEA has identified a legitimate, non-discriminatory reason for taking the adverse action.
Practice Pointer: A local educational agency may not take adverse action against a parent simply because he or she pursues legal action, or threatens do so. Such conduct is protected activity, and any adverse action that can be linked to it is likely to be deemed retaliatory. Hearing officers and judges often recognize that the relationship between a school and parents can be complicated by a parent’s confrontational style and inflammatory correspondence. However, they often sympathize with the parent as a zealous advocate for their child and believe efforts should be made on both sides to reduce tensions and attempt to achieve a more collaborative approach that focuses on the student’s interests and educational programming rather than on adult personalities.
LEAs can help protect themselves against potential Section 504 retaliation claims by parents of students with disabilities by training staff members about the elements of a retaliation claim, documenting the criteria for decisions that could be construed as adverse actions, developing policies regarding public behavior on school grounds, and developing communication protocol.


text: 1. Трудовое право, право социального обеспечения Annual leave and payment procedure Korshunova Tatyana Yu. PROBLEMS OF LEGAL NORM STRUCTURE REGULATINGTHE MATERIAL OBLIGATION OF THE EMPLOYER FOR ILLEGAL DEPRIVATION OF AN EMPLOEE TO WORK Savin Viktor Tikhonovich TO THE QUESTION OF THE LAWFUL REGULATION OF LABOR HOURS: WHETHER TO INPUT A FOUR-DAY WORKING WEEK Chanyshev Alexander S. Legal sources of incentive payments Naboysenko Dmitry Vladimirovich 2. ТЕОРИЯ И ИСТОРИЯ ПРАВА И ГОСУДАРСТВА, ИСТОРИЯ УЧЕНИЙ О ПРАВЕ И ГОСУДАРСТВЕ QUESTIONS OF FORMATION OF POLICE RANKS IN THE SECOND HALF OF THE ΧІΧTH CENTURY Mukhortov Anatoly Aleksandrovich 3. Гражданское право, жилищное право, семейное право, международное частное право On the distinction between civil law and labour relations: practical aspect Shelepina Elena Alexandrovna 4. Уголовное право и криминология; уголовно-исполнительное право On improving the criminal law protection of journalists' professional activities Borovikova Viktoria V. Terminologyofsystemofcriminalpenalty: shortreview Zvonov Andrei V. Social conditionality criminal liability Gamidov Rinat T. 5. КОНСТИТУЦИОННОЕ ПРАВО, КОНСТИТУЦИОННЫЙ СУДЕБНЫЙ ПРОЦЕСС, МУНИЦИПАЛЬНОЕ ПРАВО LEGAL INSTITUTIONALIZATION OF PARTIES AND THE CONCEPTIONS OF THE PARTY LAW Kurochkin Anatoly Vasilyevich THE STATUS OF THE OMBUDSMAN FOR CHILDREN OF THE RUSSIAN FEDERATION CONSTITUENT TERRITORY IN THE SYSTEM OF STATE AUTHORITIES Likhter Pavel L. 6. Правовое обеспечение предпринимательской деятельности Factors of business activities development under custodial circumstances Gryaznov Sergey A. Provision of discharge of the principal obligation in form of guaranteed transfer of ownership in the lease agreement and in the repurchase agreement Ivashkin Andrey N. Category «term» in the legislation about the supply on the market of thermal energy Yarkovaya Olesya Nikolaevna SYSTEM OF THE CIVIL CONTRACTS PROVIDING CREATION, MANAGEMENT AND THE TERMINATION OF LEGAL ENTITIES: CONCEPT AND VALUE Semivelichenko Eugene Aleksandrovich 7. ПРОБЕЛЫ В ПРАВЕ;МЕЖДУНАРОДНОЕ ПУБЛИЧНОЕ ПРАВО Criminal liability for legalization (laundering) of money and other property according to the articles 324 (1-6) of Criminal code of France Rastoropov Sergey Vladimirovich Individual issues of social protection of persons holding public positions in the EEU countries Medvedev Andrey V. Private law: the principle of reciprocity as the basis for the recognition and enforcement of foreign judgments Gintov Denis V. Classification of methods of self-help of civil rights in the United States contract law Artemov Ivan I. Foreign criminal legislation about crimes against the order of competition Semenova Valeriya Anatolievna The problem of distinction between the categories «the parties’ autonomy», «the freedom of contract» and «the free exercise» of rights by the parties Akimova Yulia M. 8. Административное право, административный процесс, информационное право The civil liability limitation of a hosting service provider for copyright and neighbouring rights infringements in the Internet Kulikovskiy Dmitry A. 9. Коррупция; терроризм; уголовный процесс MEASURE THE PLEDGE: PROBLEMS OF THEORY AND PRACTICE Kovtun Yuri A. Shevtsov Roman M. Rudov Denis N. 10. Налоговые и таможенные проблемы, финансовое право, бюджетное право Judicial control over the legality in the operation of customs authorities Koval Viktoriya D. 11. Экономика и управление народным хозяйством, предпринимательство, маркетинг, менеджмент CREATION OF CONDITIONS FOR SUSTAINABLE DEVELOPMENT OF THE SECTORAL SYSTEMS OF THE REGION Novoselov Sergey N. THE INSTITUTIONAL IMPERATIVES OF THE DEVELOPMENT OF A MESO-ECONOMIC AND SECTORAL SYSTEMS Novoselov Sergey N. Gorkusha Oksana A. Modeling project management stability of high-tech industries enterprise Chursin Alexander A. Rusinov Alexander A. Artyakov Vladimir V. The managing model of volume of the products manufactured by an enterprise when changing sales price Korneenko Viktor P. Koptev Yuriy N. Kutakhov Vladimir P. Filippov Pavel G. INTRINSIC CHARACTERISTIC OF THE CORPORATE BASIS OF THE HUMANIZATION OF ECONOMIC GROWTH Biganova Madina A. THE NECESSITY AND NATURE OF THE RESTRUCTURING OF THE STEEL INDUSTRY Sanin Nikolay V. Evaluation and analysis the development of enterprise institute in the economic system Shkurat Mariya V. Increasing competitiveness as a strategic area of geo-economic policy of the European Union Khoroshun Nikita D. 12. Финансы, денежное обращение и кредит, учет, финансово-экономическое прогнозирование The main problems of «price gouging» and «dominant position» definitions for the generating companies Neprintsev Elena V. Shubin Stanislav A. Problems of development of the Russian insurance market in terms modernization financial relations Loseva Maria V. Puchkova Elena M. The budgetary policy in regulation of economy of the state Zaiceva Svetlana S. Developing the audit of effectiveness of social expenditures in russian federation Mashkova Nataliya N. Tax briefcase as effective instrument of government of the enterprises of the chemical industry Kayl V. V. 13. Мировая и региональная экономика REGIONAL INTEGRATION AS PILLAR OF STABLE-BALANCED DEVELOPMENT OF TERRITORIES Morgoyev Boris T. CONCEPTUAL FRAMEWORK AND RESEARCH METHODOLOGY THE SUSTAINABILITY OF THE REGIONAL ECONOMY Durdyeva Jeanette A. Ashhotov Vyacheslav Yu. TO THE QUESTION OF THE CURRENT AND PERSPECTIVE TRENDS IDENTIFICATION OF DEVELOPMENT OF REGIONAL LABOUR MARKET AND LABOUR POTENTIAL REALIZATION ON THE BASIS OF COMPETITIVE STRATEGY FORMATION Akhmadov Mokhmad I. Shvedova Svetlana A. TO THE QUESTION OF SUSTAINABILITY AND SOCIO-ECONOMIC BALANCE OF REGIONAL ECONOMY Durdyeva Jeanette A. Ensuring convergence of customs policies of the Member States of the Customs Union in the transition to the Eurasian Economic Union Khapilin Stanislav A. Evolutionary stages of development of institutional model of the European Union Guzhavyna Ludmila M. Philippov David I. 14. Управление инновациями и инвестициями Technology transfer is a necessary tool for the implementation of innovations in Russia: NASA experience in information support of the space technologies transfer in the commercial sector Paleev Denis L. Ozhiganov Edvard N. Kozireva Nataliya M. Tarzhmanova Rysa Sh. Formation of scientific-educational-industrial complex by innovation-oriented industrial reproduction process Gerasina Yulia A. Malishev Evgeniy V. Management model of the organization of innovative activity at the industrial enterprise Gerasina Olga N. Denisova Olga N. MANAGEMENT PROCESS OF FOREIGN DIRECT INVESTMENTS` INFLOW IN INNOVATION SPHERE IN THE ASPECT OF THE NATIONAL INNOVATION SYSTEM`S DEVELOPMENT Kireeva Julia N. Rud Natalia Yu. Spatial innovation as a resource for social and economic development Leontieva Lidia S. Ilyin Andrey B. Konotopov Alexey I. REGULATION OF INNOVATION ACTIVITY AS POSSIBLE OF SOCIAL AND ECONOMIC INTERESTS GARMONIZATION Orlova Liubov N. Methodological bases of innovative transformations and increase of competitiveness of the industry of the Russian Federation Gonenko Daniil Vl. Analysis of the possibility of risk management in construction enterprise innovation Roslyakov R. A. 15. экономическая безопасность Methodological aspects in the solution of a world food problem Vladimirova Margarita P. Polyakov Denis An. Increase of economic security: adaptation existing and development of new methods Borodin Denis V. 16. экономическая теория The mechanism of formation of professionally-qualifying rent and its value Gerasin Alexander N. Salnikova Tatiana S. Matnenko Nelli N. RECEPTION CASH TERMINOLOGY GOLDEN HORDE IN THE LANGUAGES OF THE PEOPLES RUSSIA Burykin Alexei A. Khaydarov Rinat R. Khrustalyova Olga N. THE EVOLUTION OF CONCEPTS OF FACTORS OF PRODUCTION IN ECONOMIC THEORY AND THEIR ROLE IN THE DEVELOPMENT ENTERPRISE INSTITUTE Yeremyan Varsine S. 17. Математические методы и информационные технологии Mathematical models of analysis of the risk that arise from mergers of aerospace industry enterprises Shamin Roman V. Milkovski Alexandr G. 18. ЭКОНОМИКА ТРУДА From investments into a human capital to economy of knowledge Zavatsky Lydia Arh. 19. РАЗНОЕ Tradition and Modernization: Dialectics concept Schipkov Alexander Vladimirovich THE LEGAL STATUS OF COMMISSIONS ON MINORS AFFAIRS AND PROTECTION OF THEIR RIGHTS AT THE PRESENT STAGE (ON THE EXAMPLE OF THE REPUBLIC OF BASHKORTOSTAN) Vitcke Regina E.

