“Texas courts shut down websites and disabled servers late last week in response to a ransomware attack, the Office of Court Administration announced Monday,” reports Dave Boucher in The Dallas Morning News’ Courts.

System administrators discovered early Friday that hackers had taken over at least a portion of the statewide court network and demanded some form of ransom in return for restoring control. In a statement, the administration said the attack began “in the overnight hours” the same day it was discovered.

The state did not specify what exactly hackers requested or how they gained access to the system, and a spokeswoman did not return a phone call seeking comment. The court system is working with state law enforcement to investigate the breach and vowed not to pay any ransom.

The administration runs the information technology services for Texas appellate courts and state judicial agencies, including the Texas courts website.

Read the article.

“A Dallas law firm fired an employee after he wrote in a Facebook post that lambasted businesses that require customers to wear masks during the COVID-19 pandemic and made references to firearms and ammunition,” report Dana Branham in The Dallas Morning News’ Public Health.

“The law firm, Thompson & Knight, called the post ‘threatening and offensive’ in a statement.”

“The firm’s chief marketing officer, Kelby Luther, confirmed Monday that the terminated employee is Kevin Bain, who had worked as a document services manager based in Dallas.”

“Luther said the firm’s statement refers to a widely shared Facebook post in which Bain referred to the Whole Foods grocery store on Lomo Alto Drive in Highland Park, saying that any business that insists he wear a mask ‘will get told to kiss my Corona ass and will lose my business forever.'”

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Comedian, Jeff Dunham, “plays a bland everyman who brings to life a series of over-the-top puppet characters, some of which have offended politically correct sensibilities – there’s a skeletal terrorist, a crotchety old geezer, a jalapeño pepper with a Mexican accent, a flamboyant pimp, and so on,” reported in BakerHostetler’s blog.

“These characters are Jeff Dunham’s living.”

“The value of Dunham’s puppet partners is at the center of a deeply exasperated complaint he filed in the Central District of California in April. Dunham goes after the defendants, Raymond Lei and his novelty fashion company ooshirts… Allegedly, Lei and company have spent years profiting from Dunham’s copyrights and trademarks by printing his various characters and their catch phrases, as well as images of Dunham himself, on T-shirts and other products.”

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Duane Morris attorney Maxine D. Bayley has been elected as chair of the 2020-2021 American Immigration Lawyers Association (AILA) Northern California Chapter board of directors. AILA is a national association of immigration lawyers established to promote justice, advocate for fair and reasonable immigration law and policy, advance the quality of immigration and nationality law and practice, and enhance the professional development of its members. AILA’s Northern California Chapter currently has nearly 1,000 members.

Bayley practices in the area of immigration law, representing clients in matters involving the employment of foreign nationals in a variety of industries, with a particular focus on intracompany transfers of managers, executives and employees with specialized knowledge. Her practice also involves representing individuals regarding adjustment of status and naturalization applications, as well as nonimmigrant and immigrant waivers of inadmissibility. In addition, Bayley has experience with Violence Against Women Act (VAWA) petitions, asylum, federal court litigation, drafting complaints and motions for summary judgment and with appeals to the Board of Immigration Appeals and petitions for review in the U.S. Circuit Courts of Appeals for the Fourth, Eighth and Ninth Circuits.

Bayley is a graduate of the American University, Washington College of Law (J.D., 2004), where she represented individuals in the International Law and Human Rights Clinic, and a graduate of Gonzaga University (B.A., 2001).

Eversheds Sutherland is pleased to announce that Brandi A. Taylor has joined as counsel in our San Diego office. As an experienced attorney in two growing areas of regulatory practice, Taylor’s addition to the firm expands both the data privacy and education service offerings of the Litigation Practice Group.

Taylor counsels businesses in the complex areas of data privacy and cybersecurity, with a particular focus on assisting businesses in their compliance efforts with the California Consumer Privacy Act (CCPA). Her experience includes counseling clients on the Children’s Online Privacy Protection Act (COPPA) and California privacy laws protecting minors, the Family Educational Rights and Privacy Act (FERPA) and the Gramm-Leach-Bliley Act (GLBA), among other laws.

