Author Archives: Henry Sneath

Pittsburgh Law Firm @HoustonHarbaugh Announces Formation of #CovidLaw Response Group

www.CovidLawResponse.com

The COVID-19 pandemic has presented an array of legal issues that many of our clients and peers are suddenly faced with addressing at a rapid pace. At Houston Harbaugh, we have assembled a designated CovidLaw Response Group to assist our clients and relay updates and information as they continue to unfurl (See our COVID-19 Law newsletters and blogs at: www.CovidLawResponse.com). Members of the group can be found below:


Our lawyers in this group are closely monitoring and assisting clients with all COVID-19 related issues in the following areas:

  • Business Litigation
  • Business Loan Programs- EIDL and SBA Loan Programs
  • CARES Act
  • Corporate Law
  • Employment Law including Return to Work Policies and Templates and PA State Orders for Workplace Safety and Health
  • Environmental Law
  • Families First Coronavirus Response Act- Paid Sick Leave and Amendments to FMLA
  • HHS Grants for Medical Practices- EIDL and PPP Program
  • Insurance Coverage including Business Interruption and Civil Authority
  • Intellectual Property
  • Paycheck Protection Program- Forgiveness and Certifications
  • Probate Estates & Trusts Litigation
  • Real Estate Leasing and Financing
  • Retirement Plan Contributions, Distributions and Loans
  • Stay at Home Orders
  • Unfair Competition and Counterfeiting


We are here to help navigate these new and challenging matters and are equipped with the technology to safely and thoroughly consult with our clients. Please reach out with any questions. 

www.CovidLawResponse.com

Tags: CovidLaw, COVID-19, Covid Law Response, CoronavirusLaw Response GroupPittsburgh law firm

Related Posts: COVID-19 Responses Allow Cafeteria Plan FlexibilityPennsylvania Supreme Court Denies Request To Exercise “King’s Bench” Jurisdiction Over All State Court COVID-19 Coverage CasesCoronavirus Workplace Infection Control PolicyInsurers and Amici Resist Application for Pennsylvania Supreme Court’s Exercise of King’s Bench Jurisdiction Over COVID-19 Coverage Cases

Redefining Your Business Strategy for Post #Covid – 19: A Free @Simio Webinar Tomorrow May 7, 11:00 AM – #DataSimulation*

How do you plan for today and the future in a time of uncertainties? Do you simply wait out the pandemic, or apply analytics to develop workable strategies that keep your business functional?  

This FREE and short Simio webinar TOMORROW on May 7th, 2020 at 11:00 am ET (3:00 pm UTC) will share insights that will allow you to see how you can apply simulation to evaluate different response scenarios for your business.  
  Tomorrow’s webinar will give a glimpse into data simulation and how it can be used to predict outcomes based on your available options. It will also showcase the importance of data simulation modeling in providing insight for capacity planning and predictive analytics during a pandemic and a post-pandemic scenario. Stakeholders, managers, and decision-makers will learn valuable lessons on advanced planning and resource management using Simio as an analytical tool. This webinar will also help employees across every industry understand why certain decisions are been taken and the importance of resource management.  Regardless of your industry, you will learn how to apply simulation to enhance daily operations and manage complex processes.  
Presenters: 1) Dan O’Neil, Health Systems Innovation Lead at Johns Hopkins University Applied Physics Laboratory 2) Adam Sneath, Application Engineer at Simio.
Click Here to Register Today: or use this link to Simio, LLC in Pittsburgh: https://www.simio.com/resources/webinar/2020-05-07-Simio-Webinar.php

* This announcement is not providing legal advice or is it in any way an endorsement of SIMIO by any lawyer or law firm, but merely a suggestion of a possible resource for businesses and individuals as businesses and health care facilities re-open. Houston Harbaugh and Henry Sneath are not involved in the content development, nor presentation of this program.

