Business Litigation Perspectives - Insights & Commentary on Business Legal Issues

Becker & Poliakoff announced that Richard C. Litman, a patent attorney and founding shareholder of the Litman Law Firm based in Manassas, Virginia has joined Becker & Poliakoff. With more than thirty years in legal practice, Mr. Litman joins Becker & Poliakoff along with five other registered patent attorneys, six registered patent agents, a trademark attorney and a staff of twenty. He will chair the firm’s Intellectual Property & Emerging Technologies Practice Group, and serve as the Managing Shareholder of the firm’s new office in Northern Virginia.

Based near the U.S. Patent and Trademark Office (USPTO) in Virginia, the new Becker & Poliakoff practice also includes former USPTO Director Richard J. Apley who leads the team of patent practitioners, and patent searchers, patent illustrators, technical specialists and client service managers. The new practice group represents universities, research centers, government programs, inventors, and emerging companies around the world and domestically which are developing and protecting inventions of all types, including energy, water and environmental technology, information and communications technology, and life sciences, medical and biotechnology.

Gary Rosen, the firm's Managing Shareholder and an IP litigation attorney noted that the addition of the Litman firm further expands the firm's capacity to handled complex IP litigation.  

"Richard's practice complements our existing practices and accelerates our efforts to grow and diversify our service offerings to clients," said Gary C. Rosen, Managing Shareholder of the firm. "Richard and his team have already begun working with attorneys in our New York and Florida offices on the formation and structuring of technology business entities, licensing and commercial contracting matters, mergers and acquisitions, international IP protection, and technology development and commercialization.

Litman, a 1979 cum laude graduate of the University of Miami School of Law, holds two advanced law degrees, a Masters in Forensic Sciences and a LL.M. in Patent and Trade Regulation Law obtained while serving as the Food and Drug Law Institute Fellow. He is a Registered Patent & Trademark Attorney and a member of the Florida, Virginia, D.C., Maryland and Pennsylvania bars. He also serves as chairman of a commercial bank in Northern Virginia.

Who likes being criticized? I don't think anybody likes it, but people have a right to their opinions - that is unless you are a patient of a medical professional who requires you to sign a contract agreeing that you won't criticize them.

That's what Robert Lee found out when he went to see Dr. Stacy Makhnevich for a toothache.  Lee developed an infection and severe toothache so he went to see Dr. Makhnevich.  Before providing treatment, Dr. Makhnevich required him to sign an agreement. 

The contract provided that Lee would not post any negative comments about her and further provided that she owned the copyright to any of these negative posts.  In exchange, the agreement provided that Dr. Makhnevich would not evade federal patient privacy rights.  While Lee claims he questioned the terms of the contract, he signed it anyway because he was in pain and needed treatment.

Several months later, Lee discovered that he had been overcharged by Dr. Makhnevich by over $4,000, that she provided records to the wrong insurance company, and then refused to provide him with copies so he could correct the mistake.

Being completely frustrated, Lee posted his complaints on the Internet telling readers to "avoid at all cost! scamming their customers!"  In response, Dr. Makhnevich demanded that he remove the posts and began fining him for infringing on her protected copyright.

As a result, Lee filed suit arguing that the contract was unethical, invalid, and illegal.  Within hours, Medical Justice Services, Inc., the company that created the form, retired it.  Dr. Jeffrey Segal, who founded Medical Justice Services, added that "we probably should have retired the agreement earlier but today's the day we did it. 

Although I have not see the form, it seems completely absurd.  First, doctors are required by HIPPA to keep medical information private regardless of whether the patient agrees not to post negative comments.  Second, patients are entitled to free speech and the use of such postings is completely permissible under the Copyright Act.

Personally, I think it makes more sense to do good work and to keep your patients happy, rather than having them sign a form agreeing not to post negative comments about you on the Internet.  Further, the fact that the contract was retired within hours of the lawsuit being filed speaks volumes about how Medical Services, Inc. views their form.  Apparently, it's not worth the paper it was written on.

