Edward Sharkey's blog

New Case Protects Businesses’ Copyrights in Employee-Generated Content

Posted by Edward Sharkey on Mon, 11/26/2012 - 05:00

A lot of businesses create content that they want to protect by copyright. This includes designers, architects, software developers, consultants, retailers, and publishers. In a recent decision issued by the 9th Circuit Court of Appeals, the court was asked to rule on complicated questions regarding the ownership of copyrights to software created by a business's employee.

May You Discriminate Based on "Personal Appearance"?

Posted by Edward Sharkey on Wed, 10/17/2012 - 14:29

The hiring practices of a Boston-based coffee shop could be the impetus behind creation of the country’s newest protected class in employment discrimination cases: unattractive people. Earlier this year, the Equal Opportunity Employment Commission (“EEOC”) began investigating the coffee shop for what is being called a “beauty bias”. The coffee shop allegedly only hires young, attractive, female employees to staff roughly 30 locations throughout Massachusetts and Rhode Island.

Pending Case May Overturn Business-Friendly Maryland Law

Posted by Edward Sharkey on Mon, 09/17/2012 - 04:00

A case currently before the Maryland Court of Appeals will determine whether a 160-year-old legal rule in the state will be overturned, and it may have tremendous implications for Maryland businesses and business litigators. The legal principle is called “contributory negligence.” It provides that plaintiffs who contribute to their injuries through their own negligence, however slight, are not entitled to recover compensation, regardless of the defendant’s negligence.

Employers May Be Legally Liable for Unpaid Severance Under Maryland’s Wage Payment and Collection Law

Posted by Edward Sharkey on Wed, 09/12/2012 - 18:22

Pursuant to the Maryland Wage Payment and Collection Law (the “Law”), employees have a right to sue for unpaid wages. If a court finds that an employer has withheld wages in violation of the Law, the employee may recover three times the unpaid wages and attorneys’ fees. A recent opinion by the U.S. District Court for the District of Maryland makes it clear that, in some circumstances, severance pay is a wage that is covered by the Law.

Crowdfunding for Small Businesses and Startups

Posted by Edward Sharkey on Fri, 07/13/2012 - 21:38

Small businesses and startups are excited about a key provision of the new JOBS bill. For the first time, businesses can raise up to $1 million (each year) through public "crowdfunding", without having to register a public offering.

This is a tremendous simplification of the process.

What to do Upon Receiving a "No Match" Letter from Social Security

Posted by Edward Sharkey on Thu, 07/05/2012 - 16:47

When businesses hire a new employee, the government gets notice of his name and social security number. If they do not match the government's data, the Social Security Administration sends the employer a "no match" letter. This can be the result of government error. It can also mean the employee is using a false social security number.

The government has not given businesses guidance on what to do about it. The Department of Labor merely suggests that businesses give the employee time to resolve the issue with the government. It has not said what to do if that does not work.

New York Judge Dismisses $20 Million Suit Due to Insufficient Litigation Hold

Posted by Edward Sharkey on Tue, 06/05/2012 - 20:00

One of the biggest challenges businesses face when a dispute arises is managing the preservation of relevant records and information. Courts are becoming more serious about imposing sanctions on parties for failing to preserve electronically stored information (“ESI”) once they have notice of litigation or potential litigation.

We usually recommend, and most companies utilize, a document retention policy that includes the automatic deletion of ESI - such as email stored on a company server - after a certain period of time.

Once the possibility of a lawsuit arises, however, a business must implement a litigation hold, the purpose of which is to preserve documents “potentially relevant” to the litigation.

New Decision May Limit Businesses' Use of Federal Act to Address Employee Computer Fraud

Posted by Edward Sharkey on Thu, 05/17/2012 - 22:22

One legal tool available to businesses to address fraud perpetrated by employees is the Computer Fraud and Abuse Act (CFAA). The CFAA creates penalties for persons who, with the intent to defraud, access computer systems without proper authorization.

"Without proper authorization" includes "exceed[ing] authorized access." In some cases, companies have used this language to bring claims against employees who were authorized to access the computer in question, but who then took confidential information and misused it, in violation of company policy.

Businesses like the CFAA because it provides for damages normally not available under state law. Now, a recent decision by the U.S. Court of Appeals for the 9th Circuit may limit the usefulness of the CFAA for this purpose.

If You Want to Arbitrate a Lawsuit, Arbitrate

Posted by Edward Sharkey on Thu, 05/10/2012 - 21:51

In a recent opinion, a California court enforced a rule that applies in most states, including Maryland: a business may waive its right to compel arbitration of a lawsuit if it does not act reasonably promptly to invoke the right.

In the case, a claimant sued a business. The business had a contractual right to force the claimant to arbitrate the claim. Instead of moving to dismiss in favor of arbitration, however, the company answered the complaint, responded to discovery requests, and filed a motion to dismiss on other grounds. Four months later, the company made a demand for arbitration.

Don't Rent to Pitbulls

Posted by Edward Sharkey on Tue, 05/08/2012 - 14:16

In a recent opinion, the Maryland Court of Appeals established a standard of strict liability for harm caused by pit bulls (or pit bull mixed breeds). This is different from the standard applicable to every other dog, where liability must be based upon proof that the owner had reason to know of the dog's dangerous propensity. The traditional standard is why people commonly suggest that dogs are given "one free bite" before their owner will be held liable for injuries they cause.

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