#3M® Sues NJ Based #PerformanceSupply, LLC for #N-95 Mask #Trademark Infringement and #Covid Related #PriceGouging

https://www.3m.com/3M/en_US/company-us/search/?Ntt=n95+masks

Plaintiff #3M® Company filed suit in the USDC SDNY on Friday against New Jersey based Performance Supply, LLC alleging Trademark Infringement, Unfair Competition, False Endorsement, False Designation of Origin, False Advertising, Trademark Dilution, NY State Law Deceptive Acts and Practices, and seeking Injunctive Relief and Exemplary Damages. 3M indicates in the suit that any recovery of damages will be donated to Covid-19 related charities. See the Complaint as filed here:

3M claims that Performance Supply falsely tried to obtain a purchase order and sell through a quote to the City of New York, millions of #N-95 Respirator Masks to be used in the battle against #Covid-19. Performance allegedly used the 3M marks (including the TM phrase “3M Science. Applied To Life”®) and 3M references liberally in its proposal and sought to confuse and deceive NY City into believing that Performance Supply and 3M were aligned and working together on the offer to sell masks. Further, the lawsuit alleges that Performance engaged in price gouging in seeking to charge NY prices that were 500-600% above 3M’s list price.

3M alleges that its marks are incontestable, arbitrary and strong and have long been associated with safety masks and equipment. They stress that during this Corona virus crisis, 3M HAS NOT INCREASED ITS PRICES and that this marks a strong comparison to Performance which is accused of price gouging and other business torts under both Federal and NY State Laws. Performance, sought a purchase order from NY through a quote sent to NY’s procurement director. In its formal quote, Performance states that “acceptance of the purchase order is at the full discretion of 3M…” This is alleged by 3M to show a false designation of origin and false endorsement by 3M of the quote. 3M is represented by Mayer Brown LLP.

Posted by Henry M. Sneath, Esquire Co-Chair Litigation Practice Group and Chair of the IP Practice Group: Houston Harbaugh, P.C.  401 Liberty Avenue, Pittsburgh, Pa. 15222. Sneath is also an Adjunct Professor of  Law teaching two courses; Trade Secret Law and the Law of Trademarks and Unfair Competition at Duquesne University School of Law. Please contact Mr. Sneath at 412-288-4013 or sneathhm@hh-law.com

#CARESAct Passes Congress: See link here to the Act which is meant “To provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 #coronavirus #pandemic.” #Covid #CoronaUpdate

Here is the #CARESAct passed this week by both houses in full for easy reference:

#HoustonHarbaugh will be publishing various opinions and guides to the provisions of the CARES Act in the near future.

#ClassAction Lawsuit Challenges #Pennsylvania #Governor #Wolf’s #COVID-19 #Closure Order

Commonwealth of Pa. Flag

What appears to be the first constitutional challenge to #Pennsylvania Governor #Wolf’s #Covid-19 Closure Orders has been filed in the Pennsylvania Eastern District (Philadelphia) Federal Court. In Schulmerich Bells, LLC et al v. Thomas W. #Wolf (Governor of Pa.) and Rachel Levine, M.D. (Pa. Sect of Health) the Plaintiffs bring class action and declaratory judgment claims challenging the constitutionality of the Governor’s Covid-19 mitigation closure orders which shut down the physical operations of many Pennsylvania businesses deemed not to be “life sustaining”. See the Complaint here:

The Complaint begins with the “takings” quote from the 5th Amendment as cited in Armstrong v. United States, 364 U.S. 40 (1960) that the guarantee that “private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Interesting start in this context. The theory appears to be that the Governor has placed the “cost of these closure orders – issued for the benefit of the public – squarely upon the shoulders of private individuals and their families” without just compensation. Schulmerich, from Bucks County, is alleged to be the oldest manufacturer of orchestral quality musical handbells in the US.

Schulmerich repairs handbells and chimes and claims that Spring and Summer are its busiest seasons. Plaintiff’s claim a trickle down effect for their employees, suppliers, performing customers and so on. The company has already laid off 9 workers. The purported class is broad and appears to contemplate inclusion of anyone affected by these orders. Alleged exclusions from the class include inter alia, any persons unemployed at the time of the orders, and any persons working for companies deemed to be “life sustaining”, which were not ordered to be closed. The Plaintiffs claim that the class members could number in the millions. We will monitor this and other similar lawsuits.

Covid 19: Health First, Lawsuits Later?

It would be great if in the midst of the Covid-19 pandemic, that the world could simply focus on health, safety, family and employee issues, but the lawsuits have started. We will monitor them as they will ramp up. Many state and federal courts are shutting down or slowing down so it is unclear when the Covid related suits will actually see a day in court. In New Orleans, an interesting, (albeit somewhat disturbing in the timing), lawsuit has been filed seeking a declaratory judgement against the Governor of Louisiana and global insurer Lloyds of London. Plaintiff Cajun Conti – Oceana Grill Restaurant is seeking property and business interruption insurance from Lloyds, even before they have apparently made a claim. The suit before insurance claim and denial is odd. The suit may be politically motivated. The lawsuit is attached hereto.

