Season’s Greetings

This is the time of year when season’s greetings, holiday and new year’s wishes, regardless of religion, culture, ethnic background or heritage, usually fills the air.  In past years, we have spent lots of time and attention on shopping for gifts, sending cards, attending or hosting parties, dinners and gaining the 10 pounds we resolve to lose every new year.  Some join a swelling tide of well-wishers, holiday revelers, frosty noses, red cheeks and smiling faces. We traditionally gather together with family, friends, loved ones and colleagues –  often planning travel and vacations and taking a break from work and school.

This year, much like last year, but unlike any others, we continue to face challenges unthinkable and unimaginable less than two years ago. We have and continue to suffer tragic losses, we continue to confront anxiety and fear, we continue to pray for our most vulnerable. Many were often helpless to be near loved ones, unable to hold their hands or be there during moments when it mattered most. This has also been a year in which natural disasters and catastrophic events have contributed to the despair, forcing us to confront tragic loss of life and devastation to homes and property.

This past year, adding to the raging pandemic is our growing frustration and often a sense of helplessness – it seems each time we think we are turning the corner, we feel outwitted by a tiny organism – a virus known as COVID-19. We argue over mask mandates and social distancing, whether to vaccinate or not to vaccinate and it sometimes feels like we are on different sides. The differences aren’t trivial and yes, they are most often very real. But they aren’t what really matters.

Once again, I prefer to focus on what is best in all of us, rather than what we argue about. Another year in which we witnessed heroic self-sacrifices from our health care workers, first responders, emergency search and rescue personnel, as well as our finest and our bravest – not just in our nation, but around the world.  So many dedicated, selfless people across the diverse fabric of our communities –  communities that have transcended borders. People from across nations, from around the globe, coming to the aid of those in need –  in places they have never been, helping people they don’t know.

Ordinary people performing extraordinary feats of kindness, tirelessly giving of themselves for long, sometimes thankless hours to save lives, feed the hungry, shelter the homeless, provide clothing and rebuild damaged houses and give comfort to so many in need.  Let’s also not forget those medical researchers, clinicians and volunteers who are still engineering medical miracles and who continued to work tirelessly to prevent this virus from outwitting us.  While we never know what the future holds, nor what “normal” might look like in the months and years ahead, we can change the way we handle and deal with it – together.

I know the news media spends more time reporting how these difficult times have brought out the worst in some of us. But quietly and usually without fanfare, you can see more examples of how these adversities are bringing out the best in us – just stop and look around you. They are my inspiration to try harder to live up to that ideal, rather than any headlines.

So not surprisingly, this time of year my thoughts turn gratefully to those people and relationships who have helped to enrich my life, personally and professionally and to those who have helped make this world better. There really aren’t words to adequately express my appreciation, so I’ll just say “thank you” and trust you will understand all that is behind those two simple words.

Wishing all of you, your families, friends and loved ones a meaningful holiday season and a wonderful new year filled with health, happiness, prosperity and peace!

US 5th Circuit Court of Appeals Issues Emergency Stay Blocking New COVID-19 Rules

Last Thursday (4 November 2021) we reported on the U.S. DOL’s announcement of new employer COVID-19 vaccine mandates (see US Department of Labor Announces Emergency COVID-19 Employer Requirements .

Yesterday (6 November 2021), a three judge panel of the United States Court of Appeals for the Fifth Circuit, granted an emergency stay prohibiting enforcement of the rules for now, saying they raise “grave statutory and constitutional issues.”   The order, temporarily blocks implementation of the new rules and the Court ordered the U.S. Government to file papers by Monday afternoon in an effort to ensure swift consideration of the request to issue an injunction against the vaccine mandate and corresponding testing requirements under the new rules.

Click here to read the 5th Circuit Court of Appeals Emergency Stay Order (November 6, 2021).

Stay tuned!

 

US Department of Labor Announces Emergency COVID-19 Employer Requirements

NEWS RELEASE

Today, the United States Department of Labor issued a press release announcing an emergency temporary standard to protect workers from coronavirus.

These requirements are intended to implement the COVID-19 vaccine directive announced by President Biden and will apply to employers with 100 or more employees.

The standards will require companies subject to the rules to ensure that:

  • Each vaccinated employee provides proof (type and date) of vaccination status (e.g., immunization record from a health care provider or pharmacy; CDC Covid-19 vaccination card; immunization records from a governmental authority; or other official documentation);
  • Employees who are not vaccinated must produce a negative COVID-19 test at least weekly and wear a mask (face covering) in the workplace;
  • An employee who is vaccinated but unable to provide documentary proof, must provide the employer with a written, signed and dated statement attesting to the fact they were successfully and properly vaccinated; and
  • Employees are given paid time off in order to obtain a Covid-19 vaccination and, if necessary, sick leave to recover from any side effects.