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Governed by state law, the right of publicity is an intellectual property right that protects against the unauthorized use of an individual’s identity for commercial purposes and grants that individual the exclusive right to control and profit from commercial use of his or her identity. This means, for example, that Olympic gold medalist Ryan Lochte has the exclusive right to control and profit from any sales of custom-made American flag grills using his image or that Kim Kardashian has the exclusive right to control and profit from use of her name to sell perfume. Even your friend Bucky would have an exclusive right to control and profit from use of his identity in connection with Rosetta Stone advertisements. That is, of course, unless Bucky licensed or transferred his right of publicity to someone else—someone like Facebook.
In its motion to dismiss, Facebook contested, among other things, that users had consented to Sponsored Stories, in effect licensing their publicity rights by agreeing to Facebook’s terms of service. These terms of service gave Facebook broad power to pair user content with commercial and sponsored information, allowing users to manage these pairings through their privacy settings. The plaintiffs noted that Sponsored Stories did not exist when they initially signed up for Facebook and agreed to the then-current terms of service. Even if the now-current terms are broad enough to encompass Sponsored Stories, the plaintiffs argue they never willfully or knowingly consented to Sponsored Stories.
In denying Facebook’s motion to dismiss last year, the court only stated that an issue of fact existed with regard to consent. Before the court could make a final determination on the issue, the parties proposed a settlement last month.
As cases like Fraley settle out of court without precedential holdings, questions about what constitutes valid consent within social media platforms—with terms constantly changing to keep up with new, revenue enhancing features—remain contested. Courts tend to evaluate these types of agreements on the basis of notice, with some courts finding that consent can be premised on constructive notice of the terms a user agrees to by entering a site or clicking “I Accept.” To determine if Facebook’s terms have changed or to receive notice of changes after they initially click “I Accept,” Facebook users—like the plaintiffs in Fraley—must take further steps such as checking or “liking” the Site Governance Page. A court might charge users with being on constructive notice of any amendments given users’ initial consent to accessible terms, one of which included how Facebook could amend these terms.
With the consent issue left unresolved in Fraley, social media sites and the companies looking to advertise through these platforms should take note of the proposed terms of the settlement. Aside from paying out damages to the named plaintiffs, attorneys, and certain non-profit organizations, Facebook is required to make it easier for users to see and control what content appears in Sponsored Stories (although not requiring any universal opt-out feature) and spell out more clearly in its terms that users are granting Facebook a license of their publicity rights.
Even if the parties agree to settle once these changes are made, the court must also accept the proposed settlement. The path to settlement has seen a few obstacles. Last month, Judge Lucy Koh stepped down one day before a hearing on the proposed settlement was set to occur. This past June, the plaintiffs in another class action, C.M.D. v. Facebook, Inc., filed a motion to intervene to oppose the preliminary approval of the settlement. C.M.D., filed on behalf of minor users, involves Facebook’s Sponsored Stories and advertising more generally and argues that its plaintiffs, as minors, are incapable of consenting to Facebook’s use of their names and likenesses as a matter of law. The C.M.D. plaintiffs contend that, as members of the larger class in Fraley, their claims in the C.M.D. action would be barred without any substantial benefit if the Fraley settlement goes forward as proposed. Judge Richard Seeborg, the new judge assigned to the Fraley case, stated in his July 25, 2012 order that the C.M.D. plaintiffs could argue in opposition to the proposed settlement at the hearing for preliminary approval on August 2nd.
At the August 2nd hearing, Judge Seeborg expressed “significant concerns” about the proposed settlement, particularly why no class members—except the named plaintiffs—would recover any compensation. Facebook’s counsel noted that the parties were unable to formulate the value of each user’s publicity rights violation.
Stay tuned to see how, or if, Facebook’s latest privacy saga—and your friend Bucky’s publicity rights—get resolved and the implications any resolution might have on social networking sites’ advertising.
Meg C. Lenahan is a summer associate with Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, a leading intellectual property law firm based in Chicago, Illinois. Pattishall McAuliffe represents both plaintiffs and defendants in trademark, copyright, and unfair competition trials and appeals, and advises its clients on a broad range of domestic and international intellectual property matters, including brand protection, Internet, and e‑commerce issues.
 Class Action Complaint for Damages, Fraley v. Facebook, Inc., CV 111-196193 (Cal. Super. Ct. March 11, 2011).
 Cavan Sieczkowski. Ryan Lochte Grill: London Olympics Swimmer Shows Off Red, White and Blue Teeth. Huffington Post, Jul. 30, 2012, http://www.huffingtonpost.com/2012/07/30/ryan-lochte-grill-london-olympics-photos_n_1719116.html.
 Fraley, 830 F. Supp. 2d at 805-06.
 See Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 35 (2d Cir. 2002) (holding customers had not consented to arbitration term because they did not have “reasonably conspicuous notice” of term that was “hidden below the ‘Download’ button” and only visible after they scrolled down the screen).
 See e.g., Feldman v. Google, Inc., 513 F. Supp. 2d 229, 236-38 (E.D. Pa. 2007); Cairo, Inc. v. Crossmedia Services, Inc., 2005 WL 756610, at *2 (N.D. Cal. April 1, 2005) (holding that visible display of site’s name and logo, with visible notice that proceeding constituted acceptance of terms, with visible hyperlink to those terms constituted valid notice and proceeding constituted acceptance of those terms); Ticketmaster Corp. v. Tickets.Com, Inc., 2003 WL 21406289, at *2 (C.D. Cal. March 7, 2003) (“[A] contract can be formed by proceeding into the interior web pages after knowledge (or in some cases, presumption knowledge) of the conditions accepted when doing so.”).
 14. Amendments, Statement of Rights and Responsibilities, Facebook, Inc., http://www.facebook.com/legal/terms.
 See Laura Stampler. Here’s the Incredibly Clever Way Free People Uses Instagram to Sell Jeans. Business Insider. Jul. 25, 2012, http://www.businessinsider.com/free-people-and-urban-outfitters-instagram-advertising-2012-7?op=1.
 Dan Levine. Judge Steps Away from Facebook Privacy Lawsuit. CNBC. Jul. 11, 2012, http://www.cnbc.com/id/48153005.
 Motion and Memorandum and Points of Authority in Support of Intervention to Oppose the Motion for Preliminary Approval of Class Settlement, Fraley v. Facebook, Inc., CV 11-1726(N.D. Cal. June 22, 2012).
 Order Re Motion to Intervene, Fraley v. Facebook, Inc., CV 11-1726 (N.D. Cal. Jul. 25, 2012).
 Dan Levine. Judge Skeptical of Facebook Settlement over Ad Product. Chicago Tribune. Aug. 2, 2012, http://www.chicagotribune.com/news/sns-rt-us-facebook-privacy-lawsuitbre8711sp-20120802,0,6642075.story.

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[212 U.S. 86, 87] Messrs. Moorfield Storey, E. B. Perkins, H. S. Priest, J. L. Thorndike, and J. D. Johnson for plaintiff in error.
[212 U.S. 86, 93] Messrs. G. W. Allen, R. L. Batts, Robert Vance Davidson, Jewel P. Light-foot, John W. Brady, T. W. Gregory, and Messrs. Allen & Hart for defendant in error.