One of the most maddening dilemmas for employers involves missed work. Employee absenteeism translates to lost productivity and inefficiency.  In extreme cases, missed work can lead to employee terminations and legal challenges.

To add a touch of humor to this frustrating problem for employers, CareerBuilder.com just released its annual list of the most unusual excuses for calling in sick. Here they are:  

1. Employee's 12-year-old daughter stole his car and he had no other way to work. Employee didn't want to report it to the police.

2. Employee said bats got in her hair.

3. Employee said a refrigerator fell on him.

4. Employee was in line at a coffee shop when a truck carrying flour backed up and dumped the flour into her convertible.

5. Employee said a deer bit him during hunting season.

6. Employee ate too much at a party.

7. Employee fell out of bed and broke his nose.

8. Employee got a cold from a puppy.

9. Employee's child stuck a mint up his nose and had to go to the ER to remove it.

10. Employee hurt his back chasing a beaver.

11. Employee got his toe caught in a vent cover.

12. Employee had a headache after going to too many garage sales.

13. Employee's brother-in-law was kidnapped by a drug cartel while in Mexico.

14. Employee drank anti-freeze by mistake and had to go to the hospital.

15. Employee was at a bowling alley and a bucket filled with water crashed through the ceiling and hit her on the head.

Thanks to Eric Meyer and theemployerhandbook.com for the list!

It looks like the Securities and Exchange Commission is considering legal action against Standard & Poor for its rating of a mortgage debt offering.  Last week, it gave notice to S&P of its investigation and the intended litigation.  

If the SEC does charge S&P with violating securities laws, it would be a first.  The SEC has never brought a federal enforcement action against any major credit rating agency.

The SEC's issue against S&P stems from a 2007 collateralized debt offering ("CDO").  CDOs are securities that contain underlying mortgage loans.  Mortgage-backed securities are created when a company buys a bunch of mortgages from a lender and then uses the monthly mortgage payments as the revenue stream to pay investors.  

A CDO usually gains in value if debtors repay their mortgages.  But, if a default occurs, CDOs lose their value.  Depreciated CDOs have been blamed for contributing to the current financial crisis.

S&P was not generally the maker of mortgage-backed security deals.  However, the AAA ratings it placed on high-risk mortgage deals were instrumental to the banks' abilities to sell them to investors.  Although S&P made huge profits placing ratings on mortgage securities, it failed to provide any assurances regarding the accuracy of its ratings.

S&P is also at the center of a Justice Department investigation into whether it put business interests ahead of its duty to accurately rate deals.  Additionally, S&P has been under scrutiny since August, when it downgraded its assessment of the long-term credit of the United States. 

New SEC rules and regulations require rating agencies to substantiate how they determine each rating.  Thus far, S&P is cooperating with the SEC investigation.  But, only time will tell.   

Can your business be sued for not accommodating an individual who is overweight?  What about if that individual is obese?

Generally, the answer is "no."  There are no federal laws which specifically prohibit obesity discrimination, but some individuals have argued that their weight can be considered a disability for purposes of the Americans with Disabilities Act (ADA) or the Rehabilitation Act of 1973.

Recently, Martin Kessman has filed suit against White Castleto test the limits of the ADA because he cannot wedge himself into a seat at his local White Castle.  Kessman, who is approximately 290 pounds and admits to being a "big guy," is claiming that his local White Castle is in violation of the ADA because its seating cannot accommodate an individual of his size.  Kessman further claims that he smacked his knee into a metal post while trying to wedge himself into the stationary seating.

The ADA prohibits discrimination based on a disability in the areas of employment, public services, public accommodations, and services operated by private entities, transportation, and telecommunications.  To prevail in an ADA discrimination claim, a plaintiff must show, among other things, that he/she has a disability within the meaning of the ADA.