There are also separate rules requiring every staff member in health facilities that receive Medicare and Medicaid reimbursements to be vaccinated and health workers and federal contractors  have until January 4, 2022 to obtain either their second dose of the Pfizer/BioNTech or Modernavaccine or a single dose of the Johnson & Johnson vaccine.

The new rules do not require employers to provide or pay for tests, unless a collective bargaining agreement that applies to the employer requires them to do so.

The standards were published in the US Federal Register this morning and you can read a copy or download the regulations in PDF form here: COVID-19 Vaccination and Testing; Emergency Temporary Standard.

As always, if you have questions or want more information about this or any other Legal Bytes posting, don’t hesitate to contact me, Joe Rosenbaum, or any of the Rimon lawyers with whom you regularly work.

 

20 Years Ago on September 10th . . .

On September 10th, 20 years ago, 2,606 people in the New York metropolitan area went to sleep in preparation for their jobs, meetings, interviews or visits to the World Trade Center in the morning.

Another 246 people went to sleep in preparation for their morning flights, most bound for Los Angeles and some heading to San Francisco. That night, another 125 military personnel, contractors and workers went to bed, knowing they had to get to the Pentagon early to get to work the next day.

There were 343 Firefighters of the New York City Fire Department (including a Chaplain and two paramedics) who went to sleep on September 10th, as well as 23 police officers of the New York City Police Department and 37 police officers of the Port Authority of New York and New Jersey Police Department.

There were 8 emergency medical technicians and paramedics from private emergency medical services, 3 New York State Court Officers and 1 Patrolman from the New York Fire Patrol, all of whom went about their normal routine that evening of September 10th, going to bed as they normally would. Some were scheduled for routine morning patrols or shifts at work, while others knew they might be called on to respond to any emergency that might need some extra help.

None of them saw past 10:08 am Eastern time on Sept 11, 2001.

Of the 2,977 people who died in the initial attacks on September 11th, 2,605 were U.S. citizens. There were also 372 non-U.S citizens, from over 90 countries who perished that day. They were from the United Kingdom, the Dominican Republic, India, Greece, South Korea, Canada, Japan, Columbia, Jamaica, Philippines, Mexico, Trinidad and Tobago, Ecuador, Australia, Germany, Italy, Bangladesh, Ireland, Pakistan and Poland.

So tonight before you go to sleep in preparation for your life tomorrow, kiss those you love, hold your children a little tighter, call that friend or relative you figured you can call tomorrow and never take even one moment of your life or the lives of those you hold dear, for granted.

In one single moment life may never be the same.  For those left behind by the nearly 3,000 souls that perished that day, it can never be the same.

It will never be the same for any of us.

SEC Adds Chinese Government Interference to Required Risk Reporting

Debbie Klis, a Rimon partner based in Washington, DC, has published a post on the Rimon IM Report noting that just yesterday (26 July 2021) a senior SEC official advised that Chinese companies listed on stock exchanges in the United States, must disclose the potential risks associated with the Chinese government interference as part of their normal reporting requirements.

You can read the entire post Chinese Companies Listed on US Exchanges Must Disclose Potential Risk Associated with Potential Government Interference.

You can also learn more about Debbie and her practice here:  Bio: Debbie A. Klis and if you want to obtain more information, feel free to contact Debbie A. Klis directly. Of course you can always contact me, Joe Rosenbaum, or the Rimon Law lawyer with whom you regularly work.

SCOTUS Reins In FTC Enforcement Powers

Today (April 22, 2021) the U.S. Supreme Court dealt a significant blow to the practice by the Federal Trade Commission (“FTC”) of imposing restitution requirements on violators of the Federal Trade Commission Act (“Act”).

In a unanimous decision written by Justice Stephen G. Breyer, the Court held that §13(b) of the Act was never intended, nor affords the FTC the authority to obtain restitution or require bad actors in the commercial marketplace to disgorge any monies they may have received as a consequence of their bad acts.

Although the Supreme Court agreed the FTC could enforce the Act through its own administrative proceedings under §5 of the Act, it held that the 1970 addition to the Act that authorized the FTC to seek injunctive relief to stop activities prohibited by the Act, did not also authorize a claim for court-ordered monetary relief.

In this particular case, the lower court granted the FTC’s request for a permanent injunction against the defendant for certain deceptive payday lending practices, but also relied on §13(b) of the Act to require the bad actor (defendant) to disgorge and pay US$1.27 billion in restitution. The defendant appealed to the Ninth Circuit Court of Appeals which rejected defendant’s argument that monetary relief is not within the Commission’s authority to enforce the Act.