This case was begun in the state district court of Travis county, Texas, to forfeit the permit of the plaintiff in error, the Waters-Pierce Oil Company, a corporation of the state of Missouri, to conduct business in the state of Texas, and to assess penalties against it for violation of the anti-trust laws of that state. The prosecution was under two laws of the state,-one of 1899 and one of March 31, 1903. The proceeding was brought by the attorney general of Texas and the county attorney of Travis county, to recover penalties, under the act of [May 25] 1899, from the 31st day of May, 1900, until the 31st day of March, 1903, at the rate of $ 5,000 per day, and under the act of 1903, from the 31st of March, 1903, till the 29th of April, 1907, at the rate of $50 per day, and to cancel the permit of the defendant to do business, other than interstate, in Texas.
The jury returned a verdict against the defendant, and as- [212 U.S. 86, 97] sessed penalties, under the act of 1899, from May 31, 1900, to March 31, 1903,-1,033 days. Such penalties were assessed at the rate of $1,500 a day during that period, being the total sum of $1,549,500. The jury also found against the defendant under the act of 1903, and assessed the penalties for each day between April 1, 1903, and April 29, 1907,-1,480 days,-at the rate of $50 per day, making a total of $74,000. The jury further found that the permit of the defendant to do business in the state of Texas should be canceled. Thereupon the court rendered a judgment for the state of Texas for the sum of the penalties assessed, $1,623,500, and ordered a cancelation of the defendant's permit to do business in the state except as to its interstate commerce business. This judgment was affirmed upon appeal to the court of civil appeals of Texas (106 S. W. 918), and, upon application to the supreme court of Texas, that court refused to grant a writ of error, and the case was brought here.
The jurisdiction of this court to review the proceedings of the state courts, as we have had frequent occasion to declare, is not that of a general reviewing court in error, but is limited to the specific instances of denials of Federal rights, whether those pertaining to the constitutionality of Federal or state statutes, or to certain rights, immunities, and privileges of Federal origin, specially set up in the state court, and denied by the rulings and judgment of that court. U. S. Rev. Stat. 709, U. S. Comp. Stat. 1901, p. 575. Nor does this court sit to review the finding of facts made in the state court, but accepts the findings of the court of the state upon matters of fact as conclusive, and is confined to a review of questions of Federal law within the jurisdiction conferred upon this court. Quinby v. Boyd, 128 U.S. 489 , 32 L. ed. 503, 9 Sup. Ct. Rep. 147; Egan v. Hart, 165 U.S. 188 , 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Downer v. Richards, 151 U.S. 658 , 38 L. ed. 305, 14 Sup. Ct. Rep. 452; Thayer v. Spratt, 189 [212 U.S. 86, 98] U. S. 346, 47 L. ed. 845, 23 Sup. Ct. Rep. 576. We shall not, therefore, undertake to follow counsel in the consideration of all the questions argued, but shall limit our review to questions of a Federal nature which we deem to be properly made in this record and essential to the decision of the case.
'The statute known as the anti-trust law of 1903 became effective on March 31, 1903, and has since continued in force. For the purposes of this charge you are instructed that this statute defines a trust to be a combination of capital, skill, or acts by two or more persons, firms, corporations, or associations of persons, or either two or more of them, for either, any, or all of the following purposes, viz.: [212 U.S. 86, 99] '(1) To create or which may tend to create or carry out restrictions in trade or commerce in Texas, or to create or carry out restrictions in the free pursuit in Texas of any business authorized or permitted by the laws of this state.
The complaint in the case is voluminous, and its averments contain the history of the so-called conspiracy between the Waters-Pierce Oil Company and a number of persons composing the Standard Oil Company, beginning in January, 1870, for the purpose of monopolizing and controlling the business of refining and transporting and selling petroleum and similar products throughout the United States and in the state of Texas. It charges that the Waters-Pierce Oil Company, incorporated in 1878, and the predecessor of the defendant company, was a party to that conspiracy, and, for the purpose of carrying out the same, had entered into contracts with corporations and individuals engaged in the business of selling petroleum and similar products within the state, and suppressed competition therein. It charges that the Waters-Pierce Oil Company had entered into an agreement with the Standard Oil Company of New Jer- [212 U.S. 86, 101] sey for the purpose of monopolizing the trade in petroleum and for the purpose of carrying out certain contracts and conspiracies, entered into for the purposes aforesaid, and permitted the Standard Oil Company to acquire a majority of the shares of stock of the Waters-Pierce Company.
The original Waters-Pierce Oil Company, it states, had been dissolved, and the new company, the present defendant, organized on May 29, 1900, had assumed all the contracts and agreements of its predecessor, and it was averred that the dissolving of the old Waters-Pierce Company and the forming of the new company, the defendant in this case, was in further pursuance of the conspiracy for the purpose of continuing the monopoly and control which had been acquired by the old company, and for the purpose of rendering ineffective the judgments of the state court and of this court ( 177 U.S. 28 , 44 L. ed. 657, Sup. Ct. Rep. 518), wherein the right of the Waters-Pierce Company to do business in Texas was forfeited.
It was further averred that the new corporation was of the same name as the old one, with the same amount of stock, which was distributed to the holders of stock in the new corporation in the same proportion among the shareholders as it was in the old corporation. It is charged that a major part of the capital stock, although in fact owned by the Standard Oil Company of New Jersey, stood for a time in the name of H. C. Pierce, but was in fact owned by the Standard Oil Company. That the conduct of the business in the new corporation was not changed, and that it was controlled by the Standard Oil Company of New Jersey in the same manner as the old company had been; that the old contract, whereby there was a division of territory and the limitation of the operations of the Waters- Pierce Oil Company to the state of Texas and some other territory, was maintained and enforced. That other concerns had been acquired in the carrying out of the scheme charged; that said companies had been put out of business or were used in controlling and monopolizing the trade and business aforesaid; that the defendant, the new corporation, was a party to these arrange- [212 U.S. 86, 102] ments, participated in them, and was engaged in carrying them out.
The defendant answered and filed a large number of special pleas and exceptions, taking issue upon the charges made in the [212 U.S. 86, 103] petition, and alleging the unconstitutionality of the acts of 1899 and 1903, and alleging that, if the petition of the state of Texas be granted, it would be denied the equal protection of the laws, be subjected to ex post facto laws, deprived of its property without due process of law, and have the obligations of its contracts impaired, contrary to the provisions of the Constitution of the United States.
The jury was further instructed that, if they found from the evidence that the direction of the affairs of the Standard Oil Company of New Jersey and those of the defendant company [212 U.S. 86, 105] were under the same management or control after March 31, 1903, and prior to April 29, 1907, and that they were placed under such common management or control by their respectively authorized officers, and if such management or control created or tended to create or to carry out restrictions in the sale of oil in Texas, as above stated, or to fix, maintain, or increase the prices of such oil in said state, or to prevent or lessen competition in the sale of such oil, they might return a verdict for the state. The jury found each of the issues submitted against the defendant. The court of civil appeals affirmed this finding of fact, and we must accept the same as established for the purposes of this proceeding in error.
Much of the argument for plaintiff in error is predicated upon the contention that the acquiring of the stock of the Waters-Pierce Company by the Standard Oil Company and the making of the agreement charged were not shown to have been acts done in Texas. It is contended that such acquiring of stock, and agreement, if any, were acts beyond the jurisdiction of the state. But an inspection of the record discloses that the court charged that no agreement made by the defendant outside of the state of Texas could be made the basis of forfeiting its permit to do business in the state, unless such agreement was executed, or attempted to be executed, in the state, by the duly authorized agents of the defendant. And, in the findings which we have above quoted as to the evidence, the state court has [212 U.S. 86, 107] found that the defendant has been, since May 31, 1900, a party to an agreement with the Standard Oil Company of New Jersey, to create a monopoly and to control prices and prevent competition in Texas, and that, to a large extent, the object has been accomplished. These findings of facts are conclusive upon us, and show that the conviction was had for acts and transactions committed and carried out within the state of Texas.
The argument to the effect that the rulings of the court as to the admission of testimony, and upon questions of general law, deprived the defendant of its property and rights without due process of law, requires us to notice the limitations upon the authority of this court when dealing with legislative acts and proceedings to enforce the same in the state courts. That state legislatures have the right to deal with the subject- matter and to prevent unlawful combinations to prevent competition and in restraint of trade, and to prohibit and punish monopolies, is not open to question. National Cotton Oil Co. v. Texas, 197 U.S. 115 , 49 L. ed. 689, 25 Sup. Ct. Rep. 379; Smiley v. Kansas, 196 U.S. 447 , 49 L. ed. 546, 25 Sup. Ct. Rep. 289. Having the power to pass laws of this character, of course the state may provide for proceedings to enforce the same. The state, keeping within constitutional limitations, may provide its own method of procedure and determine the methods and means by which such laws may be made effectual. 'The limit of the full control which the state has in the proceedings of its courts, both in civil and criminal cases, is subject only to the qualification that such procedure must not work a denial of fundamental rights or conflict with specific and applicable provisions of the Federal Constitution.' West v. Louisiana, 194 U.S. 258, 263 , 48 S. L. ed. 965, 969, 24 Sup. Ct. Rep. 650; and see Davis v. Texas, 139 U.S. 651 , 35 L. ed. 300, 11 Sup. Ct. Rep. 675; Brown v. New Jersey, 175 U.S. 172, 175 , 44 S. L. ed. 119, 120, 20 Sup. Ct. Rep. 77; Allen v. Georgia, 166 U.S. 138, 140 , 41 S. L. ed. 949, 950, 17 Sup. Ct. Rep. 525; Re Converse, 137 U.S. 624, 632 , 34 S. L. ed. 796, 799, 11 Sup. Ct. Rep. 191; and Twining v. New Jersey, 211 U.S. 78 , 53 L. ed. --, 29 Sup. Ct. Rep. 14, decided at this term of court, where the subject is fully discussed, and previous cases in this court cited.
