What, Me Worry? If You Store Customers’ Personal Information on Your Computer System, You Should!

David R. Bohm

By David R. Bohm



ransomwareMAD Magazine’s Alfred E. Nuemann would famously say, “What, Me Worry?”  If you store personal information about your clients or customers on your computer, however, you should worry that it is properly secured.

Hackers and other malevolent individuals on the world wide web are constantly trying to compromise or steal data from your computer system to sell on the dark web.  They particularly target names combined with (1) social security numbers, (2) credit or debit card numbers or other account information, (3) security or access codes or passwords,  or (4) medical or health insurance information.

Another common form of cyberattack is to plant ransomware on a target’s computer system.  Ransomware encrypts the data on the system making it inaccessible to the system’s owner, leaving a ransom note as the only thing readable on the affected system. Continue reading »

Is the Arbitration Provision in Your Employment Contract Enforceable?

David R. Bohm

By David R. Bohm



arbitrationMany employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Video Depositions – the New Normal for the Age of Social Distancing

David R. Bohm

By David R. Bohm



The Circuit Courts for St. Louis City and County have both issued Administrative Orders that approve of taking of depositions by video conference.  Both of these orders require that a party opposing the taking of a deposition by video conference, for that reason alone, has the burden to prove that the deposition not go forward (i.e., that the deposition notice be quashed).

video deposition

At a Town Hall videoconference on April 16, Judge Rex Burlison, the presiding judge of the St. Louis City Circuit Court, made clear that, at least in the city, a party opposing the taking of a deposition by videoconference will have a difficult time convincing the court not to permit such deposition to go forward.  For now, at least, in the age of social distancing amidst fear of the COVID-19 virus, it appears that videoconference depositions will be the new normal.

However, there are real issues that need to be addressed concerning depositions by videoconference.  Perhaps the most important has to do with the security of the videoconference platforms used by court reporting services.  In a survey of several large national court reporting services and one smaller service, they all reported using Zoom for depositions, despite recent reports by credible sources that Zoom has been hacked and is not secure.  Unless and until these security concerns are addressed, I will oppose taking of depositions over Zoom (although other services may be more secure).  The security of depositions is of particular concern when depositions involve businesses’ confidential information or otherwise will address sensitive information.

There are also questions regarding the preservation of video and audio of depositions, including how this will be done, how parties can access any recordings, and whether storage of any such video and/or audio is secure.  Again, the security of recordings of Zoom conferences has also been reported to be an issue. Continue reading »

Coronavirus Scams and the FTC

David R. Bohm

By David R. Bohm



Hat tip to my friend, Harold Kirtz, who is a senior litigator with the FTC:

It is important that we, and our employees, families and friends, be vigilant for various scams playing off coronavirus fears.  For your information, click on the link below for a good summary from the FTC concerning various of these types of scams. 

cybersecurity

More than ever, it is important that we engage in safe internet practices.

Coronavirus Scams – What the FTC is Doing

Additional Resources:

COVID-19 Business Operations for Danna McKitrick

Coronavirus/COVID-19 Resource Center

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

(c) tashatuvango www.fotosearch.com

DOL Final Overtime Rule Published – Effective 1/1/20, Minimum Exemption Threshold Set at $35,568 Annually

David R. Bohm

By David R. Bohm



The U.S. Department of Labor (DOL) has finally issued its long-awaited final rule updating its regulations defining exemptions for executive, administrative, and professional employees.

Some of the key take-aways from the new regulation are:

  1. The “standard salary level” to qualify for the exemption has been raised from $455 per week to $684 per week ($35,568 annually). Employees paid less than this amount after January 1, 2020 will not qualify for the exemption and will have to be paid overtime for working more than 40 hours per week.overtime exemption
  2. The total annual minimum compensation level for “highly compensated employees” (“HCE”) has been increased from $100,000 to $107,432 annually.
  3. Employers may use nondiscretionary bonuses and incentive pay (including commissions) that are paid at least annually to satisfy up to 10% of the standard salary level.
  4. There are special provisions for workers in U.S. territories and in the motion picture industry.