The U.S. Supreme Court disagreed, holding that nothing in the statute explicitly authorizes the FTC to obtain court-ordered monetary relief under §13(b) and the structure and history of the Act precludes a finding that such relief available to the Commission.  This is a significant holding that clearly limits the FTC’s power to seek court-ordered monetary relief under §13(b) of the Act, from those alleged to be in violation of the Act.

You can read and download a copy of the decision in the case right here AMG Capital Management, LLC, et al., Applicants v. Federal Trade Commission, Certiorari to the United States Court of Appeals for the Ninth Circuit, No. 19-508 (Argued January 13, 2021; Decided April 22, 2021).

As always, if you want to know more about the information in this posting or if you have any questions, contact me, Joe Rosenbaum, or any of the lawyers at Rimon Law with whom you regularly work.

 

 

U.S. Supreme Court Decides Oracle’s Copyright Infringement Case in Favor of Google

Google’s Copying of Oracle’s JAVA Code is a Non-Infringing Fair Use
Eric C. Cohen, Special Counsel, Rimon, P.C.

In a decision ending almost 10 years of litigation, the U.S. Supreme Court held today that the incorporation of about 11,500 lines of Oracle’s Java Application Programming Interface (“API”) code into Google’s Android operating system is a fair use, and thus does not infringe Oracle’s copyright in its Java operating system. It did not decide the issue of whether the API code is copyrightable.

The facts in the case are fairly straightforward. To create the Android platform, Google programmers wrote millions of lines of new code, but because Google wanted all other programmers, already familiar with Java, to be able to work with its new Android platform, it copied roughly 11,500 lines of code from the Java SE program.” (Slip opinion at 3) The Court noted “Google copied that portion of the Sun Java API that allowed programmers expert in the Java programing language to use the “task calling” system that they had already learned,” (Slip opinion at 8) including code that labels and organizes tasks within the program.

The Court considered the fair use provision of the Copyright Act (17 U.S.C. § 107), and although questions of fair use necessarily involves findings of fact—the province of a jury—the ultimate question of whether those facts constitute fair use is a legal question for judges to decide de novo.* Application of the fair use doctrine includes consideration of four factors: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for and or value of the copyrighted work.

Considering the nature of the copyrighted work first, the Court held that the declaring code was “inextricably bound” with the idea of organizing tasks and with the use of specific commands that Oracle did not claim violated its copyright. The Court concluded this factor “points in the direction of fair use.” (Slip opinion at 24) Turning to the purpose and character of the use, the Court found Google’s use of the Java API sought to create new products – also favoring fair use. As to the amount and substantiality of the portion used, the Court noted that Google copied 11,500 lines of code out of about 2.86 million lines in the Sun Java API code, or about 0.4%. “The ‘substantiality’ factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.” (Slip opinion at 29)

With respect to the “market effects” of Google’s use of the Java API, the Court noted the market for Java was primarily laptops and desktops and previous efforts to adapt Java for use in mobile phones had largely been unsuccessful. Google’s economic expert testified that Android was not a market substitute for Java’s software because the products operate on very different devices – presumably because Android was developed in order to operate efficiently on mobile devices, with far less processing speed and memory than desktop and laptop computers on which Java was designed to function. Considering the effect of programmers widespread knowledge of Java, the Court concluded that if they allowed enforcement of Oracle’s copyright claim it would effectively limit future creativity of new programs, a principle inconsistent with the basic creativity objectives of the Copyright Act.
You can read and/or download the entire Supreme Court decision right here:  2021.04.05 Oracle v Google SCOTUS Opinion Decision No. 18-956.

Need to know more about this decision and its implication. Need help, feel free to contact Eric C. Cohen directly. As always you can contact me, Joe Rosenbaum or any of the lawyers at Rimon Law with whom your regularly work.

* The Court cited its own decision in Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996)—a patent case—for the proposition that the Seventh Amendment does not include the right to have a jury resolve a fair use defense. This holding may become fairly significant for its potential application to the issue of obviousness in patent cases.

Cyberspace Lawyer: The Force (Majeure) is Strong

Honored to have an article I (Joe Rosenbaum) wrote: “Managing Contract Risks & Remedies in a Time of Coronavirus”, published by Thomson Reuters in the June 2020 issue of Cyberspace Lawyer!  Many thanks to the Editor-in-Chief, Michael D. Scott, a long-time professional colleague and good friend!