It is further insisted that the acts in question are so vague, indefinite, and uncertain as to deprive them of their constitutionality, in that they punish by forfeiture of the right to do business, and the imposition of penalties, under provisions of an act which do not advise a citizen or corporation prosecuted under them, of the nature and character of the acts constituting [212 U.S. 86, 109] a violation of the law. These objections are found in the words of the act of 1899, denouncing contracts and arrangements 'reasonably calculated' to fix and regulate the price of commodities, etc. And, in the act of 1903, acts are prohibited which 'tend' to accomplish the prohibited results. It is insisted that these laws are so indefinite that no one can tell what acts are embraced within their provisions. In support of this contention it is argued that laws of this nature ought to be so explicit that all persons subject to their penalties may know what they can do, and what it is their duty to avoid. And reference is made to decisions which have held that criminal statutes should be so definite as to enable those included in its terms to know in advance whether an act is criminal or not. Among others, Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. 917, is cited, in which the opinion was by Mr. Justice Brewer, then judge of the circuit court, in which it was held that the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. To the same effect is Chicago & N. W. R. Co. v. Dey, 1 L.R.A. 744, 2 Inters. Com. Rep. 325, 35 Fed. 866, also decided by Judge Brewer at circuit. And also the case of Louisville & N. R. Co. v. Com. 99 Ky. 132, 33 L.R.A. 209, 59 Am. St. Rep. 457, 35 S. W. 129, is relied upon, in which a railroad was indicted for charging more than a just and reasonable rate, in which it was held that the law was unconstitutional, for, under such an act, it rests with the jury to say whether a rate is reasonable, and makes guilt depend not upon standards fixed by law, but upon what a jury might think as to the reasonableness of the rate in controversy. But the Texas statutes in question do not give the broad power to a court or jury to determine the criminal character of the act in accordance with their belief as to whether it is reasonable or unreasonable, as do the statutes condemned in the cases cited.
As to the phrase, 'reasonably calculated,' what does it include less than acts which, when fairly considered, tend to accomplish the prohibited thing, or which make it highly probable that the given result will be accomplished? Again, speaking of the Sherman act, this court said in Swift & Co. v. United States, 196 U.S. 375 , 49 L. ed. 518, 25 Sup. Ct. Rep. 276.
Again, it is contended that the fines imposed are so excessive as to constitute a taking of the defendant's property without due process of law. It is not contended in this connection that the prohibition of the 8th Amendment to the Federal Constitution against excessive fines operates to control the legislation of the states. The fixing of punishment for crime or penalties for unlawful acts against its laws is within the police power of the state. We can only interfere with such legislation and judicial action of the states enforcing it if the fines imposed are so grossly excessive as to amount to a deprivation of property without due process of law. Coffey v. Harlan County, 204 U.S. 659 , 51 L. ed. 666, 27 Sup. Ct. Rep. 305.
The business carried on by the defendant corporation in Texas was very extensive and highly profitable, as the record discloses. The property of the defendant amounted to more [212 U.S. 86, 112] than forty millions of dollars, as testified by its president. It dividends had been as high as 700 per cent per annum. It was the theory of the state, sustained by the verdict and judgment, that the former course of business was continued, notwithstanding the judgment of ouster in the former case. Within the bounds of the statute the penalties were left to the discretion of the jury trying the case. While the penalties imposed are large, they are within the terms of the statute. Under the act of 1899 the jury imposed a penalty at the rate of $1,500 a day; under the act of 1903 at the rate of $50 per day. Assuming for this purpose that the defendant was guilty of a violation of the laws over a period of years, and in transacting business upon so large a scale, as shown in this case, we are not prepared to say, after confirmation of the verdict and judgment in courts of the state, that there was want of due process of law in the penalties assessed.

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FindACase | Pena v. Honeywell International Inc.
Pena v. Honeywell International Inc.
Magistrate Judge Lincoln D. Almond filed a Report and Recommendation (“R&R”) (ECF No. 42) recommending that Defendant Honeywell International Inc.'s (“Honeywell”) Motion for Summary Judgment (ECF No. 27) be granted with respect to all counts in Plaintiff's Amended Complaint (ECF No. 9). Plaintiff Mayra F. Pena timely filed an Objection to the R&R (“Objection”) (ECF No. 45). For the reasons set forth below, the Court accepts the R&R.
This Court's de novo review leads it to the same conclusion as Magistrate Judge Almond: summary judgment is appropriate on all counts. As an initial matter, with respect to Counts I through VIII, it is clear that Plaintiff misconstrues and misapplies the governing standard. Throughout her filings with this Court, Plaintiff purports to rationalize or spell out why she provided inconsistent statements in her SSDI application and in this litigation. However, this is not what Cleveland requires. Rather, “to defeat [a defendant's] motion for summary judgment, [a plaintiff] must explain why the representations of total disability [s]he has made in the past are consistent with [her] current claim that [s]he could perform the essential functions of [her position] with reasonable accommodation.” Sullivan v. Raytheon Co., 262 F.3d 41, 47 (1st Cir. 2001) (citing Cleveland, 526 U.S. at 798 (emphasis added)). Plaintiff simply has not satisfied this standard.
In other words, Plaintiff has not sufficiently explained why her representation for purposes of SSDI that she became unable to work because of her disabling condition on March 8, 2013 and remained disabled after that point, is consistent with her position for purposes of this litigation that on March 8, 2013 (her final day of work), she was “completely capable of working in other settings” with the exception of the Molding Department. Moreover, a closer look at Plaintiff's deposition testimony crystallizes the inconsistency when viewed against Plaintiff's SSDI application.While at times confusing, Plaintiff's deposition clearly states that she was wholly unable to work.
Plaintiff's post hoc affidavit, which conflicts with her SSDI application and her deposition testimony, does not alter this landscape; indeed, “a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity.” Cleveland, 526 U.S. at 806-07 (citations omitted). Further, in light of the Supreme Court's Cleveland decision handed down two years after the EEOC's guidance, Plaintiff's citation to and reliance on factors set forth by the EEOC is of no moment.
Finally, summary judgment is appropriate with respect to Plaintiff's retaliation claims (Counts IX through XII). Plaintiff's conclusory declarations in her Objection do nothing to alter the fact that she still has not identified evidence upon which a reasonable juror could causally link her February 21, 2013 complaint to her supervisor with her June 17, 2013 termination. When Plaintiff's statements, bereft of evidentiary support, are dispensed with, all that remains is her reliance on temporal proximity, which in this instance cannot carry the day. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (“Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity.” (citations omitted)); see also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.'” (citations omitted)). The Court has considered Plaintiff's remaining arguments and deems them to be without merit.
Accordingly, the Court fully ACCEPTS the R&R (ECF No. 42) and adopts its reasoning. Defendant Honeywell's Motion for Summary Judgment (ECF No. 27) on all counts of Plaintiff's Amended Complaint (ECF No. 9) is GRANTED in its entirety. Judgment will enter for Defendant.
Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B)) is Defendant Honeywell International, Inc.'s Motion for Summary Judgment. (ECF Doc. No. 27). Plaintiff opposes the Motion. (ECF Doc. No. 33). A hearing was held on June 19, 2017.
Plaintiff commenced this employment discrimination action in state court on or about April 16, 2015. Defendant removed the case to this Court on May 5, 2015. The operative pleading is Plaintiff's Amended Complaint (ECF Doc. No. 9) which was filed on August 28, 2015 and contains twelve federal and state statutory claims.
In her Amended Complaint, Plaintiff claims that Honeywell violated various anti-discrimination statutes by failing to reasonably accommodate her disabilities (Counts I through IV). She also claims her discharge was unlawfully motivated by her disabilities (Counts V through VIII). Finally, she claims that she was unlawfully subject to retaliation for reports of unlawful discriminatory conduct she made to the Human Resources Department at Honeywell (Counts IX through XII).
Summary judgment is appropriate if the pleadings, the discovery and disclosure materials on file, and any affidavits show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When deciding a motion for summary judgment, the Court must review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in the nonmoving party's favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997).
Summary judgment involves shifting burdens between the moving and nonmoving parties. Initially, the burden requires the moving party to aver “an absence of evidence to support the nonmoving party's case.” Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the moving party meets this burden, the burden falls upon the nonmoving party, who must oppose the motion by presenting facts that show a genuine “trialworthy issue remains.” Cadle, 116 F.3d at 960 (citing Nat=l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995); Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)). An issue of fact is “genuine” if it “may reasonably be resolved in favor of either party.” Id. (citing Maldonado-Denis, 23 F.3d at 581).
