<img src="//bat.bing.com/action/0?ti=5189112&amp;Ver=2" height="0" width="0" style="display:none; visibility: hidden;">

    The Lawletter Blog

    Anne B. Hemenway

    Recent Posts

    CIVIL PROCEDURE: COVID-19 Venue Issues and Relevant Practical Problems

    Posted by Anne B. Hemenway on Thu, Feb 18, 2021 @ 09:02 AM

    The Lawletter Vol 46 No 2         

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

                The COVID-19 pandemic has caused many state courts around the country to either close down during parts of 2020 and 2021 or dramatically curtail operations. In many jurisdictions, jury trials have been canceled or postponed for months. The pandemic has resulted in a plethora of federal court cases regarding requests by federal inmates to be released from federal custody and other court-related issues. See Fern L. Kletter, COVID-19 Related Litigation: Effect of Pandemic on Release from Federal Custody, 54 A.L.R. Fed. 3d art. 1 (2020 & Westlaw updated weekly).

                In a case of first impression in the Commonwealth of Virginia, Clarke v. Medical Facilities of America, Inc. , No. CL20-4379, 2020 Va. Cir. LEXIS 493 (Va. Cir. Ct. City of Norfolk Dec. 30, 2020), the court reviewed whether pandemic-related issues were material to a venue dispute. In that case, defendants in a wrongful death action sought to transfer venue from the circuit court in the City of Norfolk, one of the largest cities in Virginia, to a small rural circuit court closer to the rehabilitation center where the plaintiff decedent had been treated.

    Read More

    Topics: Anne B. Hemenway, COVID-19, court venue issues, too speculative, pandemic's disparate impact, relevant practical problems

    CONTRACTS:  Contract Excuses and the COVID-19 Pandemic

    Posted by Anne B. Hemenway on Wed, Jun 17, 2020 @ 11:06 AM

    Anne Hemenway, Senior Attorney, National Legal Research Group

         The economic fallout from the COVID-19 pandemic and the sudden and worldwide shuttering of large and small businesses may be felt for a long time.  One of the resulting issues is the applicability of a force majeure clause, or common-law impossibility, frustration of purpose, or commercial impracticability excuses for contract performance and obligations. Force majeure clauses come into effect when events occurring beyond the control of the parties prevent performance of contract obligations. Some contracts include specific force majeure events that will excuse performance at this time, such as a pandemic (the World Health Organization declared a pandemic on March 11, 2020) or when governmental or administrative action is taken that disrupts or precludes performance under a contract.

    Read More

    Topics: contracts, COVID-19, force majeure clause, frustration of purpose, excuse for performance

    PATENTS: A Federal Agency Is Not a "Person" for Purposes of Review of the Validity of a Patent Under the Leahy-Smith Act

    Posted by Anne B. Hemenway on Wed, Dec 18, 2019 @ 10:12 AM

    The Lawletter Vol 44 No 6

    Anne Hemenway—Senior Attorney, National Legal Research Group

                In Return Mail, Inc. v. USPS, 139 S. Ct. 1853 (2019), the U.S. Supreme Court held that a federal agency is not considered a "person" for purposes of seeking review of the validity of a patent under the Leahy-Smith America Invents Act of 2011 ("AIA"), 35 U.S.C. §§ 1 et seq.  The AIA, enacted on September 16, 2011, changed the patent system from a first-to-invent to a first-inventor-to-file system.  The transition to a first-to-file system took place over a period of approximately 18 months.

                The AIA also created the Patent Trial and Appeal Board and established three types of administrative review proceedings before the Board.  See 35 U.S.C. § 6.  The reviews include an "inter partes review," a "post-grant review," and a "covered-business-method" ("CBM") review.  See id. §§ 311, 321.

    Read More

    Topics: Anne B. Hemenway, patents, Leahy-Smith Act, first-inventor-to-file system

    FAMILY LAW: Admissibility of GPS Surveillance Data in Civil Cases

    Posted by Anne B. Hemenway on Fri, Jan 18, 2019 @ 09:01 AM

    The Lawletter Vol 44 No 1

     

    Anne Hemenway—Senior Attorney, National Legal Research Group

     

              When a spouse places a Global Positioning Systems ("GPS") device in the other spouse's vehicle without consent to monitor that spouse's movements and position around town, the admissibility of the GPS data in the divorce trial is likely to be challenged. In United States v. Jones, 565 U.S. 400 (2012), the United States Supreme Court held that a GPS tracing device is a "search" under the Fourth Amendment to the United States Constitution, and absent a warrant allowing for the device to be used, data from the GPS device will be considered inadmissible.  Further, in Carpenter v. United States, 138 S. Ct. 2206 (2018), the United States Supreme Court held that the Fourth Amendment protections against search and seizure also requires the government to obtain a search warrant before acquiring cell phone data, which the Court analogized to GPS tracking data.

