How should an employer react when an employee is accused of committing a crime? How can an employer protect its rights while shielding the business from legal scrutiny? Should you talk to the accused employee about the accusations?
Answers to these and other questions are the subject of an article by DiMuroGinsberg partner, Andrea Moseley. The article entitled, “My Employee Is Accused of a Work Related Crime – What Should I Do?” appears in the online employment law newsletter, HR Hero, by BLR publications. As Andrea’s article explains, properly dealing with an employee who has been accused of criminal behavior will depend upon the specific circumstances.
Where an employee is formally accused of wrongdoing and is represented by counsel, Andrea advises that an employer should not discuss the matter without first speaking with the employee’s attorney. Additionally, in situations where an employer has received a request for records or a subpoena, it usually is advisable for the employer to retain its own counsel to evaluate the propriety of the records request, especially where the request may be invasive, expensive or burdensome to comply with.
As has been widely publicized, the Supreme Court recently affirmed that the rules governing where a patent infringement case may be brought against corporate defendants are distinct from those involving other causes of action in the federal system. Specifically, the Court held that in patent cases, the relevant statute, 28 U.S.C. § 1400(b), mandates that the case be brought where the accused corporate infringer is incorporated or has committed acts of infringement and has a regular and established place of business, whereas in other federal cases, venue is proper wherever the corporation is subject to personal jurisdiction, 28 U.S.C. § 1391(c). TC Heartland LLC v. Kraft Foods Group Brands, LLC, ___ U.S. ___, 137 S. Ct. 1514, 1516-17 (2017). The Court affirmed that its 1957 decision in Fourco Glass Co. v. Transmirra Prod. Corp., 353 U.S. 222, 226 (1957) still controls on the issue of venue in patent cases, and held that the ruling by the Court of Appeals for the Federal Circuit (“Federal Circuit”) that Fourco had been overruled by intervening amendments to the venue statute – a rule that had controlled in patent infringement cases for 27 years – was incorrect. Id.
The impact of the TC Heartland decision is, on the one hand, straightforward, but not so much on the other. It is now clear that for purposes of patent infringement, a corporation “resides” only where it is incorporated. TC Heartland, 137 S. Ct. at 1517. At the same time, the rule still stands that a defendant can waive its challenge to venue, and a venue challenge must generally be made at the pleadings stage. Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979); Fed. R. Civ. P. 12(b), 12(h)(1). Accordingly, must cases where venue was proper under the now-rejected Federal Circuit rule be transferred in light of TC Heartland’s change of the law? And, what are the parameters of a “regular and established place of business” under TC Heartland? An early decision from the Eastern District of Virginia (“EDVA”), one of the first decisions applying TC Heartland, addresses both these questions.
Cobalt Boats, LLC v. Sea Ray Boats, Inc., No. 2:15cv21, 2017 WL 2556679 (E.D. Va. Jun. 7, 2017) involved a litigation filed in 2015 under the Federal Circuit’s interpretation that venue in a patent infringement case is proper in any district where the corporation is subject to personal jurisdiction. The defendants had initially conceded that venue was proper under what they believed was controlling law, but had moved to transfer to a more convenient forum. Id. at *1. Defendants’ motion was denied, and the parties moved forward with the litigation, including claim construction proceedings, a motion for summary judgment, and motions in limine. Id. Days after the final pretrial conference, the TC Heartland decision issued and defendants brought a renewed motion to transfer. Id.
The EDVA first found that defendants’ delay in bringing the venue challenge was not excused as an exception that is available “when there has been an intervening change in the law recognizing an issue that was not previously available.” See Holland v. Big River Minerals Corp., 181 F.3d 597, 605-06 (4th Cir. 1999). The EDVA found that defendants’ “assumption that Fourco was no longer good law was reasonable but wrong,” and the delay was therefore not excused because the law technically had not changed. Id. at *2-*3. Notably, the EDVA also found that the argument of the second defendant failed because it wanted to remain in the same jurisdiction as the other defendant, and had therefore waived its right to challenge venue. Id. at *4. In response to alternative theories of proper venue put forth by the plaintiff, the EDVA left open the possibility that proper venue could be established under TC Heartland by showing, for example, that salespeople in the district or activities such as warehousing by a related entity (e.g., a subsidiary or sister entity) related to the infringement could constitute a regular and established place of business. Id. at *4. The EDVA’s decision was upheld by the Federal Circuit two days later. See In Re Sea Ray Boats, Inc., 2017 WL 2577399, at *1 (Fed. Cir. Jun. 9, 2017).
From this early decision, we now know two things. First, transfer will not necessarily be automatic, despite TC Heartland’s seeming reversal of law that has been followed for 27 years, at least in cases where substantial preparation for trial has taken place. Second, the boundaries of what constitutes a “regular and established place of business” remain undefined, and must be determined under the facts of each case. What does seem clear is that “regular and established places of business” are not just headquarters. Thus, venue in jurisdictions with a large concentration of tech centers, such as Northern Virginia, seems likely to be proper in a large number of cases.
Cecil Key is a member of DiMuroGinsberg’s IP Group, along with Jay Kesan and Teresa Summers. For more information about this topic or any Intellectual Property matter, you may contact Cecil at firstname.lastname@example.org.
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“FMLA-ADA Interplay for Employees Returning From FMLA Leave” was the subject of a presentation given by DiMuroGinsberg partner, Jonathan R. Mook, as part of a Strafford webinar, “Navigating Return to Work and Fitness for Duty Certification Challenges Under the FMLA and ADA,” held on November 22, 2016. In his presentation, Jonathan discussed both the FMLA and ADA requirements that employers must follow in dealing with employees who are returning to work after taking leave for treatment of a medical condition.