Her regulatory practice includes advising companies engaging with US federal and state regulators, including the US Department of Education, the Federal Trade Commission and state attorneys general. Taylor’s experience includes counseling one of the largest social media and technology companies on CCPA and other privacy laws, including partnering with EU counsel to advise on the European Union General Data Protection Regulation (GDPR).

In addition to her data privacy and cybersecurity work, Taylor advises EdTech companies, investors, and colleges and universities on transactional, regulatory and litigation matters. She regularly advises on regulatory compliance matters and strategic issues pertaining to their participation in the federal student financial assistance programs, accreditation, licensure and related regulatory concerns.

“The government’s obsession with fossil fuels is clear, due to inscrutable causes unrelated to reason. However, it has reached implausible extremes. Now, through the National Energy Control Center (Cenace), and invading the powers of the Energy Regulatory Commission (CRE), it issued an agreement last Friday that prohibits operational tests of renewable power plants, and in practice blocks its operation and dispatch. It is unprecedented in the world. Although the health contingency is fallaciously used as an argument, in reality there are two reasons for this unjustifiable outrage,” reports reve.

“The first is the low operating costs of renewable power plants (solar and wind) – their zero marginal cost – which is why they are dispatched as a priority and economically exclude fossil fuel CFE plants. In the context of a sharp drop in electricity demand due to the economic collapse, the government wants to avoid competition. It aims to put into operation obsolete, inefficient and polluting fuel oil plants, under the pretext of stability of the electrical system in terms of voltage and frequency, accusing renewables of intermittency. In Mexico, renewables contribute 6 -7% of total energy generation. In Germany, Denmark, Italy, California, Texas, and in several Chinese provinces and in many other countries, the penetration of renewables ranges from 15 to 30% without affecting the stability of the electrical system. The entry of fuel oil plants instead of renewables will severely impact costs, including the CFE itself (Basic Supply). We are all going to pay for it through higher taxes and electricity rates.”

Read the article.

Jonathan Chisholm of InfoGoTo discusses “how innovators and developers can protect their intellectual property in the form of trade secrets, and how a date- and time-stamped audit trail of their IP development can be protected by a trusted third-party.”

He analyzes four method of IP Protection: Patents, Trademarks, Copyrights and Trade Secrets to help protect the idea with reasonable efforts.

It’s not easy bringing an idea to life but protecting these ideas (in the form of trade secrets) can be.

Read the article.

“In a recent decision, the First Department upheld a portion of Justice Andrea Masley’s Order which enjoined a defendant modeling agent and modeling agency from unfairly competing, disclosing or misappropriating plaintiff’s confidential information, and interfering with plaintiff’s contractual relationship with its models, but refused to extend the terms of the employment agreement which prohibited the agent from contacting and soliciting models throughout the pendency of the litigation,” reports Jaclyn M. Ruggirello in Farrel Fritz Attorney’s Injunctions.

“In Marilyn Model Management, Inc. v Derek Saathoff, 1 Model Management, LLC d/b/a One Management, a modeling agency brought an action seeking injunctive relief and damages for “flagrant and repeated breaches” of the non-solicitation and confidentiality obligations of its former agent, Derek Saathoff.  Plaintiff’s complaint alleged that Saathoff unlawfully solicited at least six of the plaintiff’s models, two of which abandoned the plaintiff agency for Saathoff’s new agency, 1 Model Management LLC, also a named defendant in the action. Saathoff resigned from the plaintiff modeling agency to begin representing models with 1 Model, a direct competitor of the plaintiff. Despite his contractual obligations, one could assume Saathoff was not too concerned with keeping his actions a secret when he posted an image of a model, still under contract with the plaintiff, to his Instagram page, publicly welcoming her to his new agency.”

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“A California federal judge has denied preliminary approval of a $1.1 million settlement in a wage lawsuit against Western Express, sending the parties back to the drawing board,” reports Tyson Fisher in Land Line.

“On May 1, U.S. District Judge Jesus G. Bernal denied Marc Rivera’s preliminary settlement against Western Express worth more than $1 million. Both Rivera and Western Express were seeking certification of the settlement. The class action lawsuit accuses the company of underpaying California drivers by violating rest and meal break wage laws.”