To oppose the motion successfully, the nonmoving party must present affirmative evidence to rebut the motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-257 (1986). “Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, [or] unsupported speculation.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). Moreover, the “evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.” Id. (quoting Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)). Therefore, to defeat a properly supported motion for summary judgment, the nonmoving party must establish a trialworthy issue by presenting “enough competent evidence to enable a finding favorable to the nonmoving party.” Goldman v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993) (citing Anderson, 477 U.S. at 249). Additionally, if the affirmative evidence presented by the nonmoving party raises a question of credibility as to the testimony provided by the moving party, summary judgment is inappropriate, and that credibility issue must be presented to the factfinders at trial. Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., 149 F.2d 359, 363 (5th Cir. 1945) (“The success of an attempt to impeach a witness is always a jury question, as is the credibility of the witnesses where they contradict one another, or themselves.”).
The following facts are gleaned from the parties' statements of fact filed pursuant to Local Rule Cv 56. (ECF Doc. Nos. 28, 35, 36). Honeywell's Cranston manufacturing facility is comprised of several production/assembly areas, including the Respiratory Department, Molding Department, Logo Department, Quickloc/Cedars Department and the SCBA Area. (ECF Doc. No. 28 at ¶ 1). In the Molding Department, Honeywell manufactures finished goods and works in process for assembly. Works in process are products in the process of manufacture that have not yet reached the finished-good state. Id. at ¶ 2. Plaintiff frequently worked in the Respiratory Department. Id. at ¶ 6.
In 2013, when Plaintiff worked at Honeywell, there were approximately twenty to twenty-five employees working in the Molding Department. Id. at ¶ 7. In the Molding Department, the machines run continuously, and a new part comes out of the machine every thirty seconds; in other Departments, the operator controls when the machines operate. Id. at ¶ 8. Some Honeywell employees indicated that they preferred to work in areas other than the Molding Department because other areas allowed employees to work at their own pace, whereas in the Molding Department, employees had to keep up with the pace of the machines. Id. at ¶ 10. Employees also preferred to work in areas other than the Molding Department because the machines were closer together in other Departments, and employees were able to more easily socialize. Id. at ¶ 11.
In 2012, Honeywell decided that all employees who worked in the production and assembly areas should be cross-trained to work in all departments. Id. at ¶ 13. Honeywell felt it was important to have cross-trained employees to meet the demands of Honeywell customers. Id. at ¶ 14. It was Honeywell's business practice to move associate assemblers to departments where customer demand was greatest and, as a result, an employees' inability to work in any particular area would burden the production process. Id. at ¶ 15. It was particularly important for employees to rotate into the Molding Department because it runs twenty-four hours a day and does not shut down for employee lunch and other breaks. Id. at ¶ 16. To fill positions when employees took breaks, vacation time, or otherwise, employees working in other areas would move to the Molding Department. Id. at ¶ 17. Honeywell trained all of its employees, including Plaintiff, in all Assembly Departments for which training was required, including the Molding Department. Id. at ¶ 18.
Honeywell hired Plaintiff in or about 2008 as a Machine Operator and Associate Assembler in its Cranston, Rhode Island facility. Id. at ¶ 19. Plaintiff was previously employed at the same location by North Safety Products starting in or about 2002, and Honeywell hired Plaintiff when it took over the facility in or about 2008. Id. at ¶ 20. Plaintiff completed her training for the Molding Department in October 2012. Id. at ¶ 21. Following her training, Honeywell asked Plaintiff to work in the Molding Department. Id. at ¶ 22. Working in the Molding Department was consistent with Plaintiff's position as an Associate Assembler. Id. at ¶ 23. Over a month after Plaintiff's training in the Molding Department, she took medical leave commencing on November 29, 2012. Id. at ¶ 24. This medical leave was, at least in part, due to her depression because of the change of season. Id. at ¶ 25. Prior to her medical leave commencing on November 29, 2012, Plaintiff had previously taken several other medical leaves of absence totaling twenty-three weeks, including from October 14, 2011 to November 21, 2011; from December 16, 2011 to February 13, 2012; and from June 22, 2012 to August 6, 2012. Id. at ¶ 26. Given these previous medical leaves, Plaintiff had no remaining Family and Medical Leave Act (“FMLA”) leave. Id. at ¶ 27. Plaintiff returned from medical leave on January 14, 2013. Id. at ¶ 28.
Upon her return from medical leave, Plaintiff worked in the Molding Department for four hours per day, two to three times per week. Id. at ¶ 29. Plaintiff worked this schedule without incident for over a month and did not complain about working in the Molding Department until late February 2013. Id. at ¶ 30. In late February 2013, Plaintiff approached Jose Gouveia, Senior Human Resources Generalist at Honeywell, to report that one of the Production Leaders, Mayra Fermin, asked her to go to the Molding Department. Id. at ¶ 31. Plaintiff claims that she told Mr. Gouveia that she did not want to work in that Department because “it was harmful to [her] emotionally.” Id. at ¶ 32. On March 7 and March 8, 2013, Plaintiff met with Mr. Gouveia; Kevin Dyer, Plaintiff's supervisor; and Conor Ryan, the Health Safety and Environmental Site Leader. Id. at ¶ 33. At the March 7, 2013 meeting, Honeywell requested a letter from Plaintiff's doctor. Id. at ¶ 34. The next day, on March 8, 2013, Plaintiff provided a letter from her psychiatrist, Dr. James Greer, dated March 4, 2013. Id. at ¶ 35. Dr. Greer's March 4, 2013 note stated: “Currently [Plaintiff] is reporting exacerbation of her anxiety systems which are interfering with her ability to function. She reports that these specifically occur when she is being sent to the molding room as opposed to the more typical duties to which she is accustomed.” Id. at ¶ 37.
Dr. Greer's note was reviewed by Mr. Ryan, as Health Safety and Environmental Site Leader, to determine what accommodations Plaintiff requested and whether Honeywell could make such accommodations. Id. at ¶ 38. Dr. Greer stated, “I am requesting that you assist her in other placements than in this setting….” Id. at ¶ 40. Dr. Greer's note did not explain how the Molding Department “exacerbate[ed]” Plaintiff's anxiety symptoms, while no other Department had this effect. Id. at ¶ 41. Plaintiff was informed that the March 4, 2013 note was not sufficient, and she would not be excused from working in the Molding Department as scheduled. Id. at ¶ 43. In response, Plaintiff told the Honeywell personnel that she was going to go home, and she called her daughter to pick her up. Id. at ¶ 44. Plaintiff never returned to work after March 8, 2013. Id. at ¶ 45.


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20th February 2019: The trial civil on the claim filed by 102 surviving passengers and relatives of deceased passengers is developing. New issues have been raised by the defendants during the 20.2.2019 at the Bari Court. The Judge is now expected to issue an order/ intermediate decision deciding on the issues raised and fixing the new hearing date for the continuance of the trial.
On February 20, 2019 will take place at the Court of Bari the next hearing of the civil lawsuit for the award of compensation to the survivor passengers and to the families of deceased or missing passengers of the vessel NORMAN ATLANTIC who are represented by our office. Given that the procedural issues that had been raised by various parties have now been resolved by the Court, it is expected that during the aforementioned hearing the Court will examine the substance of the case and the serious responsibilities and liabilities of the defendants.
Furthermore, with regards to the penal aspect of the case which is determined as far as the procedure is concerned by the Public Prosecutor and the Criminal Court of Bari, it has been announced that the criminal trial against the shipowners and the officers of the vessel NORMAN ATLANTIC will take place during this year. However, nohearingdateshavebeenfixedyet.
The annual conference of the Pan European Organisation of Personal Injury Lawyers (PEOPIL) successfully took place in Paris between 6 and 9 September 2018.
Silina Pavlakis from Pavlakis – Moschos & Associates participated as a speaker at the conference with a presentation on “BEREAVEMENT DAMAGES” in Greece (available online in pdf format).
The third hearing of the civil action of the NORMAN ATLANTIC maritime accident victims represented by our firm took place before the Bari Court of Italy on 11 July 2018. During this hearing, procedural and pre-litigation issues were again raised by various parties to the proceedings. The competent Judge, Carmela Romano, deemed that the resolution of these issues is necessary before the Court proceeds to examination of the substance of the case, i.e. the facts of fire on the ship, the causes and liabilities for the maritime tragedy, and the damage and losses suffered by the victims. An order / preliminary ruling is expected to be issued by the Judge shortly. The new hearing date before the Bari Court - which is expected to get into the substance of the case - will be determined by judicial order in a short time.