Continue reading »

Hold the Scissors – Telling Employee to Cut Hair Can Lead to Your Company Suffering a Haircut

David R. Bohm

By David R. Bohm



We have all seen hairstyles that made us ask the question, “What were they thinking?” But when employees show up with such hairstyles in our place of business, do we have the right to restrict hairstyles? Does it make a difference if the hairstyle – or even a head covering – is due to the employee’s religious beliefs?

Recent federal court decisions have made it clear that an employer must tread carefully when addressing an employee’s choice of hairstyle or head dress. Otherwise, it could be the employer being subject to a “haircut,” rather than the employee.

Accommodating Religious Beliefs

Of particular concern are cases where an employee’s choice of hairstyle or head dress may have a religious basis. In such cases, an employer has a duty under Title VII of the federal civil rights act (and in most states under state law, as well) to reasonably accommodate the employee’s religious beliefs. Failure to do so could result in the employer being found liable for religious discrimination, and being required to pay actual and punitive damages, as well as the employee’s legal fees.

In one recent case, reported in an EEOC press release issued April 27, 2012, the owner of a chain of Taco Bell restaurants agreed to pay $27,000 to resolve a religious discrimination lawsuit filed by the EEOC because the owner had fired an employee who refused to cut his hair. The employee was a practicing Nazirite, who, in accordance with his religious beliefs, had not cut his hair in 15 years. After being employed at one of the owner’s restaurants for six years, the employee was told he would have to cut his hair if he wanted to retain his job. Even though he explained that his religion forbade him from cutting his hair, the employer insisted he had to do so if he wanted to keep his job. As the EEOC attorney handling the case, Lynette Barnes, explained in the press release, “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.” In addition to paying the $27,000, the employer agreed to institute a formal religious accommodation policy.

Continue reading »

Is This by Consent? Changes to Missouri Supreme Court Rule Affect Use of Non-party Subpoenas

David R. Bohm

By David R. Bohm



Part of a series on issues related to Manufacturers, Distributors and International Trade

Co-authored by David R. Bohm and David A. Zobel

A major change involving subpoenas to non-parties has hit the business world in the state of Missouri.

A new amendment to the Missouri Supreme Court Rules now requires non-party record custodians to physically appear at deposition to produce subpoenaed items, unless all parties to the litigation have agreed that the subpoenaed party may produce the items without appearing.

The amendment changes the prevailing practice where parties send out subpoenas to third parties with a letter explaining that they will be excused from appearing at deposition if they produce the requested items along with what is known as a business records affidavit.

Rule 57.09, as amended, now requires parties to first obtain consent from all other parties to the litigation before a subpoenaed witness may produce documents without attending the deposition. This agreement must be communicated to the witness in writing. Absent this agreement, a witness must appear to produce subpoenaed items at deposition.

What does this mean to you? If you receive a subpoena, you may only produce the documents to the party serving the subpoena without appearing at deposition if that party represents to you in writing (e.g., in a letter) that all other parties have consented to production of the docume

nts without need for you to appear at the deposition. Such a letter should protect you from allegations that you improperly produced records by mail, instead of bringing the documents to the deposition. You do not need to see the actual agreement. If you have any questions as to whether you can simply mail the documents, instead of appearing at deposition, you should either call your attorney for advice or simply wait and bring the documents at the time and place designated in the subpoena.

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To Prevail on a Trademark or Unfair Competition Claim There Must Be a Likelihood of Confusion

David R. Bohm

By David R. Bohm



Part of a series on issues related to Manufacturers, Distributors and International Trade

In order to prevail on a claim of trademark infringement under the Lanham Act (the federal trademark law), a common law claim of trademark infringement, or a claim of unfair competition, a plaintiff is required to show that the infringing use be “likely to cause confusion or to cause mistake.” 15 U.S.C. § 1114(a).

In Sensient Technologies Corp. v. Sensory Effects Flavor Co., 636 F.Supp.2d 891, 899 (E.D.Mo. 2009), the Court set out determine whether such a likelihood of confusion existed. To make the determination, the Court

“… [considered] six nonexclusive factors.” Everest Capital Ltd. V. Everest Funds Management, LLC, 39 F.3d 755, 759 (8th Cir. 2005). These factors are:

“(1) the strength of the owner’s mark; (2) the similarity of the owner’s mark and the alleged infringer’s mark; (3) the degree of competition between the products; (4) the alleged infringer’s intent to ‘pass off’ its goods as the trademark owner’s; (5) incidents of actual confusion; and (6) the type of product, its cost, and conditions of purchase.”