“Explaining the decision, Bernal pointed to the ‘Release’ section of the settlement. Found in nearly all settlements, the release prevents plaintiffs from bringing a related claim against the defendant in the future. If the agreement were to release claims based on different facts, the court can deny the approval.”

“Calling the release ‘overbroad,’ Markson’s counsel filed the objection on behalf of absent class members in the Western Express lawsuit who are also members of the Markson case.”

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“Virtually every aspect of our lives has been disrupted in one way or another as a result of the COVID-19 pandemic and the ensuing economic collapse,” write Timothy P. Van Dyck and Andrew C. Bartholomew in Bowditch Attorneys’ Publications. “While certain of these disruptions have been difficult to predict, at least one has not: a huge uptick in commercial disputes.  Simply by way of illustration, disputes implicating force majeure clauses (where, for example, a party’s performance of its obligations has been frustrated by an interruption in the supply chain or an inability to access the labor market) have already begun to materialize.  And just this week, a major restaurant chain sued its insurer for rejecting its damages claim stemming from the pandemic, alleging that its “all risks” policy covers financial losses after Massachusetts and other states ordered restaurants to close except for takeout service.”

“With most courts closed to the public and facing a backlog of cases when they eventually reopen (where criminal matters will undoubtedly take priority), many parties who find themselves immersed in these disputes will likely seek out alternative dispute resolution and, in particular, the use of arbitration.  In the post-pandemic world, parties need to be prepared to avail themselves of the benefits of arbitration by crafting thoughtful, tailored arbitration clauses to ensure that their disputes are resolved cost-effectively, fairly, and with as little business disruption as possible.”

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“The Ohio State University announced today details of a $40.9 million settlement reached with 162 survivors in 12 lawsuits related to sexual abuse by Richard Strauss, a university-employed physician from 1978 to 1998 who died in 2005,” was reported in Ohio State News.

“An independent investigation launched by the university determined in 2019 that Strauss abused students during his time at Ohio State and the university administration failed to appropriately respond at the time.”

“In March, Ohio State announced a monetary settlement with nearly half of the individuals who brought claims against the university related to Strauss. All have now signed on to the terms of the settlement.”

“Ohio State continues to participate in good faith in the mediation process with the survivors involved in the remaining lawsuits, and remains committed to a resolution with plaintiffs, including a monetary resolution.”

Read the article.

“Grubman Shire Meiselas & Sacks, a large media and entertainment law firm, appears to have been the victim of a cyberattack that resulted in the theft of an enormous batch of private information on dozens of celebrities, according to a data security researcher,” reports Todd Spangler and Shirley Halperin in Variety’s Digital News.

“The trove of data allegedly stolen from the New York-based firm by hackers — a total of 756 gigabytes — includes contracts, nondisclosure agreements, phone numbers and email addresses, and ‘personal correspondence,’ according to an image of the hackers’ post provided to Variety by Emsisoft, a cybersecurity software and consulting company specializing in ransomware.”

“The documents purportedly include information about multiple music and entertainment figures, including: Lady Gaga, Madonna, Nicki Minaj, Bruce Springsteen, Mary J. Blige, Ella Mai, Christina Aguilera, Mariah Carey, Cam Newton, Bette Midler, Jessica Simpson, Priyanka Chopra, Idina Menzel, HBO’s ‘Last Week Tonight With John Oliver,’ and Run DMC. Facebook also is on the hackers’ hit list.”

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“Tennessee Titans president and CEO Steve Underwood retired from his full-time duties Friday after a four-decade relationship with the franchise,” reports Reuters in Yahoo! Sports.

“Senior vice president of business operations Burke Nihill was promoted to replace Underwood, who will remain with the team as a senior counselor.”

Controlling owner Amy Adams Strunk said in a release. “Since starting with the club as the General Counsel, Burke has continued to take on additional responsibilities to the point that he has become an invaluable resource and an absolute superstar for our organization.”

“I have great confidence in him and his leadership, and I know that the future is bright for the team.”

Read the article.