1. The Civil Procedures, regarding the compensation claims that have been filed on behalf of the survivors and families of deceased passengers who are being represented by our law firm: On 4 April 2018 the parties to the dispute appeared for the second time – the first being on 27 September 2017 – before the Tribunal of Bari, Italy, where the civil claims for compensation are pending. The Court is still at the stage where procedural, necessary issues are being examined. The next hearing has been fixed for 11 July 2018, during which it is possible that the Judge will enter into the substance of the case, including the factual circumstances, the causes for the tragedy, the responsible parties and the liabilities involved.
2. The Criminal Procedure: Extensive evidence material, information, data, indications etc. have been gathered and examined. The pre-judicial investigation by the technical experts appointed by the Judge in Bari (GIP) has been completed. Technical reports have been issued by the GIP, the competent Italian Port Authorities, the experts appointed by the Public Prosecutor in Bari, the special committee instructed by the competent Italian ministry. It is now expected that the Prosecutor in Bari will soon pronounce and file charges against specific accused persons for the tragic maritime incident. The date of commencement of the criminal trial in Bari Courts has not yet been fixed.
In July 2016, the European Commission condemned manufacturing truck companies that occupy 90% of the European market, for participation in a cartel and harmonized practices aiming, among others, at price-fixing of trucks. The companies involved are MAN, DAIMLER, IVECO, DAF, VOLVO/RENAULT, which admitted their guilt and cooperated with the Competition Commission, in order to obtain a 10% decrease of the fine, which was eventually set at 2,9 billion euro. SCANIA denied participation at the cartel. The Commission continued the investigation and concluded, in its decision dated September 27, 2017, in the condemnation of SCANIA, imposing a fine of 880 million euros.
According to the decision, the cartel operated from January 17, 1997 until January 18, 2011, that is, for 14 years.
It concerned trucks of 6-16 tons of weight (medium trucks) and “heavy-duty” trucks over 16 tons.
Those who bought or leased such trucks during the period from 1997 to 2011 have most probably been damaged due to the cartel, since they paid a higher price than what they would have paid if competition conditions applied in the market; it is probable that those people and companies are entitled to compensation from the manufacturing companies, provided that the existence and the extent of such damage is fully proven.
Our office, in cooperation with lawyers in other European countries who already handle claims of truck owners, is actively involved in this case, planning a pan-European claim for damages.
Silina Pavlakis, member of the board of directors of the Global Justice Network (GJN), participated in GJN’s Spring 2017 Conference which was held in Prague, Czech Republic, from 25 to 27 May 2017. The conference focused on human rights issues, pharmaceutical and medical devices, financial claims, as well as the possibility of filing collective claims in Europe. During the works of the conference Silina made a presentation on the Norman Atlantic maritime tragedy case, which is being handled by our office in cooperation with the Italian law firms “mbo law” and “Ambrosio & Commodo ”, members of the GJN.
Greece had enacted Laws 4092/2012 and 2837/2000, establishing restrictions and limitations respective to the liability of the Hellenic Auxiliary Fund (EPIKOURIKO KEFALEO) in Road Traffic Accidents. By its recent decisions (nr. 3/2017, 4/2017 and 5/2017) the Civil Section of the Supreme Court of Greece, in its Plenary Session, held that these law provisions, directly contradict and violate the Greek Constitution and the First Protocol of the ECHR, and as such they have been pronounced invalid and unenforceable.
The monetary limitation of non-pecuniary damages payable by the Auxiliary Fund to the secondary victims of fatal RTAs to the maximum compensation of 6.000€ per beneficiary.
The general monetary limitation of the Auxiliary Fund liability not exceeding in any case 100.000€, with retrospective application to accidents that happened prior to the law enactment.
The restriction of interest due by the Auxiliary Fund on payable compensations to 6%, substantially lower (almost half) than the interest imposed on all other private debtors and parties in litigation.
Claims for non-pecuniary damages were brought before Greek Courts by the parents and grandparents of a minor who died in a fatal Road Traffic Accident. The claim was brought against the owner and driver of the liable vehicle and against the civil liability insurance company “ASPIS PRONOIA A.E.”. During litigation the insurance company went bankrupt and its license was recalled. The Greek Auxiliary Fund “EPIKOURIKO KEFALEO” entered ex lege into the place of the bankrupt insurer and continued the pending litigation defending against the claimants’ arguments and claims, by force of article 25 par. 4 of Greek law 489/1976 codified by Presidential Decree 237/1986, implementing the respective EU law.
(c) that the interest due by the EPIKOURIKO KEFALEO on the payable compensation to the victims shall be calculated on the basis of a 6% annual rate, i.e. considerably lower (almost ½) than the legal interest rate applying to the other debtors.
- The European Convention on Human Rights.
« […] It must be noted that by the above mentioned provision of article 1 par. 4 of the Second Directive 84/5/EEC, according to which “ Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation, for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied”, it is also established that there is an obligation for payment of compensation for non pecuniary damages in case of death (Supreme Court, Plenary Session 9/1993, ECJ C-277/12 of 24-10-2013 in the case Vitalijs Drozdovs vs. Baltikums AAS). Furthermore, it is prescribed by art. 9 par. 1 of the codifying Directive 2009/103/EC exactly which are the minimum limits of the insurance cover which must in any case be complied with (ECJ-C-348/98 Fereira dd 14-11-2000).
Furthermore, according to art. 25 par of the [Greek] Constitution, the rights of the person as individual and as member of the society are guaranteed by the State, whilst any kind of limitations/restrictions imposed to these rights must be either directly provided for by the Constitution or by the law but based on respective authorization and under the condition that the principle of proportionality is safeguarded.
Finally, by art. 1 of the First Protocol of the European Convention, that has been ratified by (Greek) Law 53/1974 and is of higher formal validity than the common (usual) laws, it is provided that “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.
The setting of six thousand euros (6.000€) as the maximum limit for the non pecuniary damage of each beneficiary in case of a fatal accident is directly contradicting art. 1 par. 4 of the Second Directive 84/5/EEC, according to which “ Each Member State shall set up or authorize a body with the task of providing compensation, at least up to the limits of the insurance obligation for damage to property or personal injuries caused by an unidentified vehicle or a vehicle for which the insurance obligation provided for in paragraph 1 has not been satisfied”; this is a provision that covers also non pecuniary damages (moral damages) in case of a fatal accident, as above stated.
Also, the imposed maximum limit of 6.000€ compensation is contrary to the principle of the strict sensu proportionality (art. 25 par. 1 d of the [Greek] Constitution), because this intervention by the legislator is not effective for the achievement of the intended purpose, i.e. to ensure the viability of the Auxiliary Fund; furthermore, it is also not necessary for the achievement of its purpose, since this could have been achieved by use of milder means, either by providing for an extra financing of the fund by the state budget or by obliging it [the Fund] to improve its financial situation by increasing its income and reducing its operational expenses.
On the other hand, the application of the above provision, which extends the application of this upper monetary limit of the EPIKOURIKO KEFALEO liability to already existing/pending claims, is invalid, because it is contrary to the above mentioned article 1 of the First Additional Protocol of the ECHR, […]. This provision establishes the right of a person to have his property respected, which [property] the person can be deprived from only for reasons of public interest. The meaning of property includes not only rights in rem but also all rights of “property nature” and established “economic rights”. Accordingly, the rights arising out of obligations are included, and more specifically claims, […] The afore mentioned provision of [Greek] Law 4092/2012 to drastically reduce/limit the height of the non-pecuniary damages payable by the EPIKOURIKO KEFALEO is in essence abolishment of the civil right of the beneficiaries arising out of the death of their relative in a road traffic accident. This legal provision is therefore incompatible with article 1 of the First Additional Protocol of the ECHR, because it tends towards an unjustified deprivation of a property item of the beneficiaries, without the presence of public benefit reasons. The mere budgetary/cash interest of the EPIKOURIKO KEFALEO does not consist public benefit.
Furthermore, as per art. 4 par. 1 and 2 of the [Greek] Constitution, Greek citizen are equal in front of the law. Greek citizen have equal rights. By this provision, it is not only the equality of Greek citizen in front of the law that is established, but also the equality of the law towards them, in the sense that the legislator, when regulating essentially similar things, relationships or situations, categories or persons, cannot differentiate his regulation by introducing exceptions, unless when the different regulation is not arbitrary and is imposed by reasons of general public interest/benefit; this existence of special circumstances or social or public interest/benefit is subject to the control of the courts (Supreme Court, Plenary Session 3/2006, 38/2005, 30/2005, 23/2004, 11/2008).
