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Tech companies can’t escape antitrust liability for agreeing not to solicit competitors’ employees

Our colleagues at Employer Law Report have been following a case that considers antitrust issues as they relate to competition among high-tech employers. In re High-Tech Employee Antitrust Litigation will now proceed to trial. The case is an excellent reminder to businesses across industries. Though companies may be able to enter into agreements with their … Continue Reading

Another sunrise, another new beginning. New gTLDs delegated and set to launch; are you ready?

New to the delegation pool ICANN delegates new gTLDs daily, which keeps trademark owners on their toes. Since our last blog article, new gTLD delegations include: .gop .ryukya .yokohama .rest .saarland .consulting .vodka .haus .cooking .moe .rodeo .country .商城(xn--czru2d) – Chinese for “mall” .horse .fishing .vegas .miami .archi .black .ren .meet .sohu The most recent … Continue Reading

“You, you, and you: Panic. The rest of you: Come with me.” – It’s time for trademark owners to arm themselves against the dot’s new friends.

The Internet Corporation for Assigned Names and Numbers (ICANN) announced this week at ICANN 49 Singapore that the number of new generic top levels domains (gTLDs) that have been “delegated” — i.e., designated as ready for launch — now tops 175. Recently delegated gTLDs include: .london  .nyc .cologne  .trade  . 世界 (Chinese for “world/shijie”)  .bid … Continue Reading

Top 10 e-discovery developments and trends in 2013: Part 2

Following is Part 2 of my third annual list of the top 10 e-discovery developments and trends from the past year. Read Part 1. 6. “It is malpractice to not seek a 502(d) order from the court before you seek documents.” U.S. Magistrate Judge Andrew Peck began last year at Legal Tech providing his thoughts … Continue Reading

Top 10 e-discovery developments and trends in 2013: Part 1

Here is my third annual list of the top 10 e-discovery developments and trends from the past year. 1. The growth of Bring Your Own Device (BYOD) policies and work-related text messaging is creating litigation hold challenges. A Cisco survey found that 89% of companies are currently enabling employees to use their own electronic devices … Continue Reading

Dawn of a new Internet — mechanisms to protect your brand

Many people have not yet heard or may not understand, but the Internet will expand vastly and quickly beyond the familiar .com, .org, and .edu top level domain names. The Internet Corporation for Assigned Names and Numbers (ICANN) launched an initiative in 2008 to enable the introduction of new generic topic level domains (gTLDs). The … Continue Reading

Key e-discovery cases in November

Last month, Magistrate Judge David J. Waxse decided an issue that we likely will see more of in the age of big data. He rejected a defendant’s undue burden argument even though even though the “data warehouses” at issue contained over 100 terabytes of data and the production would take several months to develop a … Continue Reading

LabMD joins Wyndham in challenging FTC’s data privacy authority

Section 5 of the Federal Trade Commission Act — the Act that established the FTC in the first place — makes it unlawful to engage in “unfair methods of competition … and unfair or deceptive acts or practices…” Though the words seem simple enough, its application in today’s world is anything but simple, particularly when you talk about data privacy. Two companies — Wyndham Worldwide Corp. and LabMD Inc. — are publicly, and independently, challenging the FTC’s authority over their data security policies (and subsequent lapses). This post is a quick update about LabMD’s challenge. In August 2013, the FTC filed an administrative complaint against LabMD, alleging that it lacked appropriate data security and unreasonably exposed the health and personal data of its consumers. LabMD conducts clinical laboratory tests on patients and reports its finding to patients’ health care providers. In performing the needed tests, LabMD typically obtains personal information, including names, addresses, dates of birth, SSNs, bank account or credit card information, laboratory tests, test codes and results, diagnoses, clinical histories, and health insurance company names and policy numbers. LabMD possesses such data for approximately 1 million consumers. The FTC charged that LabMD “failed to provide reasonable and appropriate security for personal information on its computer networks.” Among other things, the complaint states that LabMD failed to: … Continue Reading

A Trans-Atlantic exploration of emerging privacy law and policy issues

This past summer, the University of Amsterdam launched a new, week-long Privacy Law and Policy Summer Course related to the Internet, electronic communications, and online and social media. Course faculty included European and U.S. academics, European regulators and the head of the global privacy law practice at an international law firm, among others. Course participants … Continue Reading

Who owns your website, software and other works of authorship?