Please join us for our webinar “The Benefits of Preparation: Employee Benefit Plan Considerations When Reopening Your Business.” This program will be a multi-speaker discussion focused on benefit plan issues employers should be considering when employees return from furlough or are rehired. The issues discussed will include practical considerations for retirement, health and welfare, and executive compensation plans.

We will cover the following topics and related questions:
•Recent extensions to the deadlines for COBRA, special enrollment periods, benefits claims/appeals, employer notices, and other disclosures.
•The impact of reopening on 401(k) and other defined contribution retirement plans (including 403(b) plans), as well as defined benefit pension plans, including eligibility and vesting.
•The impact of reopening on health and welfare plans, and cafeteria plans, including discussion of Affordable Care Act waiting periods and break in service rules.
•Executive compensation issues, such as the impact of recent pay cuts and considerations for deferred compensation plans and stock options

During registration, registrants will be prompted to provide the questions that are top of mind for them. We will spend a portion of this webinar addressing the questions submitted during registration and during the live webinar.

Register

In this webinar, we will address

•Disaster relief through grant making, including to for-profit businesses
•Proper handling of direct disaster relief to individuals
•Designing compliant employer-sponsored charitable disaster relief funds
•Options for providing disaster relief to your own employees, including PTO donation programs

Register

Please join us for our “California Reopening: Returning to the Workplace & Employment-Related Issues” webinar. This program will be a multi-speaker discussion on some of the upcoming challenges employers face as they transition their work forces back into California workplaces.

Topics Include:
•How to manage health screenings and address privacy concerns.
•Re-hiring laid off employees and returning furloughed employees.
•Returning and remote worker wage and hour issues.
•Status of AB 5 and other classification issues related to reopening the workplace.
•Navigating city, county, state, and department of public health orders during reopening.
•Approaches to lawfully address situations such as requests for “hazard pay”, safety concerns, and other potentially concerted activity, and employees who refuse to return to work.
•Frameworks to comply with COVID-19 laws and guidance that are:
o hyper-localized (state, county, city, public health departments issue shutdown orders and workplace guidance),
o heavily-regulated (every agency has something),
o industry-specific (agencies have targeted guidance to industries), and
o frequently-updated (the guidance websites change daily/weekly).

During registration, registrants will be prompted to provide the questions that are top of mind for them. We will spend a portion of this webinar addressing the questions submitted during registration and during the live webinar.

Register

In re Forney Industries, the Federal Circuit Court of Appeals reversed the refusal by the Trademark Trial & Appeal Board (TTAB) to register the color mark below, used on Forney’s product packaging for its welding and machining tools and accessories.

Forney sought to register the mark on the ground that it was inherently distinctive. In refusing registration, the TTAB held:

(1) a multi-color mark (such as the one at issue here) could never be inherently distinctive as trade dress, and

(2) color marks for product packaging cannot be inherently distinctive without a well-defined peripheral shape or border.

The Federal Circuit reversed both holdings.

Neither the Federal Circuit nor the Supreme Court had ever directly addressed whether a multi-color mark applied to product packaging can be inherently distinctive. Nonetheless, the Federal Circuit reviewed similar Supreme Court cases for guidance. In Two Pesos , the Supreme Court held that the décor of a “festive eating atmosphere” of a restaurant was protectable trade dress. Its opinion rested on the premise that trade dress may be inherently distinctive. And while the Court in Qualitex noted that color marks—a green-gold color of a dry-cleaning pad—may be protectable where the color has acquired secondary meaning, it did not go as far as saying that secondary meaning is required.

In Wal-Mart , the Supreme Court held that “with respect to at least one category of mark—colors—we have held that no mark can ever be inherently distinctive”; it later reiterated by way of comparison that “design, like color, is not inherently distinctive.”

With these cases in mind, the Federal Circuit found in In re Forney Industries that the TTAB erred in ruling that multi-color product packaging can never be inherently distinctive. In the Federal Circuit’s view, the controlling precedent did not support such a strict rule.

