USSC I: Employee's Job-Acquired Impairment Is
Not Covered by ADA Because Disability Does Not Affect Major Life
Activity. With uncharacteristic
unanimity, the U.S. Supreme Court has ruled that an employee's
carpal tunnel syndrome, acquired on the job, which makes it difficult
for her to do her job, but which does not affect her ability
to care for herself off the job, does not render her "disabled"
within the meaning of the Americans
with Disabilities Act (ADA), 42 U.S. C. Section 12101, et
seq. In a case closely watched by employers across the nation,
the Court limited the reach of the ADA, holding that the Act's
requirement that the injury affect "major life activities"
means that "the central inquiry must be whether the claimant
is unable to perform the variety of tasks central to most people’s
daily lives," such as "household chores, bathing, and
brushing one's teeth." The Court found that repetitive work
with hands and arms extended at or above shoulder levels for
extended periods is not an important part of most people’s
daily lives. Toyota
Motor Manufacturing, Kentucky, Inc. vs. Williams, No. 00-1089,
(January 8, 2002). Commentary at law.com,
and findlaw.com.
USSC II: EEOC Can Override Mandatory Arbitration
Clauses in Employment Agreements.
Although recent U.S. Supreme Court decisions have approved of
mandatory arbitration clauses in employment agreements, declaring
them enforceable under the Federal
Arbitration Act, 9. U.S. C. Section 1, et seq., the
high court has now ruled that the Equal Opportunity Employment
Commission (EEOC) may step into such disputes. Less than a year
ago, the Court ruled in Circuit
City vs. Adams, 532 U.S. 105 (2001), that such mandatory
arbitration clauses were enforceable. However, writing for the
majority, Justice John Paul Stevens wrote in EEOC
v. Waffle House Inc., No. 99-1823, that "the pro-arbitration
policies of the Federal Arbitration Act do not require the agency
to relinquish its statutory authority if it has not agreed to
do so." Report
and commentary.
First Impression: Employer's Failure to Post FMLA Notice
Culpable Under the Family and Medical Leave Act. The Family
and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq.
(FMLA) provides for paid employee leave in the event of certain
emergencies, but requires that the employer post an FMLA notice
and advise the employee regarding eligibility. In a case of first
impression, the employer's failure to post the FMLA notice required
by statute, and failure to inform the employee that she was ineligible
for paid leave under the FMLA constitutes a "material misrepresentation,"
so that the employer is barred from raising the defense of ineligibility,
even though the employer intended no deception. Kosakow
v. New Rochelle Radiology Associates, P.C., # 00-7392, Fed
Ct. App. 2d Cir. (December 20, 2001).
Three For One: Pass One Bar,
Admitted to Practice in Three States. In a program designed to address
the increasing need for the multi-jurisdictional practice of
law, (often a part of a transactional business law practice),
three states have joined together to offer a program: Pass the
Bar Exam for one state, and be licensed in all three - Washington,
Oregon and Idaho. The program also requires 3 years practice
experience, and continuing legal education. Other states are
discussing similar programs. See the article in the premier issue
of the new ABA
e-Journal.
Clickwrap License Agreement
Held Enforceable Under UCC. Despite Article 2’s requirement
of a "sale," as opposed to a "license", courts
in Massachusetts have assumed, without deciding, that Article
2 of the Uniform Commercial Code (UCC) governs software licenses.
In this very readable case, the clickwrap license was held to
override the contradictory purchase order. In effect, what the
purchase order gave, the clickwrap license took away, with drastic
consequences for the buyer/licensor. i.Lan
Software, Inc. vs. Netscout Service Level Corp., No. 00-11489-WGY,
U.S.D.C. Mass. (January 2, 2002).
Bankers May Be Liable for
Encouraging Investment With "Good Businessmen" Who
Were Bankrupt. Summary Judgment should not have
been granted where Plaintiff alleged that Defendant bankers told
Plaintiff that prospective business partners were "good
businessmen" and "good customers of the bank"
in order to induce Plaintiff to invest in their business, when
the bankers knew that the proposed development at issue faced
serious opposition and that Plaintiff's prospective "partners"
were bankrupt. Schrager
vs. North Community Bank, No. 1-99-3727, Ill.App.Ct., 1st
Dist., 1st Div., (January 14, 2002).
No Antitrust Violation Because
Competitor Did Not Price Product Below Cost. A divided Third Circuit Federal
Appeals Court has ruled that 3M, the Minnesota-based transparent
tape manufacturer, did not violate Section 2 of the Sherman
Act when it offered retailers a bundled "rebate"
if it would remove the products of Ontario-based competitor LePage's,
Inc. from retail shelves, since 3M never priced its products
below their cost. The decision overturns a $68 million dollar
verdict in favor of LePage's, Inc. The dissent warns that the
ruling will "weaken Section 2 of the Sherman Act to the
point of impotence." LePage's,
Inc. et al, vs. 3M (Minnesota Mining & Manufacturing Co.),
et al, Nos. 00-1368 and 00-1473, 3rd Cir. Ct. App., (January
14, 2002). Also see report.
A Review of 2001 Major Intellectual
Property Cases; Tasini Leaves Online Databases Decimated, Frustrating
Research. The National
Law Journal provides the
year in review of major intellectual property cases, including
The
New York Times Co., Inc. vs. Tasini, 121 U.S. S Ct. 2381
(2001), which held that republication of the work of free-lance
writers in computer databases such as Lexis/Nexis by publishers,
including the New York Times, infringed the writers' copyrights.
Rather than pay the writers, publishers have removed the works,
citing their inability to pay. As a result, scores of documents,
reports and articles posted on the internet and available for
free have been removed, leaving online databases no longer trustworthy
for scholarly research. For report
and analysis, see this article in the Chronicle of Higher
Education.
The Continuing Fallout:
Many Change Careers After 9-11... Maybe they found their jobs too
stressful, or maybe they were ready for a change anyway, but
anecdotal evidence suggests that many people - from CEO's to
the rank and file - have made major
career changes since the twin towers fell on September 11,
2001. To many, those events were "a swift and dramatic reminder
that life is fleeting and work isn't all there is." From
the WSJ.com
Career Journal.
Tips and Trends. New
Securities Website: For a comprehensive,
easy to use website regarding securities regulation, read this
review,
then subscribe for a two week free trial. The
Web Shrinks: According to Internet survey firm Netcraft,
the number of existing websites declined by 182,142 between November
and December, 2001. Spam
Increases: No, it's not just your imagination. there
IS more spam coming to your mailbox. Small
Business Bankruptcies are expected to rise during 2002. Online
Privacy and Security: Increase your privacy and security
with these 10 tips.