Displaying 5 category results for January 2010.x

Washington domestic partnership law may complicate employee benefits

By Stacey Mark
January 22, 2010

Washington's domestic partnership law, which went into effect on December 3, 2009, provides that for all purposes, registered domestic partners must be treated the same as married spouses, unless doing so would conflict with state law.  "Registered domestic partners" include same-sex domestic partners, and also opposite-sex domestic partners, provided one of them is at least 62 years old.

For employers, this means that employment-related benefits must be extended to the registered domestic partners of employees on the same basis as spouses -- that is, unless the benefit is governed exclusively by federal law.  FMLA is one such law; ERISA is another.  This means that employers subject to FMLA and the corresponding state leave laws (the Washington Family Leave Act,  state pregnancy disability laws, and state military leave laws) cannot count against an employee's annual FMLA entitlement any leave that is covered by state law but not FMLA.  One such example is leave taken to care for a registered domestic partner or his/her family member with a serious health condition.  A complication resulting from that difference is that employers covered by the FLSA (federal wage and hour law) cannot make deductions for partial-day absences for leave that qualifies under state law but not under FMLA.   

Another area of conflict between state and federal law exists with respect to group health plans.  To the extent group health plans are regulated under state insurance law, which is the case when the plan is funded by insurance, the benefits must be made available to the registered domestic partners of employees on the same terms as they are made available to employees' spouses.  However, self-funded plans are governed exclusively by ERISA, under which there is no requirement to provide benefits to registered domestic partners.

In practice, administering benefits in light of these differences can be complicated.  Questions should be reviewed with employment counsel.

U.S. Supreme Court blocks Ninth Circuit plan to broadcast trials

By Lori Bauman
January 14, 2010

The "Proposition 8" gay marriage trial in San Francisco won't be broadcast after all, and neither will any other federal trial within the Ninth Circuit, at least for now. 

The U.S. Supreme Court extended its stay of an order allowing the broadcast on the ground that the Ninth Circuit Judicial Council hadn't followed established procedures in adopting a pilot program to allow cameras in federal courtrooms.  In a 5-4 decision, the majority concluded that the pilot program amounted to a change in the local rules without adequate opportunity for public notice and comment, in contravention of federal law.

See our earlier coverage here and here, and other law blog coverage here and here.

Lender beware: Court voids trust indenture with Tribal Corp.

By Rob Roy Smith
January 12, 2010

While the economy was humming in January 2008, the economic development agency of the Lac du Flambeau Band of Lake Superior Chippewa Indians sought to build a river boat hotel and casino.  To fund the project, a Tribal corporation issued bonds and entered into a Trust Indenture with Wells Fargo.  Unfortunately, the project has never gotten off the ground and the Tribal corporation now owes principal and interest on the $46,615,000 bond amount.  With the Tribal corporation unable to pay any additional principal and interest, Wells Fargo sued to enforce the Trust Indenture to allow the Court to appoint a receiver upon default.

Yesterday, the U.S. District Court in Wisconsin issued a decision and order in Wells Fargo Bank v. Lake of the Torches Economic Development Corporation, dismissing Wells Fargo's claims and stating the Trust Indenture is void ab initio (from the beginning) because the receivership amounts to a management contract under the Federal Indian Gaming Regulatory Act that should have been, but was not, approved by the National Indian Gaming Commission.  Because the Trust Indenture is void, the waiver of the Tribal corporation's immunity from suit contained within the agreement was also void.

This case could have a chilling effect on financing practices within Indian Country, despite the Tribe's stated intention to negotiate a solution.  At first blush, the Court's decision leaves banks and bondholders at the mercy of tribal businesses when projects fail to thrive economically.  But, upon closer inspection, the error here occurred in 2008 when Wells Fargo entered into the Trust Indenture for the Casino project without considering its implications under Federal Indian gaming laws.  Tribes and lenders must take care when structuring business arrangements to ensure that the agreed remedy upon default will not violate some other applicable Federal law. 

Broadcasting of federal court trials hits a snag

By Lori Bauman
January 11, 2010

The Ninth Circuit's plan to allow broadcasting of non-jury civil trials was curtailed today when the U.S. Supreme Court temporarily blocked an order to stream video of the California gay marriage trial both live to courthouses across the country, and on a delayed basis on You Tube.  Shortly before the start of trial in San Francisco on the constitutionality of the state's gay marriage ban, the Supreme Court ordered that the broadcast must be limited to rooms within the court house, and barred posting on You Tube.

The Supreme Court's order is in effect until Wednesday and is subject to "further consideration" by the Court.

See further coverage of the order here and here.  See our earlier post on the Ninth Circuit's experimental program to broadcast trials here.

Product marking – a word of caution to patentees

By Rick Boyd
January 5, 2010

Marking a product as patented serves a beneficial purpose:  it puts the public on notice of a patentee’s rights.  However, "false marking," which generally involves marking or advertising an unpatented article as patented with an intent to deceive the public, can stifle competition and increase consumer costs.  Section 292 of the Patent Act prohibits intentional false marking, provides penalties, and allows any person to sue for false marking on behalf of the federal government.

False marking occurs if a party continues to mark products as patented following expiration of a patent, or marks products that are not covered by the claims of an otherwise valid patent.  False marking can also include marking products as "Patent Pending" after an application for patent is abandoned, or after all claims covering a product are cancelled during patent prosecution.

For one hundred years, courts have treated each decision to falsely mark products as a single offense, without regard for the actual quantity of articles produced.  That changed last week when the U.S. Court of Appeals for the Federal Circuit, in The Forest Group, Inc. v. Bon Tool Co., held that the statutory penalty of "not more than $500" applies to each individual improperly-marked article.  For example, if a defendant sells 100 articles, each improperly marked, he is liable for 100 individual offenses, and 100 times the per-article penalty determined at trial.

Although the statute allows courts to set the per-article penalty at a fraction of a penny in the case of inexpensive, mass-produced goods, the Forest decision nonetheless greatly increases the potential penalties for false marking of mass-produced products.  Likewise, it potentially increases the incentives for opportunists, entitled by statute to 50% of any penalties awarded, to file lawsuits on behalf of the government.  In this new environment, patentees should exercise ever more heightened diligence to ensure their goods are properly marked at all times.