Plaintiff restaurant seeks “property damage” for virus contamination of its restaurant, and “business interruption” coverage for the obvious shutdown brought about by government order. If you subscribe to Law360 there is an interesting write-up at: http://tinyurl.com/qscl9m8 “Oceana Grill, which is in New Orleans’ French Quarter, argued that its “all risk” policy with the Lloyd’s underwriters should kick in under the circumstances, noting that the policy doesn’t contain any provisions excluding coverage for losses stemming from viruses or global pandemics.” (Law360) “In its suit, Oceana Grill noted that its policy with the Lloyd’s underwriters requires the existence of a “direct physical loss” to property for coverage to apply. According to the restaurant, that requirement is satisfied by the coronavirus pandemic, given that the virus can remain on surfaces for days. Both Governor Edwards and Mayor Cantrell cited concerns over possible physical damage to properties to support their restrictions.” (Law360)

COVID-19: Latest from Houston Harbaugh, P.C. Pittsburgh, Pennsylvania

High Resolution Covid-19

The latest and best information on Covid-19 should be sought from the CDC. Our law firm Houston Harbaugh, P.C. in Pittsburgh, Pennsylvania www.hh-law.com remains open and fully functional to serve our clients and others seeking legal assistance during this incredibly difficult time. We are complying with the Pa. Commonwealth’s Governor’s Order that all non-life-sustaining businesses remain physically closed and work remotely when possible. We are fully functional in that regard. See the most recent Pennsylvania Covid-19 Mitigation Orders and Guideline. Our law firm’s employment department Chair Craig Brooks issued some important workplace guidelines which should be helpful to businesses and employers as they struggle with the fallout from the Covid disease and related mitigation efforts in this and other states. Click here to see our website and employment guidelines.

Supreme Court Rules That Government is Not a “Person” Under the America Invents Act

ByCarissa T. Howard of Counsel at Houston Harbaugh

Federal law has allowed for third party requests for reexamination of an issued patent on the basis on prior art since the 1980s. Under the America Invents Act of 2011 (AIA), three review processes replaced what was then known as “inter partes reexamination.” These three review proceedings enable a “person” other than the patent owner to challenge the validity of a patent post-issuance: (1) “inter partes review,” §311; (2) “post-grant review,” §321; and (3) “covered-business-method review” (CBM review). As an alternative to or in connection with a patent litigation, an interested third party, an accused infringer, or any “person,” can request one of these types of reviews.

In Return Mail v. Postal Service, the Supreme Court held that “[t]he Government is not a “person” capable of instituting the three AIA review proceedings.” https://www.supremecourt.gov/opinions/18pdf/17-1594_1an2.pdf (June 10, 2019)

Return Mail sued the US Postal Service (part of the US Federal Government) for infringing its mail processing patent and Postal Service petitioned for CBM review under the AIA.  The PTO agreed that the patent claimed ineligible subject matter, and cancelled the claims. On appeal, the Federal Circuit affirmed. Now, the Supreme Court has reversed – holding that the Government is not a person under the statute and therefore cannot petition for AIA review.

Justice Sotomayor led the conservative majority joined by Chief Justice Roberts and Justices Thomas, Alito, Gorsuch and Kavanaugh.  Justice Breyer wrote in a dissent that was joined by Justices Ginsberg and Kagan.

The majority here started with its presumption that congressional statutes are not intended to bind or be directed to U.S. Government activity. Here, the court looked and did not find sufficient textual language to overcome that initial presumption.   In particular, the word “person” is used many times in the Patent Act (at least 18 times) and in several different ways.  There is basically no indication that this particular use of “person” was designed to include the U.S. Government. The majority also noted the awkwardness:

Finally, excluding federal agencies from the AIA review proceedings avoids the awkward situation that might result from forcing a civilian patent owner (such as Return Mail) to defend the patentability of her invention in an adversarial, adjudicatory proceeding initiated by one federal agency (such as the Postal Service) and overseen by a different federal agency (the Patent Office).