The Federal Circuit concluded that Forney’s multi-color product packaging mark was more like the décor/”packaging” at issue in Two Pesos than the product designs in Qualitex and Wal-Mart. The Federal Circuit noted that while Wal-Mart did not explicitly spare product packaging trade dress when finding color to be “not inherently distinctive,” the decision drew a distinction between Wal-Mart’s apparel product design and the décor in Two Pesos, which was analogized to product packaging.

The Federal Circuit also struck down the rule, fashioned by the TTAB, that color may only be inherently distinctive in conjunction with a peripheral shape or border. The Federal Circuit noted that precedent does not mandate such a rule. Rather, the question was whether the particular combination of colors in the product packaging design applied for by Forney function as a source identifier. The Federal Circuit remanded the case to the TTAB for an answer.

Like many Federal Circuit decisions, Forney may be destined for review at the Supreme Court. A deciding factor will be whether the Supreme Court’s seemingly broad observation in Wal-Mart—that no color mark “can ever be inherently distinctive”—was limited to product design trade dress, or whether it includes product packaging design as well.

Source: Nathan Harris, Lando & Anastasi, LLP

1. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992).
2. Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995).
3. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).

Honor is the latest professional recognition for attorneys of trial firm Lyons & Simmons

Prominent Dallas trial lawyer and co-founder of the trial firm Lyons & Simmons, LLP Michael Lyons has once again been recognized among D Magazine’s peer-nominated listing of The Best Lawyers in Dallas.

Selected to the 2020 listing based upon his work on behalf of plaintiffs in personal injury, products liability and medical malpractice litigation, this is the seventh time Lyons has been honored among Dallas’ leading lawyers. He is among an even more select group of attorneys to have been recognized by D Magazine for both personal injury and business litigation.

Lyons’ inclusion among the Best Lawyers in Dallas is the latest in a series of prestigious honors over the past few months for attorneys at Lyons & Simmons, a Dallas-based trial firm focused on representing clients in personal injury, wrongful death, and complex business dispute cases in Texas and throughout the United States.

Earlier this year, firm co-founder Chris Simmons was recognized among the top 100 attorneys under the age of 40 for 2020 by Texas Rising Stars. It was his fourth consecutive selection to the list of the state’s top 100 young attorneys regardless of practice focus.  Associate Stephen Higdon earned his second selection to the Texas Rising Stars listing of the state’s top young personal injury attorneys. Simmons has earned the same distinction each of the past seven years.

Simmons and Higdon also earned recognition among D Magazine’s 2020 listing of the Best Lawyers Under 40 in Dallas. Additionally, Lyons and Simmons recently were recognized in the elite Lawdragon 500 Leading Plaintiff Consumer Lawyers guide for 2020.

“A California appeals court on Tuesday overturned most of a 2017 jury verdict awarding Quincy Jones $9.4 million in royalties and fees from the Michael Jackson estate over the use of Jones-produced Jackson hits in the concert film ‘This Is It’ and two Cirque du Soleil shows,” reports Andrew Dalton in Insurance Journal’s News.

“The state’s 2nd District Court of Appeal ruled that the jury misinterpreted a contract that was the judge’s job to interpret anyway. It took away $6.9 million that jurors had said MJJ Productions owed Jones for his work on ‘Billie Jean,’ ‘Thriller,’ and more of Jackson’s biggest hits.”

“The appeals court found that the jury wrongly granted Jones money from licensing fees, wrongly went beyond the 10% royalty rate Jones was owed for record sales, and incorrectly granted Jones money for remixes of Jackson’s master recordings.”

Read the article.

“The state Public Utilities Commission on Thursday approved a $1.9 billion settlement with PG&E that allows it to get credit for wildfire prevention spending while at the same time escape being fined $200 million over regulatory violations stemming from two years of massive wildfires,” reports Jaxon Van Derbeken in NBC Bay Area’s Investigative.

“The unanimous vote came after PG&E challenged the findings of a regulatory judge who urged that the company be fined on top of having to pay a total of $1.9 billion in improvements and upgrades.”

“In advocating for the no-fine deal, Commissioner Clifford Rechtschaffen reminded his colleagues about the devastation associated with 15 fires tied to the utility’s equipment in 2017 and 2018. ‘For the victims of the fire … the damage, the pain and the trauma is ongoing,’ he said.”

Read the article.