    Read More

    Topics: family law, Anne B. Hemenway, GPS, invasion of privacy, exclusionary rule, no consent, admissibility of data

    BANKRUPTCY: Reluctant Judicial Enforcement of Prepetition Automatic Stay Waivers

    Posted by Anne B. Hemenway on Thu, Nov 29, 2018 @ 08:11 AM

    The Lawletter Vol 43 No 7

    Anne B. Hemenway—Senior Attorney, National Legal Research Group

         Courts are reluctant to enforce prepetition automatic stay waivers, but will not rule out the possibility of enforcement. Often found as a clause in a forbearance agreement, a prepetition automatic stay waiver is therefore not per se unenforceable, notwithstanding the fact that its close relative, a prepetition waiver of a bankruptcy filing, is per se unenforceable. See In re Simpson, Case No. 17-10442, 2018 WL 1940378 (Bankr. D. Vt. Apr. 23, 2018). Generally, courts will hold that the debtor must carry the burden of proving that such contractual waiver should not be enforced. In re A. Hirsch Realty, LLC, 583 B.R. 583 (Bankr. D. Mass. 2018). 

    Read More

    Topics: bankruptcy, Anne B. Hemenway, enforceability, prepetition automatic stay waivers

    Civil Rights Litigation: The Supreme Court Further Restricts Bivens Actions

    Posted by Anne B. Hemenway on Fri, Dec 15, 2017 @ 09:12 AM

    The Lawletter Vol 42 No 9

    Anne Hemenway, Senior Attorney, National Legal Research Group

                Since the United States Supreme Court's decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal courts have allowed individuals to seek damages for unconstitutional conduct by individual federal officers. A Bivens action, as they are known, recognizes an implied cause of action directly under authority of the U.S. Constitution, where there is an absence of any statute specifically conferring the cause of action.

                Recently, in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court recognized Bivens actions but held that it will now take a more "cautious" approach to each Bivens case presented to the Court to determine if the action falls under the previous Bivens claims and will not accept a Bivens action that is brought in a new context. The Court's stated purpose in taking this new cautious approach is to avoid intruding on the role of Congress to enact statutes for claims outside of the current Bivens context. To determine whether a Bivens action falls outside of the current Bivens context and is thus "novel" and not actionable, the Court rejected the Second Circuit Court of Appeals' previous two-part test and instead stated that the proper test for determining whether a case presents a new Bivens context is "[i]f the case is different in a meaningful way from previous Bivens cases decided by this Court." Id. at 1859. 

    Read More

    Topics: civil rights, Bivens actions, action outside Bivens context

    PATENT LAW: Laches Defense No Longer Available in Patent Infringement Cases

    Posted by Anne B. Hemenway on Mon, Jul 17, 2017 @ 09:07 AM

    The Lawletter Vol 42 No 5

    Anne Hemenway, Senior Attorney, National Legal Research Group

                In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017), the United States Supreme Court held that the defense of laches is not proper in a patent infringement case when suit is brought within the six-year statute of limitations period for patent infringement cases, set forth in 35 U.S.C. § 286. This decision abrogated decisions in numerous federal circuit courts which allowed the laches defense.

                Under federal law, damages are limited in patent infringement cases by the statute of limitations set forth in § 286 to cover only infringement that occurred within the six-year period prior to the filing of the complaint. This six-year period is counted backward from the filing of the complaint, not forward to the time of the patent infringement event.

    Read More

    Topics: patent law, laches defense, patent infringement, six-year statute of limitations period

    BANKRUPTCY: Puerto Rico Debt Restructuring

    Posted by Anne B. Hemenway on Fri, Nov 11, 2016 @ 11:11 AM

    The Lawletter Vol 41 No 10

    Anne Hemenway, Senior Attorney, National Legal Research Group

         On June 13, 2016, in Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, 136 S. Ct. 1938 (2016), the United States Supreme Court was asked to decide whether the Commonwealth of Puerto Rico should remain a "state" for purposes of 11 U.S.C. § 903(a), the subsection of Chapter 9 of the United States Bankruptcy Code that states that "a State law prescribing a method of composition of indebtedness of such municipality may not bind any creditor that does not consent to such composition." This issue came to the Court on an injunction proceeding by bondholders suing the Puerto Rico government to enjoin the application of the Puerto Rico Corporation Debt Enforcement and Recovery Act (the "Puerto Rico Act"). Enacted by Puerto Rico in an effort to deal with its extraordinary financial crisis and, specifically, to create its own bankruptcy scheme to restructure the debt of its insolvent public utilities. The bondholder's issue was presented in federal court notwithstanding an amendment to the Code to exclude Puerto Rico from the definition of a "state." See 11 U.S.C. § 101(52).