The dissent argued that the government-not-a-person presumption is rather weak and was overcome by the Patent Act.  In particular, the majority notes that Federal agencies are authorized to apply for patent protection — even though the statute states that a “person” shall be “entitled to a patent.” See 35 U. S. C. §§ 207(a)(1) and 102(a)(1).

Carissa T. Howard is an intellectual property attorney with over 16 years of experience, Carissa’s practice is focused in federal court intellectual property litigation, patent prosecution, trademark prosecution, intellectual property counseling, and contract drafting. She also has experience in intellectual property licensing and preparing due diligence, infringement and validity opinions. She can be reached at howardct@hh-law.com or 412-288-2213

SCOTUS Landmark Trademark Licensing Decision: Mission Product Holdings, Inc. v. Tempnology, LLC, NKA Old Cold LLC No. 17-1657

Has “the most significant unresolved legal issue in trademark licensing” finally found some closure? Circuit courts have long been split over whether bankrupt trademark owners could revoke a license and on what the effect is, generally, of a rejection of an executory contract. On Monday May 20th, 2019 the U.S. Supreme Court ruled that defunct brand owners (as debtors in Chapter 11) cannot use bankruptcy law to unilaterally revoke (reject) a trademark license agreement. The court held that bankruptcy “rejection” of an executory contract trademark license (a contract that neither party has finished performing) under Section 365 was akin to a breach of contract outside of bankruptcy. Per Justice Kagan: “A rejection (of any executory contract) breaches a contract but does not rescind it.” The licensee should not lose its right to use the debtor’s trademark under license. [Kagan] “Such an act cannot rescind rights that the contract previously granted.” Read here for the entire SCOTUS decision in Mission Product Holdings, Inc. vs. Tempnology, LLC. or here for a quick summary of the decision from Law360. 

Posted by Henry M. Sneath, Esquire Co-Chair Litigation Practice Group and Chair of the IP Practice Group: Houston Harbaugh, P.C.  401 Liberty Avenue, Pittsburgh, Pa. 15222. Sneath is also an Adjunct Professor of  Law teaching two courses; Trade Secret Law and the Law of Trademarks and Unfair Competition at Duquesne University School of Law. Please contact Mr. Sneath at 412-288-4013 or sneathhm@hh-law.com

Was the 2017 “NotPetya” Ransomware Attack an Act of War?

This is the question being litigated in a high-stakes cyber insurance coverage dispute between global snack food giant, Mondelez International, and its insurer, Zurich American Insurance Company, in Illinois state court. “NotPetya” was a 2017 ransomware attack in which infectious code impacted a number of global corporations, including Mondelez, encrypting computer hard drives and demanding payment for access to the data. Mondelez claims that it suffered damage to its hardware and operation software systems valued in excess of $100 million as a result of the attack. In early 2018, the U.S. and its allies publicly attributed the cyberattack to the Russian government. Russia denied the allegations. Modelez submitted an insurance claim to Zurich under an all-risk property insurance policy. Mondelez alleges that Zurich denied the claim based on a policy exclusion that excluded coverage for “loss or damage directly or indirectly caused by or resulting from … [a] hostile or warlike action … by any government or sovereign power … or agent or authority [thereof].” In October 2018, Mondelez filed suit against Zurich in Cook County, Illinois to determine whether the exclusion applies. According to the docket the case is currently pending, and working its way through the discovery process.

This case is being closely watched by corporations and insurers alike as it may have broad implications on cyberattack coverage for both traditional and specialized cyber insurance policies that contain the same or similar exclusions. What evidence will the insurer present to seek to prove that this war exclusion applies?

Pieces by Brian Corcoran on Lawfare (here) and Jeff Sistrunk on Law360 (here) each contain in-depth discussions of the case and its potential implications on the cyber insurance market. The docket for the case can be found here (select the Law Division and enter Case Number 2018-L-011008).

Posted by R. Brandon McCullough attorney at Houston Harbaugh, P.C. 401 Liberty Avenue, Pittsburgh, PA 15222. Brandon concentrates his practice primarily in the areas of insurance coverage and bad faith litigation, complex commercial and business litigation and appellate litigation. Please contact Mr. McCullough at 412-288-4008 or mcculloughb@hh-law.com with any questions pertaining to this article or any other legal matters.