Jonathan specifically addressed the reasonable accommodations that an employer may need to provide to disabled employees who have taken leave, including (1) additional leave for medical treatment; (2) workplace accommodations, such as changes in the work environment or modified work schedules; and (3) reassignment to a vacant position. Jonathan also addressed the requirements that employers may place upon employees seeking to return from leave, such as providing a fitness for duty certification that confirms the employee can perform the essential functions of the job in a safe manner.
If you would like to obtain a copy of Jonathan’s presentation, please contact him at email@example.com.
DiMuroGinsberg is pleased to announce that Jonathan Mook will be presenting at the 21st Annual Advanced Employment Issues Symposium, one of the nation’s leading employment law conference, November 9-11, 2016 in Las Vegas.
Jonathan will be presenting a session on ADA accessibility titled, ADA Accessibility: Current Legal Risks and Practical Solutions for Ensuring that Disabled Applicants and Employees Have Adequate Opportunity to ‘Participate in the Workplace,’ with Director of Assistive Technology, Joseph Martini, from a Perkins School for the Blind. This session will help attendees stay ahead of compliance obligations set by the EEOC and ADA, and maintain a safe and inclusive workplace for all employees.
If you aren’t already familiar with AEIS, it’s a multi-track event, which gives attendees a wide variety of options for enhancing their learning experience. This year’s tracks will focus on four distinct and important areas:
- Emerging Legal & Compliance Concerns;
- Red-Hot Regulatory Updates;
- Security and Risk Management; and
- Data Analytics and Metrics.
We hope you’ll join Jonathan for this engaging and informative event that’s designed to help you to enhance your advanced practitioner skill set. We are pleased to offer an exclusive discount on conference registration for you. Just use coupon code A16SPEAK, for a $100 discount off this high-level event. Visit the AEIS website to register.
The DC Wharton Summit is the premier event for entrepreneurs, innovators and key leaders in DC. Register for Kendall’s workshop, “Can New SEC Regulations Boost Your Startup Funding?”
For companies that need funding (and who doesn’t?) the JOBS Act and crowdfunding seem like the magic answer to many capital raising problems. Are these new securities laws and SEC regulations right for your company? And if so, how can your company utilize these groundbreaking capital raising regulations safely, legally, effectively and affordably?
In Kendall’s workshop, you will learn the nuts and bolts about Regulation A+ which allows companies to raise up to $50 million in a “Mini-IPO” online, with anyone (not just rich and well-connected folks) being allowed to invest. You will get a sneak preview of the new “equity crowdfunding” law, Title III of the JOBS Act, that goes into effect on May 16, 2016 and will allow start-ups to raise up to $1 million online through a “funding portal” that sells stock in your private company to the general public. You will also hear about “accredited investor crowdfunding” where your company can use online methods and marketing to raise money from wealthy investors through Section 506(c) – Title II of the JOBS Act.
Kendall, who was named one of the top crowdfunding and JOBS Act lawyers in the country by Forbes Magazine, will also participate in a panel on crowdfunding. “Crowdfunding: Latest Developments and Pros and Cons” will be held at 1:15pm on Day 2 of the conference.
Register for the Wharton DC Summit here. As a friend of DiMuroGinsberg, you are eligible for a $200.00 discount on the summit by signing up under the “Strategic Partnership” category and listing Kendall’s name in the “Special Instructions” box.
For more information on the Summit or Kendall’s practice areas, contact him at firstname.lastname@example.org.
DiMuroGinsberg attorney, Andrea Moseley to discuss police shootings and participate in a panel on Criminal Defense in America in Demark on April 13.
Andrea focuses her practice on defending individuals and companies accused of white collar crimes, financial fraud, copyright and trademark Fraud, RICO matters, internet crimes, money laundering, international monetary offenses, importation and distribution of narcotics and professional liability and ethics. She has represented hundreds of clients at trials in both federal and state criminal cases and has won acquittals on charges of murder, grand larceny, D.W.I., indecent exposure, assault on a police officer, drug distribution and possession, immigration fraud, and various sex offenses.
“2016 Federal Employment Law Outlook” was the subject of a webinar presentation by DiMuroGinsberg partner, Jonathan R. Mook, on January 5, 2016 for Business & Legal Resources. Jonathan’s presentation addressed such key federal agency initiatives as:
- The DOL’s proposed new overtime regulations;
- The EEOC’s strategic enforcement plan focusing on criminal background checks, protections for LGBT employees, and the expansive definition of disability under the ADA;
- The steps the OFCCP is taking (1) to require government contractors to publicly report labor and employment law violations, (2) to eliminate pay disparity for women and minorities, and (3) to require the hiring of disabled persons and veterans; and
- Recent NLRB actions to significantly reduce the timeframe for union elections, to challenge employer social media policies, and to expand the scope of joint employer liability.
Given the impact these agency initiatives will have on employers, it is critical that employers keep abreast of federal agency actions throughout 2016. If you would like to receive a copy of Jonathan’s presentation, please contact him at email@example.com.
The Advanced Employment Issues Symposium (AEIS) is a premier national employment law conference. Jonathan will present:
- a workshop on “ADA/FMLA Audit Toolbox: Solutions to Leave Administration and Accommodation Changes,”
- an overview of anticipated EEOC regulatory and enforcement activity at the “Opening Keynote: Employment Law Outlook for 2015 and Beyond,” and
- a seminar on “Depression, Bipolar Disorder, ADHD and Learning Disabilities: ADA Accommodations and Other Challenges.”
The AEIS takes place on 11/5/14 – 11/17/14 at the Paris Las Vegas Hotel and Casino in Las Vegas. For more details about the symposium and to register visit http://aeisonline.com/
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