    Read More

    Topics: bankruptcy, Anne B. Hemenway, restructuring, Puerto Rico debt, remains a state

    BANKRUPTCY: Rejection or Assumption of Executory Contracts Under 11 U.S.C. § 365

    Posted by Anne B. Hemenway on Mon, Jul 25, 2016 @ 14:07 PM

    The Lawletter Vol 41 No 7

    Anne Hemenway—Senior Attorney, National Legal Research Group

         A personal service contract, such as one between an artist and a manager or between a recording group and a record company, may be rejected or assumed under the U.S. Bankruptcy Code. Generally, such management or promotional agreements are considered to be executory contracts under 11 U.S.C. § 365(a). An executory contract under § 365 is not specifically defined, but the term commonly refers to a contract that has performance due from both the debtor and the contracting party. In re Gen. Datacomm Indus., 407 F.3d 616 (3d Cir. 2005). Professor Vern Countryman's definition in Executory Contracts in Bankruptcy: Part I, 57 Minn. L. Rev. 439, 460 (1973), is considered to be the definitive definition of an executory contract.

         A trustee or debtor-in-possession has a right to assume or reject executory contracts under § 365 within the time frames set forth in § 365(d), but the agreement remains in effect pending the actual act of assumption or rejection. In re Nat'l Steel Corp., 316 B.R. 287 (Bankr. N.D. Ill. 2004). If a personal service contract is rejected, it is considered breached under § 365(g) as of the date immediately preceding the date the bankruptcy petition was filed.

    Read More

    Topics: bankruptcy, contracts, Anne B. Hemenway, The Lawletter Vol 41 No 7, executory, personal service contract, performance by debtor and contracting party

    EMPLOYMENT LAW: Recent Equal Pay Developments

    Posted by Anne B. Hemenway on Wed, Jun 1, 2016 @ 09:06 AM

    The Lawletter Vol 41 No 5

    Anne Hemenway, Senior Attorney, National Legal Research Group

         Under the Equal Pay Act, 29 U.S.C. § 206(d), no covered employer shall discriminate on the basis of sex by paying wages to employees at a rate less than the rate paid to employees of the opposite sex for equal work. In Hesterberg v. Tyson Foods, Inc., Case No. 5:14-CV-05382, 2016 WL 483017 (W.D. Ark. signed Feb. 5, 2016), the court held that to establish a prima facie claim for damages under the Equal Pay Act, the complaining party must show by a preponderance of the evidence that "(1) she was paid less than a male employed in the same establishment, (2) for work on jobs requiring skill, effort and responsibility, (3) which were performed under similar working conditions." Id. at *5. The employer will be entitled to summary judgment and dismissal of the equal pay suit if it can show that any pay differential between the plaintiff and her male counterpart is explained by a statutory defense such as a merit system or some excuse other than sex.

         The plaintiff in the case alleged that her immediate supervisor, who was male, had total discretionary authority over the amount of bonuses paid and percentage raises given to her and her male counterparts and that his decisions regarding these forms of compensation were largely subjective. She argued that her comparatively lower bonuses and percentage raises in the years in question were the result of the males' being treated more favorably. Recognizing that employers can "easily circumvent the Equal Pay Act by relying substantially on bonuses to compensate employees," id. at *6, the court denied the employer's motion for summary judgment. Genuine issues of material fact existed as to whether the employer's merit system, on which the employer relied to justify the pay differential in this case, had been implemented at the company in a truly nondiscriminatory way.

    Read More

    Topics: employment law, Anne Hemenway, bonuses, Lawletter Vol 41 No 5, 29 U.S.C. § 206, equal pay, Equal Pay Act

    New Call-to-action
    Free Hour of Legal Research  for New Clients
    Seven ways outsourcing your legal research can empower your practice

    Subscribe to The Lawletter

    Latest Posts