Luigino’s Inc. v. Stouffer Corp., 170 F.3d 827, 830 (8th Cir. 1999).

Step One in the determination of a claim of trademark infringement involves the strength of the owner’s mark. If a mark is generic, it is entitled to no protection. If the mark is descriptive (which is the weakest category of protectable marks), it is only entitled to protection where the mark has developed secondary meaning; i.e., where the mark is widely recognized as identifying the source of the goods.

A generic term can never function as a trademark because it refers to the common name or nature of the article. Id. A generic term does not identify the source of a product, but rather indicates the basic nature of the product. See id…. “Because a generic term denotes the thing itself, it cannot be appropriated by one party from the public domain….” Likewise, descriptive terms are generally not protectable because they are needed to describe all goods of a similar nature. Such a term describes the ingredients, characteristics, qualities, or other features of the product…to be afforded protection, then, a descriptive term must be so associated with the product that it becomes a designation of the source rather than a characteristic of the product. Schwan’s IP, LLC v. Kraft Pizza Co., 460 F.3d 971, 974 (8th Cir. 2006).

 

“A strong and distinctive trademark is entitled to greater protection than a weak or commonplace one.” SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1091. (8th Cir. 1980).

Strong marks are those that are suggestive, fanciful or arbitrary, with the last classification (essentially made up words) being the strongest.

Continue reading »

Amendments to FMLA Extend New Leave Rights to Family Members of Military Personnel

David R. Bohm

By David R. Bohm



Within the last several days, President Bush signed the National Defense Authorization Act, which included amendments which expanded the coverage of the Family and Medical Leave Act (“FMLA”). These changes provide job-protected unpaid leave to covered workers to care for family members who are injured or become ill while serving in the armed forces, and when reservists are called to active duty in a “qualifying exigency” (a term which is likely to be defined under future regulations to be issued by the Department of Labor, but which clearly includes service in Iraq and Afghanistan). Because the law did not have a specific effective date, it is effective immediately.

Wounded Service Members

Under the FMLA amendments, an eligible employee who is the spouse, child, parent or next of kin of a service man or woman is entitled to a total of up to 26 weeks of unpaid leave to care for the servicemember if he or she is receiving medical care for, or recuperating from, a serious injury or illness suffered while serving in the military. The term “next of kin” has not previously been used in FMLA and is undefined by the statute. Exactly who qualifies as a “next of kin” is likely to be defined under new regulations to be issued by the Department of Labor (“DOL”). A serious injury or illness is one that renders a servicemember medically unfit to perform his or her military duties. The 26 weeks of leave can only be taken during a single 12-month period (i.e., can not be taken in successive years due to the same injury or illness). Leave may be taken intermittently. The employer must allow the employee to take leave in increments as small as the shortest period of time that the employer regularly tracks in its payroll system (e.g., if a time clock is utilized by an employer, the increment can be measured in minutes). If a husband and wife are employed by the same employer, they may be limited to taking a total of 26 weeks of unpaid leave between them.

Continue reading »

Choosing a Trademark or Servicemark

David R. Bohm

By David R. Bohm



So, you’ve decided to open a new business, or your current business is set to begin offering a new product line or set of services. Now you need to decide what you are going to call this new business, product or service. In other words, what trademark or servicemark (collectively referred to herein as “mark”) are you going to adopt to identify your product? This was a question my father faced when he opened his first photo studio in 1942. He chose the name Rembrandt Portrait Studio. As will be explained in this article, this was a good choice.

A company wanting protection for a mark that it will use in interstate commerce will generally want to register it with the United States Patent and Trademark Office (“USPTO”). If the mark is only used in one state or a limited number of localities, a company may choose to register with a state trademark registry, or rely on common law protection (even unregistered marks may be entitled to some protection). A mark may not be registered if it (or a similar mark) is already in use to describe a competing product or service.

Continue reading »