Finally, by article 14 of the International Covenant on Civil and Political Rights, «all are equal in front of the courts”. Each person is entitled to have his case tried just and in public, by a competent, impartial and independent court of justice … in disputes of civil rights and obligations”. The International Covenant on Civil and Political Rights has been implemented into Greek legislation by Law 2462/1997. In the sense of these provisions, the principle of equality of the litigation parties, which is a special manifestation of the principle of equality, imposes their equal treatment by the legislation which determines the terms of judicial protection. Therefore, law provisions by which favorable treatment of one of the litigation parties is being established, which party gets in a favorable situation in comparison to his counterparty, are not enforceable/not valid (Supreme Court, Plenary Session 12/2013, 4/2012). Accordingly, the provisions by which it is determined that the interest rate that is payable by the EPIKOURIKO KEFALEO is 6% per year, i.e. a rate that is lower than what its own debtors are obliged to pay to it and which applies to all debtors, is contradicting to 1) art. 4.1 of the Constitution and art. 14 of the International Covenant on Civil and Political Rights, since by these law provisions a favorable treatment of the EPIKOURIKO KEFALEO is established whilst his counterparty is placed in disadvantage and 2) to art. 1 of the First Additional Protocol of the ECHR, since by these favorable provisions, damage is being caused to the counterparty of the EPIKOURIKO KEFALEO (in this present case to the respondents), without this being justified by reasons of public interest, since the mere cash interest of the EPIKOURIKO KEFALEO cannot justify the violation of road traffic accident victims’ right to claim and to be paid interest for their claims at a rate equal to that what private parties are obliged to pay in general, while the fact that the EPIKOURIKO KEFALEO, which is not a public law legal entity, but is simply under the control of the State (Supreme Court 1025/2015) does not constitute a public interest reason.
Furthermore, regarding the application filed by the applicant with its pleadings for the submission of a preliminary question to the European Court of Justice acc. το art. 267 of the Treaty on the Functioning of the European Union, based on its [the applicant’s] argument that there exists an interpretation issue of the primary and secondary EU law and in particular an issue for the interpretation of art. 1 par. 4 of the Directive 84/5/EEC in relation to art. 4 par. 1 of [Greek] Law 4092/2012, it is held [by the Court] that the requirements are not present for the reference of a preliminary question and specifically there exists no doubt about the interpretation of the above EU law provision and therefore there exists no necessity for a ECJ preliminary ruling; the respective application is therefore rejected.[…]».

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art. 9
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art. 1
art. 1
art. 4
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art. 14
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art. 267
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This is a prior art case. Suffolk’s patent application was filed back in 1996, but it turns out that the invention was described in a 1995 UseNet newsgroup post posted by a college student. The question on appeal is whether that posting counts as prior art under 35 U.S.C. 102(a) (pre-AIA).
Under the statute, a patent is invalid if “(a) the invention was … described in a printed publication … before the invention thereof by the applicant for a patent.” Courts have repeatedly found that online content fits within the definition of printed publication. Rather, the touchstone question is whether the material was sufficiently publicly accessible. Public accessibility looks to the ability of persons who would be interested or skilled in the subject matter to locate the reference using only reasonable diligence. If a reference is sufficiently disseminated at time of original publication then the ability to later locate the reference is irrelevant.
The record indicated that those of ordinary skill in the art were using the UseNet newsgroups in 1995, including Suffolk’s own technical expert.
Although not fully indexed, the UseNet group was structured in a hierarchical manner that would have allowed someone interested in the topic to identify the particular group and read the posts.
The post in question resulted in at least six responses in the week following the publication – indicating that the post was likely sufficiently distributed at publication.
The case was discussed in an earlier Patently-O Posting titled Structuring a Privateering Contract (2012).
Note – although this case was decided under pre-AIA rules, its holding should apply equally to the restructured Section 102 that also identifies “printed publications” as a form of prior art.
This case presents a classic law school hypothetical of an invention that is anticipated but likely not obvious. According to the appellate panel, the prior art fully discloses and enables the invention but also teaches that the proposed invention is impractical and does not work well. As discussed below, however, the anticipation holding itself is somewhat controversial because it is based upon the conclusion that a broad range disclosure found in the prior art ("less than 150 ppm") anticipates the narrower range found in the claims ("less than 50 ppm").
A jury found ClearValue’s patent valid and infringed and the district court denied the defendants motions to set the patent verdict aside. On appeal the Federal Circuit reversed based upon the appellate court's own factual finding that a single prior art reference teaches and enables each element of the asserted patent claim.
Background: The patent at issue is directed to a process for clarifying water using a flocculated suspension of aluminum along with high molecular weight quarternized polymers. The listed inventor, Richard Haase continues to be an owner of the patent and also CEO of ClearValue. Haase has filed more than 50 water purification and energy related patents and is also a graduate of the University of Missouri (ChemE + Mathematics + Economics). The defendant, Pearl River was once ClearValue’s customer but later began making its own version of the patented process. ClearValue and Haase sued for patent infringement and for trade secret violation (for using the process without authority even before he filed for patent protection).
Anticipation versus Obviousness: The appeal focused on anticipation. Pearl River argued that all of the elements of CV's asserted claim were previously disclosed in U.S. Patent No. 4,800,039 (Hassick). The jury found otherwise. As a matter of procedure, a jury's verdict must be supported by "substantial evidence." If not, it must be set aside either by the district court or on appeal. At trial, the defendants had presented their case that Hassick taught each element of the claimed invention while the plaintiffs pointed only to "teaching away" found in patent. Unfortunately for the plaintiffs, "teaching away" is legally irrelevant to the question of anticipation. See Celeritas Techs., Ltd. v. Rockwell Int'l Corp., 150 F.3d 1354, 1361 (Fed. Cir. 1998). Rather, under 35 U.S.C. § 102 a claim will be anticipated and therefore invalid if a single prior art reference describes "each and every claim limitation and enable[s] one of skill in the art to practice an embodiment of the claimed invention without undue experimentation." Quoting Am. Calcar, Inc. v. Am. Honda Motor Corp., 651 F.3d 1318, 1341 (Fed. Cir. 2011).
Genus Species Anticipation: The only gap in the prior art disclosure was that Hassick generally disclosed "low-alkalinity systems (i.e., 150 ppm or less)" and "alkalinity of between 60-70 ppm" while the asserted patent claimed "alkalinity less than or equal to 50 ppm." In its 2006 Atofina decision, the Federal Circuit addressed a similar genus-species situation involving a narrow claimed temperature range and a broader temperature range found in the prior art. Atofina v. Great Lakes Chem. Corp., 441 F.3d 991 (Fed. Cir. 2006). In Atofina, the court held that a broad genus range disclosure in the prior art did not anticipate the narrow species range claimed. There, both the hypothetical “person having skill in the art” (PHOSITA) and the patentee agreed that there was something special or “critical” about the claimed temperature range. The court distinguished this case from Atofina based upon its factual conclusion that “there is no allegation of criticality or any evidence demonstrating any difference across the range.” Based upon the logical analysis that the narrow range is not critically different from the broad range, the Federal Circuit held that the claimed narrow range was fully disclosed by the broad range and therefore is unpatentable.
Comment – Whither Obviousness: Interesting notion: The mechanism that the court used to distinguish this case from Atofina are very much akin to obviousness principles — looking essentially for synergy or unexpected results that make the narrow range qualitatively different from the broad range. It seems to me, however, that if these obviousness principles can be used to extend the anticipatory scope of prior art, then other obviousness principles (such as teaching away) should also be relevant.
This case presents a nice fact pattern for a law school examination question on the operation of the novelty rules of 35 U.S.C. § 102. Solvay’s patent covers a method for manufacturing a non-ozone-depleting form of penta-flouro-propane (HFC-245fa) that is primarily used in spray-foam insulation products. Honeywell manufactures and sells over 1,000,000 pounds of the compound each year.
Prior-User Facts: Honeywell (at that time, AlliedSignal), the accused infringer, was in possession of a working model of the invention in the United States (US) prior to Solvay’s invention date. However, Honeywell was not the original inventor. Rather, Honeywell had copied its working model from one created by a Russian agency (in Russia, but under contract with Honeywell). Honeywell engineers continued to work on the project as they moved toward commercialization. However, by the time that Honeywell began to commercially use or publicize the invention, Solvay had already independently invented the method and filed for patent protection.
The question on appeal is whether any of the novelty provisions of Section 102 render Solvay’s patent claims invalid. The two primary statutory candidates are 35 U.S.C. § 102(a) and § 102(g)(2).
A patent claim is invalid under Section 102(a) if the invention was “known or used by others” in the US prior to the patentee’s date of invention. If the statute is construed according to the plain meaning of its terms, then Honeywell wins and the patent is invalid. Several US-based individuals at Honeywell knew of the invention prior to Solvay’s invention date – seemingly satisfying the “known or used by others” in the US requirement of the statute. Unfortunately for Honeywell, courts require that the prior knowledge or use of the invention be somehow public. In this case, Honeywell had kept its work in the US confidential. Therefore, Honeywell’s prior knowledge and use of the invention is insufficient to invalidate the asserted claims under Section 102(a). Many accused infringers (and others) have argued that the law should provide a prior-user defense for situations such as this one. That defense does not exist except for the limited (now severely limited) case of business method patents.
As I mentioned, Section 102(g)(2) creates a prior-inventor defense, not a prior-user defense. The original inventor was the Russian agency operating in Russia. That invention cannot satisfy the elements of the statute because Section 102(g)(2) requires that the prior invention be made in the US. For its part, Honeywell is not a prior inventor because it simply copied the work of the Russian agency. Thus, the patent skates-by Section 102(g)(2) as well.