The ADA regulations which address obesity and whether it can be an impairment that qualifies as a disability states that only in rare circumstances will obesity be considered a disability.  Further, the EEOC states that being overweight, in and of itself, generally is not an impairment.  However, severe obesity, which has been defined as body weight more than 100% over the norm is clearly an impairment. 

So, what does this all mean for Mr. Kessman?  It is unlikely that he is going to prevail, but he is not alone is his efforts.  Other notable decisions include: Cook v. Rhode Island Department of Mental Health, Retardation, and Hospitals, Francis v. City of Meriden, and EEOC v. Watkins.

Last week, I wrote about these Internet terrorists who engage in elaborate e-mail scams to steal your money.  In particular, I wrote about my own personal experience and how one of these scam artists solicited my law firm under the guise of attempting to collect a debt from another U.S. company. Now, it seems that there may be some justice after all.

Ironically, as I posted my article, Emmanuel Ekhator, a Nigerian man was being handed over to U.S. Marshalls after being extradited to the U.S.  Ekhator was accused of defrauding dozens of lawyers and law firms of more than $31 million dollars. 

Arrested in Benin City Nigeria by the country's Economic and Financial Crimes Commission, it appears that Nigeria is finally cracking down on these types of Internet and bank fraud crimes.  They are sending a message that Nigeria is no longer safe for them and that if caught, they will face prosecution.

While there is no telling whether the e-mail I received from "Daniel Johnson" was part of this crime ring, it does have a striking similarity to my story.  Fortunately, I did not fall for the scam, but according to federal prosecutors, more than 80 lawyers and law firms were not so lucky.

Nigeria has tried to police these scammers, but corruption and weak law enforcement have made that exceedingly difficult.  The best way to stop these fraudsters is to not fall for their scams in the first place.  Be smart and don't be a victim.

Have you seen the Old Navy commericals for the "Super C-U-T-E" campaign and thought the actress in the commercial was either Kim Kardashian or resembled her? Well, that's what Ms. Kardashian thinks and she has filed a lawsuit in a California federal court against Gap claiming that it structured its ad to take advantage of Kim's persona and profit themselves and not her.

The lawsuit asserts that Kim Kardashian "has invested substantial time, energy, finances and entrepreneurial effort in developing her considerable professional and commercial achievements and success, as well as in developing her popularity, fame, and prominence in the public eye."  The lawsuit further suggests that somehow the Old Navy campaign undermines that.

Well, I have seen the ad, and can tell you that the actress in the ad, Melissa Molinaro does kind of look like Kim Kardashian.  But, what I find perhaps the most intriguing is that Molinaro is dating Kim Kardashian's ex-boyfriend, Reggie Bush and that she is flattered that people think she resembles Kim.  Ironically, I think Molinaro will stand to benefit the most from all this publicity.

Although there are many days that I dread getting behind the wheel of my car, I appreciate the right to drive.  Admittedly, I am not a good driver, even though I have been licensed for almost thirty years.  Nonetheless, I enjoy the privilege and freedom of being able to drive anywhere in the world.  Anywhere that is, except in Saudi Arabia.  You see, I am woman.  And, that fact alone precludes me from getting behind the wheel in the ultraconservative monarchy.      

Though there is no law that makes it illegal for women to drive in Saudi Arabia, Islamic edicts have been interpreted as an outright ban on female drivers.  On Friday, that ban was challenged by dozens of defiant Saudi women.  It was an unusual, grass’ roots protest, fueled by the “Women2Drive” campaign and further ignited by Twitter and Facebook.    

The rally was not meant to be a mass driving effort by Saudi women.  Instead, women, who hold valid licenses from other countries, were encouraged to run routine household errands in order to highlight the fact that driving is a normal undertaking that should be enjoyed by both sexes. The number of Saudi women who participated in the protest against driving was small and few incidents of confrontations with the authorities were reported.   

But, the show of defiance is a small step towards equal rights for women in a nation where women have little political voice.  Kudos to social media for providing Saudi women with a platform to effectuate change!  Hmm, I just may open a Twitter account, after-all.