Many businesses outsource work such as website creation, software development or other creative tasks, engaging the services of companies or individuals experienced in these fields. Some are surprised to learn, often the hard way, that paying someone to create your website, develop software or produce other works of authorship does not mean you own the … Continue Reading

Key e-discovery cases in August

In addition to the posting of the proposed discovery amendments to the Federal Rules of Civil Procedure for public comment, August was packed with a number of interesting e-discovery decisions. Here are my thoughts on key e-discovery cases decided last month, including another spoliation blockbuster from Judge Shira Scheindlin and rulings on e-discovery costs, search … Continue Reading

Subpoenas seeking identifying information and login data associated with email addresses did not violate First Amendment or privacy rights

A federal court in California has held that subpoenas served on Google and Yahoo! seeking the subscriber and usage information associated with 68 email addresses did not infringe on the subscribers’ First Amendment rights or their right to privacy. Chevron Corp v. Donziger, No. 12-mc-80237 (N.D. Cal. Aug. 22, 2013). The subpoenas also did not … Continue Reading

Implementing cloud strategies

As companies struggle with how to develop cloud strategies that are both cost effective and protect sensitive consumer and corporate data, the National Institute of Standards and Technology (NIST) can provide hands-on information to the private sector to help implement a reasonable cloud computing solution. Though NIST provides guidelines to the U.S. Government, the private … Continue Reading

Sanctions for spoliation of evidence

This article was published originally at InsideCounsel.com. The article is the final installment of a six-part series focusing on evidence spoliation. Read more here, here and here. Spoliation of evidence occurs when an individual or entity violates its duty to preserve relevant evidence. A finding of spoliation will often result in the imposition of sanctions and … Continue Reading

Court holds that employer did not have “possession, custody or control” of text messages sent or received on its employees’ personal cell phones

In an employment race discrimination case, a federal court recently held that the defendant-employer did not have “possession, custody, or control” over text messages sent or received by its employees on their personal cell phones. The court denied the plaintiff’s motion to compel the production of these text messages because there was no evidence that: … Continue Reading

Court denies employer’s access to social media posts in FLSA collective action and sends warning: If you want access to social media, come with both barrels loaded … leave the water gun at home

A federal court has denied a defendant-employer’s request that plaintiffs sift through and turn over all their social media posts made during their work hours in an FLSA collective action in which the plaintiffs claim their employer failed to give them meal breaks. How did that happen? I thought you’d never ask. By way of … Continue Reading

Failure to identify information as confidential or trade secret pursuant to requirements of non-disclosure agreement can preclude recovery for misappropriation under uniform trade secrets act

A recent decision from the Federal Circuit illustrates the perils of not following the requirements of a non-disclosure agreement (NDA) with respect to identifying information as confidential or trade secret. It is a good reminder that if you go to the trouble of preparing an NDA to protect your trade secrets, you need to follow … Continue Reading

Ohio federal court permits case alleging employer’s accessing of former employee’s personal emails to proceed

When we think about the issues that employers have been struggling with relating to employee use of personal mobile devices for work, thoughts of data security, trade secret protection, record retention, and even FLSA compliance immediately come to mind — or at least my mind. But, I bet you wouldn’t anticipate what allegedly happened in Lazette … Continue Reading

Consumer Financial Protection Bureau issues final international remittance transfer regulations

On April 30, 2013, the Consumer Financial Protection Bureau (CFPB) issued its final rule regarding international electronic remittance transfers (i.e., international transfers of money) pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act. The new rule will go into effect on Oct. 28, 2013. CFPB has stated that the final rule is meant … Continue Reading
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