Not the First Inventor: Honeywell argued strongly that it does not make sense for Solvay to have a patent since it was clearly not the first inventor and, if you follow the chain of title, the prior invention had never been abandoned, suppressed, or concealed. Although seemingly sympathetic to Honeywell’s policy argument, the appellate court decided that it was bound by the statute.
Whether this holding ignores the realities of globalization and outsourcing by modern-day research companies, as Honeywell contended at oral argument, is not the question before us. The question before us is whether, under the undisputed facts, Honeywell qualifies as “another inventor” under 35 U.S.C. § 102(g)(2). Because Honeywell did not itself conceive the RSCAC process of making HFC-245fa, under 35 U.S.C. § 102(g)(2), as this court has construed the statute, it is not “another inventor” of the subject matter claimed in the ‘817 patent.
Although perhaps only shorthand, it is interesting that the court focuses on the question of whether the corporate entity – Honeywell – was the inventor. Although some proposed amendments to the Patent Act would lead toward corporate inventorship, the current law is that all inventors must be real persons.
In October of 2005, a third party (Jemo-Pharm) submitted a request for ex parte re-examination of Natures Remedies patented claim covering an herbal composition of guarana, damiana, and yerbe-mate claimed to cause weight loss. More than one year before Remedies’ filing date, an anticipating composition had been submitted to a Danish regulatory organization as part of a request for approval for clinical testing. (The decision is unclear, but implies that the submission was done by Remedies).
A Danish official provided testimony that the submission was a public record and was open for inspection since its date of submission. Remedies’ expert, however, argued that a Danish trade-secrecy law would have prevented such inspection. The BPAI accepted the open-access line of argument and found the submission invalidating prior art under 35 USC 102(b). The patentee appealed – arguing that the official submission was not sufficiently publicly accessible to be considered 102(b) prior art.
Because [the Danish Official’s] declaration established a prima facie case of public availability, the onus was on Remedies to demonstrate that the [regulatory submission] was not accessible to interested members of the public. Remedies, however, failed to carry its burden.
Under the Danish trade-secrecy law, the regulatory submissions are kept secret when they are of “material importance” to a company’s “economy.” It appears that Remedies could have proven its case but failed to provide evidence to the Board.
Attorney argument, however, cannot take the place of record evidence. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Here, the evidence of record does not establish that Remedies intended to keep the formulation of the Medi-Tab capsule confidential until after the study had been completed and a patent application had been filed.
102(b) looks at prior art that was “described in a printed publication” more than one year prior to the date of application for the US patent. Implicit within ‘publication’ is a notion that the material is publicly accessible. Notably, however, there is generally no need to prove that the material was actually accessed. Thus, in this case, there is no discussion of whether the regulatory submission was ever seen by anyone.
Reexam No. 90/007,785 (look it up in PAIR).
In some ways, this case is simply an extension of the Pivonka v. Axelrod case where the Federal Circuit held that the applicant has waived arguments by failing to present them at the Board of Patent Appeals.
While Bilski requires that process claims recite machine or transformation limitations that “impose meaningful limits on the claim’s scope,” such limitations need not themselves be new or nonobvious. In other words, “meaningful limits” is not to be equated with “nonobvious limits,” and the “meaningful limits” requirement may be satisfied – insofar as Section 101 patent-eligibility is concerned – by machine or transformation limitations which, standing alone, are old or obvious. Once Section 101 patent-eligibility is found to be present, novelty and nonobviousness of the claim as a whole may be satisfied by a novel and nonobvious algorithm in combination with the structural machine or transformation recitations.
This difference is seen in the Federal Circuit’s discussion of Abele.
As Chief Judge Michel points out in Bilski, in Abele the CCPA found a broad method claim reciting only data manipulation steps (calculating the difference between two values and displaying the value of the difference) to be patent-ineligible, but found a dependent claim adding only that the data is “X-ray attenuation data produced in a two dimensional field by a computed tomography scanner” to be patent-eligible, because the data represented physical and tangible objects.
BPAI: Under §102(e), Provisional Application Considered Prior Art as of its Filing Date.
This holding is in tension with the controlling precedent of In re Wertheim, 646 F.2d 527 (CCPA 1981). In Wertheim, the CCPA held that for a continuation-in-part application, the parent’s filing date may serve as a §102(e) date, but only if the parent contains full §§120 and 112 support for the disclosure.
In this case the Examiner found that the Narayanan provisional application fully supported the eventual publication – and thus that the 102(e) date for narayanan was the filing date of the provisional. The applicant was unable to disprove these findings and the BPAI affirmed the rejection.
Perhaps the most important portion of this case relates to the notion that novelty and nonobviousness are separate and distinct inquiries. And, that a patent may be found anticipated yet nonobvious.
On summary judgment, the district court Cohesive’s HPLC patent might be obvious, but certainly was not anticipated. Water appealed — arguing that the judgment was logically incorrect if anticipation truly is the “epitome of obviousness.” On appeal, however, the Federal Circuit confirmed that novelty and obviousness are separate and distinct — one does not necessarily follow the other.
“While it is commonly understood that prior art references that anticipate a claim will usually render that claim obvious, it is not necessarily true that a verdict of nonobviousness forecloses anticipation. The tests for anticipation and obviousness are different.
The court suggested two circumstances where an anticipated claim might still be nonobvious. First, secondary considerations of nonobviousness may exist that are not relevant in an anticipation claim. Second, although inherent elements apply in an anticipation, inherency is generally not applicable to nonobviousness.
Anticipation still gets to a jury even when the defense has a credible obviousness argument.
In some ways, the ‘common sense’ approach of KSR encourages this decision. While anticipation may still be a formal construct, obviousness should focus on what really would have been obvious at the time of the invention.
Professor Ochoa (Santa Clara) reminded me about the European rule that does not allow “secret” prior art to be used in obviousness (inventive step) analysis. If the US so modified its rules, perhaps the distinction between obviousness and anticipation would begin to ring true.
CSIRO is a nonpractising patent holder. It is also an arm of the Australian government. After winning an infringement suit against Buffalo Tech, CSIRO was awarded permanent injunctive relief to protect its spread spectrum WLAN technology.
On appeal, more than a half-dozen amici filed briefs arguing for and against injunctive relief in this situation. On appeal, however, the Federal Circuit vacated the infringement holding – leaving the discussion of injunctive relief for another day. The vacatur came from the district court’s pre-KSR strict requirement for a motivation to combine references.
Here, CSIRO changed its claim limitation from “frequencies in excess of 10 GHz” to simply “radio frequencies.” On appeal, the Federal Circuit affirmed the lower court’s factual finding that the amendment did not impermissibly add new matter. (No clear error). In particular, neither party suggested a technical distinction between handling lower frequencies. Further, the court found that the original specification was not limited to frequencies in excess of 10 GHz.
On remand, the lower court will reevaluate obviousness.


text:
DERNOWSEK, JANAINA A.; PEREIRA, MILENA C.; FORNARI, THAIS A.; MACEDO, CLAUDIA; ASSIS, AMANDA F.; DONATE, PAULA B.; BOMBONATO-PRADO, KARINA F.; PASSOS-BUENO, MARIA RITA; PASSOS, GERALDO A.. Posttranscriptional Interaction Between miR-450a-5p and miR-28-5p and STAT1 mRNA Triggers Osteoblastic Differentiation of Human Mesenchymal Stem Cells. Journal of Cellular Biochemistry, v. 118, n. 11, p. 4045-4062, NOV 2017. Web of Science Citations: 6.
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PASSOS‚ G.A.S.; PROENÇA PICANÇO‚ V.. Frequency of the δ< i> ccr 5 deletion allele in the urban Brazilian population. Immunology Letters, v. 61, n. 2, p. 205-207, 1998.
SANDRIN-GARCIA‚ P.; MACEDO‚ C.; MARTELLI‚ LR; RAMOS‚ ES; GUION-ALMEIDA‚ ML; RICHIERI-COSTA‚ A.; PASSOS‚ GAS. Recurrent 22q11. 2 deletion in a sibship suggestive of parental germline mosaicism in velocardiofacial syndrome. Clinical Genetics, v. 61, n. 5, p. 380-383, 2002.
MACEDO‚ C.; MORAES JUNTA‚ C.; PASSOS‚ G.A.S.. Onset of T-cell receptor V [beta] 8.1 and D [beta] 2.1 V (D) J recombination during thymus development of inbred mouse strains. Immunology Letters, v. 69, n. 3, p. 371-373, 1999.
DA SILVA‚ M.I.; PASSOS‚ G.A.S.. The human immunoglobulin variable lambda locus IGLV9 gene is a monomorphic marker in the urban Brazilian population. Immunology Letters, v. 69, n. 3, p. 369-370, 1999.
MORAES JUNTA‚ C.; PASSOS‚ G.A.S.. Genomic EcoRI polymorphism and cosmid sequencing reveal an insertion/deletion and a new IGLV5 allele in the human immunoglobulin lambda variable locus (22q11. 2/IGLV). IMMUNOGENETICS, v. 55, n. 1, p. 10-15, 2003.

matches: v. v. v. v. v. v. v.