Since that article was submitted for publication, an interesting new development arose at the end of June which was also posted here on Legal Bytes. A bankruptcy judge in Illinois has opined on at least one instance where a party to a real estate lease agreement can take advantage of such a clause. You can also read that update right here: COVID-19 and Force Majeure: What’s In Your Contract?

 

US Paycheck Protection Program (PPP) Extended

If you have been following Legal Bytes, then you know we have been following developments related to the various relief, incentive and stimulus programs being enacted and signed into law in the US (See Congress Provides Additional PPP Flexibility which includes links to many of the prior postings).

After Congressional passage of the legislation earlier last week, over this past July 4th weekend, President Donald Trump signed into law an extension of the application period for the Paycheck Protection Program (PPP) until August 8, 2020 and this morning applications were once again being accepted for the loans.  According to the SBA, there is still over $130 billion available in the fund.

We will continue to provide updates as they become available and as always, if you need more information or assistance you can always contact me, Joe Rosenbaum, or the Rimon Law lawyer with whom you regularly work. Stay safe, stay well!

COVID-19 and Force Majeure: What’s In Your Contract?

At the beginning of April, Legal Bytes highlighted some of the pros and cons of attempting to use a Force Majeure (Excusable Delay) clause in contracts as the basis for delaying or even failing to perform under a contract. See COVID-19: May the Force (Majeure) Be With You.   Now in early June, a bankruptcy judge in Illinois has opined on at least one instance where a party to a real estate lease agreement can take advantage of such a clause. For those of you inclined to read the entire decision you can check out In re Hitz Restaurant Group, No. 20-B-05012, 2020 WL 2924523 (Bankr. N.D. Ill., Eastern Division, June 3, 2020).

The specific language in the lease agreement is critical to this analysis, so this is the relevant language in the contract the court cites in the opinion:  “Landlord and Tenant shall each be excused from performing its obligations or undertakings provided in this Lease, in the event, but only so long as the performance of any of its obligations are prevented or delayed, retarded or hindered by … laws, governmental action or inaction, orders of government…. Lack of money shall not be grounds for Force Majeure.” (emphasis is mine).  The Bankruptcy Court held Executive Order 2020-7, the Stay-at-Home Order, issued by Illinois Governor Pritzker on March 16, 2020, “unambiguously” triggered the force majeure clause, holding the order constituted both “governmental action” and an “order of government.”

In its motion, the landlord claimed banks were still open, the tenant was still able to write checks and mail them to the landlord, that the tenant could still operate it’s take out and delivery service, that in order to obtain funds the tenant could have applied for and received an SBA loan, but more importantly that lack of money was specifically and explicitly stated in the clause as “not grounds for Force Majeure. ”  In dealing with the landlord’s motion, the Bankruptcy Court first noted neither the bank’s being open or closed or the tenant’s ability to write checks and mail them were relevant or responsive to the tenant’s arguments or for that matter the specific language of the force majeure clause.  More significantly, the Court rejected the landlord’s argument that the failure to perform was due to a lack of money – something specifically noted in the clause. To this the Court stated that not only was the tenant under no legal obligation (either in the lease or at law) to apply for an SBA loan to pay the rent, but the Illinois Governor’s Executive Order was the proximate cause of the tenant’s inability to pay rent and that the Executive Order clearly impaired the tenant’s ability to operate fully and generate the same amount of revenue as it might under normal circumstances.

That said, the Bankruptcy Court did take into account the fact that the restaurant (tenant) was not completely shut down and could still provide take-out and delivery services and decided that the tenant should still pay some rent, but in an amount “in proportion to its reduced ability to generate revenue due” as a result of the imposition of the Executive Order.  Neither landlord or tenant had suggested a way to determine a reasonable proportion so the Court essentially decided that since the tenant estimated the kitchen (the facilities within the premises still available for use in fulfilling a take-out and delivery service) represented about 25% of the total square footage, the Court partially excused the tenant from paying the full rent while the Executive Order remained in effect.

It is important to note this is a proceeding in bankruptcy court and even in that context is technically not binding on other jurisdictions.  It is also important to note that even though the contract clause carved out “lack of money” as a basis for invoking the clause, the specific reference to “governmental action” and “orders of government” gave the court a foothold to decide that these facts, although perhaps causing a lack of revenue, where the basis for invoking the clause and awarding the tenant partial relief from it’s full payment obligation.  As with all decisions of the courts, they are very fact-specific, although it may be interesting to see if other courts begin to use the reasoning as having some precedent value in these unprecedented times.

If you need more information or have any questions, don’t hesitate to contact Angela Gonzalez or me, Joe Rosenbaum, or the Rimon Law lawyer with whom you regularly work.